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.


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.


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.


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.


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).


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.


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).


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.


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.


Ann Woolhandler & Michael Collins: Federal Supremacy and State Jurisdictional Duties
Michael Ramsey

Ann Woolhandler (University of Virginia School of Law) & Michael G. Collins (University of Virginia School of Law) have posted Federal Supremacy and State Jurisdictional Duties on SSRN.  Here is the abstract:

Federal Courts scholarship often focuses on access to federal courts for the decision of federal claims. At the same time, many Federal Courts scholars insist that state courts must hear affirmative federal causes of action, even when the lower federal courts are open to the same claims—the very federal courts regarded by such scholars as superior to state courts. This article takes issue with suggestions that the state courts have broad duties to entertain affirmative federal claims, whether statutory or constitutional. There is little early support for requiring state courts to entertain affirmative federal statutory and constitutional claims, and considerable evidence against it. In the twentieth century, however, the Court began to compel state courts to take jurisdiction of certain federal statutory actions in a line of cases associated with Testa v. Katt. Such compulsion, however, was not justified by the Supremacy Clause or related arguments. The Court also occasionally required state courts to provide certain constitutionally necessary affirmative remedies, in a different line of cases associated with General Oil v. Crain. The constitutionally compelled remedies strand was based on a requirement that the states supply adequate remedies for certain federal constitutional violations, rather than a Supremacy-based command that the states provide the same causes of action that the federal courts provide, as under Testa. The effect of more recent Supreme Court decisions such as Haywood v. Drown and scholarly proposals following the Court’s 2016 decision in Montgomery v. Louisiana threaten to submerge the Crain line of cases into the Testa line, possibly requiring greater state court conformity with federal courts as to causes of action for raising constitutional claims. Such uniformity, however, threatens to diminish the role of the states in fashioning different solutions to problems of governmental illegality. State variation may be all the more important in light of frequently-voiced dissatisfaction with the Court’s federal habeas corpus doctrine and constitutional tort doctrine under 42 U.S.C. § 1983. State court duties thus will not necessarily enhance the enforcement of federal constitutional law, and might actually undermine it.


William Foster: Why Janus Is Indefensible on Neutral Principles
Michael Ramsey

William Foster (Student - Walter Payton College Preparatory High School) has posted Why Janus Is Indefensible on Neutral Principles on SSRN.  Here is the abstract:

In Janus v. AFSCME, the Supreme Court ruled that government employees may not be forced to pay anything to a union against their will. Such compulsion, the Court said, violates First Amendment free speech rights. This decision, however, lacks a firm basis in the law. As a purported exercise of neutral judgement power, the Court's reasoning makes little sense. It hyper-scrutinizes one bit of precedent while uncritically accepting others, with no satisfying explanation for this disparity. And its analysis of original meaning is cursory and evades the key issues. Ultimately, the Janus decision cannot be justified on neutral principles: neither original meaning nor precedent can adequately explain it.

It opens with this quote from Justice Scalia (from 1996):

And so, what comes with all of this sophistry? All sorts of rights that clearly did not exist at the time of the adoption of the Constitution and the Bill of Rights exist today … This is not, I caution you, a liberal versus conservative issue. Conservatives are fully as prepared as liberals to create new rights under this evolutionist theory of the Constitution.

I believe this is the first paper from a high school author featured on this blog.  I think it raises some challenging questions.


Josh Blackman & James Phillips: Corpus Linguistics and the Second Amendment
Michael Ramsey

At the Harvard Law Review Blog, Josh Blackman and James C. Phillips: Corpus Linguistics and the Second Amendment.  Here is the introduction:

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller, the dissenting Justices contended that this provision “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” In contrast, the majority opinion concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Both the majority and dissent relied on originalist arguments, so the case turned, in large part, on how the phrases “keep and bear Arms”—or more precisely “keep . . . Arms” and “bear Arms”—were understood in 1791.

At the time Heller was decided, both of us were persuaded by Justice Scalia’s majority opinion, which concluded that the Second Amendment protects an individual right to possess a firearm, without regard to militia service. Yet the Supreme Court considered only a fairly narrow range of sources to interpret the critical phrase, “the right of the people to keep and bear arms.” Indeed, Justice Scalia admitted that his analysis was limited to the “written documents of the founding period that we have found” (emphasis added). Likewise, Justice Stevens’s dissent cited “dozens of contemporary texts” (emphasis added). Today, big data allows us to do much better.

Brigham Young University recently released a new database known as the Corpus of Founding Era American English (COFEA). It organized nearly 100,000 texts with over 140 million words from the start of the reign of King George III (1760) to the death of George Washington (1799). (Justice Thomas recently cited COFEA in his separate opinion in Carpenter v. United States.) These documents are not all legal sources. Rather, the corpus—or “body” of works—also includes letters, newspapers, sermons, books, and other materials to show how people from all walks of life used certain words in various contexts during the 18th century. Through the approach known as corpus linguistics, scholars can now analyze how specific words and phrases were understood during this critical period.

Applying corpus linguistics to the Second Amendment leads to potentially uncomfortable criticisms for both the majority and dissenting opinions in Heller. Both Justices Scalia and Stevens should have expressed more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources that they reviewed. Going forward, judges and scholars should consider how corpus linguistics can be integrated into the broader field of constitutional interpretation to better understand the entire Constitution. This essay explores the principles of corpus linguistics in relation to three elements of the Second Amendment: “bear arms,” “keep . . . arms”, and “the right of the People.” This brief essay does not purport to provide a definitive resolution about the Second Amendment’s original understanding. Rather, this essay seeks to shed some light on the discrete textualist inquiries about which the majority and dissent in Heller disagreed, through the lens of corpus linguistics.

(Very much related to yesterday's post).


Alison LaCroix on Historical Semantics and the Meaning of the Second Amendment
Michael Ramsey

At The Panorama, Alison L. LaCroix (Chicago, History): Historical Semantics and the Meaning of the Second Amendment.  From the introduction:   

The task of understanding the meaning of the words and phrases that constitute legal texts has always been an important one, but the urgency is even greater today. The Constitution includes the following phrases, all controversial but none self-evident: “keep and bear arms”; “the recess”; “cruel and unusual punishment”; and “gifts, emoluments, offices or titles.” The leading modes of constitutional interpretation — originalism, textualism, and common-law constitutionalism — rely on distinct theories of meaning, but they do not agree on which meanings are relevant or even on what “meaning” means.

With my colleague Jason Merchant of the University of Chicago’s linguistics department, I have been working for the past three years on a project that brings together the fields of law and linguistics, as well as my other field, intellectual history. Our project, titled “Historical Semantics and Legal Interpretation,” brings together research in historical jurisprudence and in theoretical and computational linguistics in order to understand the meanings of words and phrases in context. Recent advances in theoretical and computational linguistics, as well as vast new corpora of American and English usage, make possible the precise identification of the lexical shifts that have occurred over the past two centuries.

And from further along:

Originalism’s version of a historical approach stands in stark contrast to the rigorous empirical research that Chief Justice Roberts dismissed as “sociological gobbledygook” in last term’s partisan gerrymandering case, Gill v. Whitford. Any informed modern speaker of English can read an old text and determine what it means, the theory implies. Moreover, the theory relies on a tool that most historians, as well as linguists, treat with caution: the dictionary. In particular, the justices tend to reach for Samuel Johnson’s Dictionary of the English Language, first published in 1755.

The Court’s recent decisions on the Second Amendment illustrate some potential problems with the non-specialist view of history. In District of Columbia v. Heller, decided in 2008, the Court addressed the constitutionality of a DC law regulating gun ownership. In a five-to-four decision, with Justice Scalia writing for the majority, the Court held that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia.

Justice Scalia’s reasoning was a triumphant moment for originalism. He began his opinion by describing the Court’s approach to the Second Amendment: “In interpreting this text, we are guided by the principle that [t]he Constitution was written to be under­stood by the voters; its words and phrases were used intheir normal and ordinary as distinguished from technical meaning.” By “normal and ordinary,” he meant “known to ordinary citizens in the founding generation.”

The Court’s analysis emphasized the complex structure of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Justice Scalia wrote that the “prefatory clause” (“A well regulated Militia, being necessary to the security of a free State”) “does not limit or expand the scope of the operative clause” (“the right of the people to keep and bear arms, shall not be infringed”). The prefatory clause was therefore useful only to “clarify an ambiguous operative provision.” Since the majority held that the operative clause clearly endorsed an individual right to keep and bear arms, they found that the prefatory clause simply announced “the purpose for which the right was codified.”

But our research demonstrates that the language of the Second Amendment points toward a more collective interpretation of the right of gun ownership than Justice Scalia’s opinion acknowledges. The prefatory clause’s reference to a “well regulated Militia” then becomes more meaningful than the Court suggested in Heller.

In our work, we have asked two questions: (1) Does the subject of “bear arms” always have to denote a collectivity? (2) Does the subject always have to be plural?

The post then presents a summary of the linguistic analysis.

(Thanks to Saul Cornell for the pointer.)


The Only Way that a U.S. Attorney General May Self-Recuse
Andrew Hyman

Often at the Originalism Blog we dwell upon the original meaning of constitutional provisions drafted centuries ago, but of course originalism applies just as much to modern statutes and regulations.  So, I would like to discuss how an originalist and textualist might approach the statutory and regulatory authority of a U.S. attorney general to recuse himself.

This is not entirely hypothetical.  Attorney General Jeff Sessions on March 2, 2017 announced that he “decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

Just as self-pardons are controversial as a constitutional matter, self-recusals ought to be controversial too, but as a statutory and regulatory matter.  After all, 28 C.F.R. 45.2 (upon which Attorney General Sessions has explicitly relied) says that a DOJ employee who thinks recusal might be appropriate must file a report with his supervisor who will then make the recusal decision: “If the supervisor determines that a personal or political relationship exists between the employee and a person or organization described in paragraph (a) of this section, he shall relieve the employee from participation....”  So, a self-recusal is impossible per this regulation.

More likely, the U.S. Attorney General is something more than a mere “employee” of DOJ, and so we would be better off looking at the U.S. Attorneys’ Manual, USAM 3-1.140 which says: “United States Attorneys cannot recuse themselves or their offices from cases or matters.  They must be recused by the designated Associate Deputy Attorney General.”  So, again, a self-recusal is forbidden by this DOJ policy.  

As far as I can tell, there is only one other legal route that could end with recusal of the U.S. Attorney General.  All DOJ attorneys must follow the ethical rules of the bar in which they practice, per 28 U.S.C. 530B.  This rule is also codified at 28 CFR 77.3.  And, the pertinent rule of the District of Columbia Bar's Rules of Professional Conduct is that, without the client’s consent, a lawyer cannot represent that client if “the lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer's responsibilities to or interests in a third party or the lawyer's own financial, business, property, or personal interests.'' See District of Columbia Bar, Rules of Professional Conduct 1.7(b)(4).  This D.C. Bar Rule does not forbid a self-recusal by the U.S. Attorney General, and it seems like the only way the AG could legitimately recuse himself.  

In my view, if Mr. Sessions is not a target or subject of the Mueller investigation, it is difficult to see how his professional supervision of that investigation might reasonably conflict with his personal interests.  Moreover, I do not understand why Sessions relies upon 28 C.F.R. 45.2 (applicable only to DOJ “employees”) rather than USAM 3-1.140 (applicable to DOJ officers at or below the level of U.S. attorney), but in any event his self-recusal decision apparently ought to be based instead upon the standard provided by 28 CFR 77.3 and D.C. Bar Rule of Professional Conduct 1.7(b)(4).  

P.S.  One other relevant statute is 28 U.S.C. 528, which applies to DOJ “employees” as well as to DOJ “officers” at or below the level of U.S. attorney.  This statute does not clearly refer to the Attorney General, but even if it does, it seems to be adequately implemented by 28 CFR 77.3 and D.C. Bar Rule of Professional Conduct 1.7(b)(4).

Cass Sunstein: Chevron As Law
Michael Ramsey

Cass R. Sunstein (Harvard Law School) has posted Chevron As Law on SSRN.  Here is the abstract: 

Chevron v. NRDC, the foundation for much of contemporary administrative law, is now under siege. The central objection, connected with longstanding challenges to the legitimacy of the modern regulatory state, is that the decision amounts to an unwarranted transfer of interpretive authority from courts to the executive branch. Some people think that the transfer is a recipe for a form of authoritarianism – and inconsistent with the proposition that it is the province of the judiciary to say what the law is. To assess such objections, the starting point is simple: Whether courts should defer to agency interpretations of law depends largely on legislative instructions. Under the Constitution, Congress has broad power to require courts to defer to agency interpretations (in the face of ambiguity), or to forbid them from doing so. If congressional instructions are the touchstone, and if the Administrative Procedure Act is the guiding text, there is a plausible argument that Chevron was wrong when decided; but the issue is intriguingly cloudy if the APA’s text is taken in its context. In these circumstances, Chevron should not be overruled. Doing so would introduce a great deal of confusion and increase the role of political judgments within the courts of appeals. Nonetheless, Chevron’s critics have legitimate concerns. Those concerns should be taken into account (1) by insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) by invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) by deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.

(VIs Larry Solum at Legal Theory Blog, where it is "Download of the week").


Josh Blackman & Seth Barrett Tillman on the Maryland Emoluments Decision
Michael Ramsey

At  Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman (guest blogging):  Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?  From the introduction:

Until recently, no court had opined on the validity of Washington's practices with respect to the Emoluments Clauses. The Honorable George B. Daniels of the U.S. District Court for the Southern District of New York concluded that the case was not justiciable. Therefore, in December 2017, he granted the government's motion to dismiss. (That case is currently on appeal to the Second Circuit.) However, on July 25, 2018, the Honorable Peter J. Messitte of the U.S. District Court for the District of Maryland denied the government's motion to dismiss. And in doing so, Judge Messitte devoted nearly five pages to the arguments we raised in our briefs.

Though he rejected each and every one of our positions, we are grateful to the Court for shining a light on these important historical issues. Judge Messitte put on notice the Fourth Circuit, and all other courts, that any ruling for the Plaintiffs ought to address our arguments. Stated differently, if President Washington was correct, then President Trump should prevail. In order for the Plaintiffs to prevail, the courts must demonstrate that President Washington was wrong. In July 2016, Professor Will Baude wrote that Tillman has "singlehandedly shifted the burden of proof." In any event, in ordinary civil litigation, the burden of persuasion rests with Plaintiffs. Because Judge Messitte's opinion is marred by plain historical errors, the Plaintiffs have not carried that burden.

And from the core of the discussion:

Finally, Judge Messitte reasoned in the alternative. Even if the "single" land transaction supported the Defendant, that evidence must be weighed against other "historical evidence, textual support, and executive branch precedent to the contrary." Slip op. at 46. Judge Messitte is correct that he must weigh the competing streams of authority. Alas, his scale is one-sided: he considers the Washington land transaction as the only evidence in support of the Defendant. (This evidence was put forward by the DOJ.) But there was other evidence—lots of it.

The Blackman-Tillman brief dedicated an entire free-standing brief section describing evidence of diplomatic gifts given to George Washington and to his successors, i.e., other Presidents during the Federalist Era and Early Republic. Washington and his successors received, accepted, and kept these diplomatic gifts—all absent congressional consent. The public knew about these gifts, and they were discussed in contemporaneous diplomatic communications. Until this litigation, no historian or contemporaneous or subsequent legal scholar (as far as we know) ever suggested that Washington or his successors violated the Foreign Emoluments Clause. Nor can one find a trace of protest in congressional debate or in the press. Why not? We posit that there was no protest, because presidents were not understood to be bound by the Foreign Emoluments Clause.

Moreover, the Court concluded that de minimis gifts and transactions were beyond the scope of the Constitution's "emoluments"-language. We do not take issue with that conclusion here. (However, Professor Andy Grewal noted that "no dictionary has ever defined an emolument as 'anything of value but with some de minimis exceptions where potential of corruption does not exist.'") Rather, here, we point out that Plaintiffs and their many supporting amici put nothing in the record from which Judge Messitte might reasonably conclude that the value of these diplomatic gifts had de minimis value. To the contrary, we have long anticipated this sort of argument. In our brief, we describe the "framed full-length portrait of King Louis XVI" as a "valuable gift," and the portrait was mounted inside a "valuable ornate frame." These were not de minimis gifts. We are (again) ready to put forward experts to support our position. Judge Messitte was perfectly correct to engage in balancing or weighing the competing streams of authority. However, he discounted Washington's 1793 land transaction based on plain error. Furthermore, he failed to consider the many diplomatic gifts given to President Washington and his successors in the Early Republic. The Court only considered the evidence on one side of the scales: this approach cannot be described as balancing in any meaningful sense.


Linda Greenhouse on Clarence Thomas
Michael Ramsey

In the New York Times, Linda Greenhouse: Is Clarence Thomas the Supreme Court's Future?  From the introduction:

... I want to focus on Justice Clarence Thomas and specifically on the record he compiled during the past term. There is something almost discordant about including Justice Thomas in a discussion of “the future” because his highly personal and eccentric jurisprudence would take the court and the Constitution hurtling backward into the past.

That’s no great revelation. He has long insisted that the only legitimate way to interpret a constitutional provision is to give it the “public meaning” it supposedly had at the time it was written. So in 2011, for example, he dissented from a majority opinion written by Justice Antonin Scalia that struck down, on First Amendment grounds, a California law that made it a crime to sell a “violent” video game to a minor without parental permission. “The founding generation,” Justice Thomas wrote in dissent, “would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minor’s parents.”

While Justice Thomas’s unyielding view of originalism has been evident since he took his seat on the court 27 years ago, his output in the most recent term was little short of astonishing. In a term that produced only 59 signed opinions, I counted six important and long-enduring precedents that Justice Thomas would have wiped off the books as inconsistent with the original understanding.

(She says that like it's a bad thing.)  And from the conclusion: 

A month ago, ThinkProgress published an essay by Ian Millhiser with the title “Clarence Thomas Is the Most Important Legal Thinker in America.” [Ed.: Sorry, missed that one.]  I did a double take. How could the estimable Mr. Millhiser sign his name to such an exaggerated claim? But his argument was not that Justice Thomas, who recently turned 70, is winning victories today, but that he is paving the way for victories down the road — and perhaps not all that far down the road. Observing that 20 percent of Trump-appointed appeals court judges are Justice Thomas’s former law clerks, Mr. Millhiser wrote, “Thomas lost the war for the present, but he is the future of legal conservatism.”


Amicus Brief in the CFPB Removal Power Litigation
Michael Ramsey

Ilan Wurman (Arizona State) recently filed an amici curiae brief (now posted on SSRN) on behalf of separation of powers scholars in the 5th Circuit CFPB removal power litigation, Consumer Financial Protection Board v. All American Check Cashing, Inc.  I signed the brief, along with Steven G. Calabresi (Northwestern), Michael McConnell (Stanford), Saikrishna Prakash, (Virginia), Jeremy Rabkin (George Mason/Scalia) and Michael Rappaport (USD).  Here is the introduction:

Amici separation of powers scholars seek to alert this Court to important points of constitutional text, structure, and history that support appellants’ constitutional arguments respecting the Consumer Financial Protection Bureau. Amici in particular respond to points raised by amici separation of powers scholars in PHH Corp., et al. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en banc), and on which the en banc court in that case relied. The exact same issues are present here, and amici believe this Court should reach the opposite conclusion. 

As discussed below, insulating a principal officer serving as the single director of an administrative agency from the President’s removal power violates the Constitution’s provisions for executive power. Although the amici separation of powers scholars and the D.C. Circuit in PHH Corp. relied on the revisionist argument of recent decades that there is a difference between “Article I” agencies created pursuant to Congress’s Article I, § 8 powers and “Article II” agencies that assist the President in exercising inherent executive powers, there is simply no evidence that the Founding generation ever conceived of such a distinction. 

In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created a different sort of exception, one grounded in the structure of the Federal Trade Commission (FTC). As the Court explained, the FTC was “nonpartisan,” composed of a multimember, bipartisan commission that was to deploy administrative expertise in a particular field. To consider a principal officer who alone directs an entire department of government as “nonpartisan” would be to defy all human political experience. The exception of Humphrey’s Executor should not extend to this case. 


Kennedy, Kavanaugh, and Recess Appointments
Mike Rappaport

The likely replacement of Justice Anthony Kennedy is Brett Kavanaugh. Commentators have focused on what changes to the Court’s decisions this new appointment will make. While most Supreme Court observers focus on politically charged cases, such as cases involving abortion or affirmative action, I am very much concerned with methodology and with more mundane separation of powers cases. This appointment is likely to have an important effect in this area.

Let me illustrate by focusing on what I regard as one of the worst decisions by the Supreme Court in recent years – NLRB v. Noel Canning.

There were three issues involved in Canning but for brevity’s sake I will just discuss one. The Constitution provides that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” One question about this clause is whether it allows the President to make a recess appointment (that is, a temporary appointment without the advice and consent of the Senate) if the office became vacant, not during the legislative recess, but during the legislative session. In my view, which I defended in a long article on this many years ago, the original meaning clearly indicates that the vacancy must occur during the legislative recess. In fact, the text seems pretty darn clear on this by itself.

Justice Scalia and many other originalists adopted this view. But it only secured four votes on the Supreme Court.   By contrast, the majority opinion written by Justice Breyer embraced a different view. Breyer wrote an opinion that claimed that the text was not clear and therefore the uncertainty should be resolved based on government practice.

In my view, Justice Breyer’s decision was clearly mistaken. The text’s original meaning was not unclear. The originalist evidence was clear. My suspicion that Breyer merely found the text uncertain so that he could ignore it was reinforced by Breyer’s well known opposition to originalism and his view that the Court should attempt to make the Constitution work better.

Here, Breyer’s position reminds me of one the judges from the famous Speluncian Explorers case written by Lon Fuller.  This judge (Judge Foster) was criticized by one of his colleagues on the bench as follows:

My brother Foster's penchant for finding holes in statutes reminds one of the story told by an ancient author about the man who ate a pair of shoes. Asked how he liked them, he replied that the part he liked best was the holes. That is the way my brother feels about statutes; the more holes they have in them the better he likes them. In short, he doesn't like statutes.

And so with Justice Breyer.

What does this have to do with Justice Kennedy and his retirement? Without Justice Kennedy’s vote, Justice Breyer’s opinion would have been a dissent for the four liberal nonoriginalist justices, not the majority opinion. Replacing Kennedy with Kavanaugh presumably would have changed the result in that case. Why did Kennedy choose to vote with Breyer rather than Scalia? I really don’t know. I can only speculate that much of Kennedy’s jurisprudence has involved taking constitutional text and explicating it not based on its original meaning, but based on what he believes these provisions really mean and what history has taught us that they mean. If that is your approach, then you may feel uncomfortable holding an executive branch practice unconstitutional based on the original meaning.

In the end, the replacement of Kennedy with Kavanaugh is not just important for politically important cases like Roe v. Wade. It is also important for more mundane cases where the jurisprudence of originalism and formalism is at stake.

Gail Heriot on Hate Crimes and the Thirteenth Amendment
Michael Ramsey

At Volokh Conspiracy, Gail Heriot (USD law/U.S. Commission on Civil Rights): Does the 13th Amendment's Ban on Slavery and Involuntary Servitude Give Congress the Power to Ban Hate Crimes?  Here is the introduction:

A few days ago, Peter Kirsanow and I submitted an Amicus Curiae Brief supporting the Defendant's Petition for Certiorari in Metcalf v. United States. In it, we argue that Section 249(a)(1) of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 (the "HCPA") is unconstitutional.

For Congress's authority to pass Section 249(a)(1), it purported to rely on the Thirteenth Amendment, which bans slavery and involuntary servitude. Yet it didn't claim that in passing that section its aim was to prevent slavery from returning (and if it had made such claim nobody would have believed it). It's clear that Congress wanted to eliminate hate crimes for the sake of eliminating hate crimes. That is actually a perfectly understandable goal, but it isn't a goal that can be justified by the Thirteenth Amendment.

The amicus brief is posted on SSRN here.  Here is the abstract:

This amicus curiae brief argues that the section of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 that relies on the Thirteenth Amendment for its authorization is unconstitutional. It urges the Supreme Court to grant the Petition for Certiorari. 

Section 1 of the Thirteenth Amendment bans slavery and involuntary servitude--period. Section 2 authorizes Congress to effectuate that ban. Undoubtedly, Section 2 gives Congress broad discretion in its efforts to ban slavery and to prevent its return. But it was not intended as a broad grant of power to remedy all social ills thought to be traceable to, or aggravated by, slavery. Since Congress does not even purport to be motivated by a desire to prevent slavery's return, Section 249(a)(1) is unconstitutional.

Indeed, even if Congress had purported to be motivated by a desire to prevent slavery's return, Section 249(a)(1) is neither congruent and proportional nor rationally related to that aim.

Note that the conduct Petitioner was found to engage in was reprehensible. Amici note only that advocates for the Constitution’s framework of limited government do not always get to choose their allies.

The argument made in this brief applies only to Section 249(a)(1) of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The Act also contains a section (Section 249(a)(2)) that is premised on Congress's power under the Commerce Clause. That section is unaffected by this argument.


William Baude & Eugene Volokh: Compelled Subsidies and the First Amendment
Michael Ramsey

William Baude (University of Chicago - Law School) and Eugene Volokh (University of California, Los Angeles (UCLA) - School of Law) have posted Compelled Subsidies and the First Amendment (132 Harvard Law Review (forthcoming 2018)) on SSRN.  Here is the abstract:

Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion. Nobody likes having their money taken, and knowing that it will be spent on causes one opposes seems to add insult to injury. But when is it unconstitutional?

For forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one’s First Amendment rights. This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy. 

In Janus v. AFSCME, a majority of the Court went further, and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining. Such public-sector collective bargaining, the majority held, is itself inherently political. And the government interests in mandating such payments don’t suffice to justify such requirements. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these two points. 

But we think the majority—and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar —erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of—likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong. 

In Part III, we turn from evaluating the decision to anticipating its consequences. We doubt Janus will have significant effects on government speech rights (Part III.A), but it will likely bar the funding of other forms of private speech. Janus will likely extend to a prohibition on state bar dues, at least so long as the bar is seen as sufficiently removed from other government agencies (Part III.B). It might also include constraints on public university student governments’ use of student activity fees, though universities can create accounting workarounds that will practically allow such student activity funding to continue (Part III.C).

Finally, and perhaps most consequentially, Janus may lead to massive liability for unions that have collected the agency fees that are now viewed as unconstitutional. (Part III.D). Though the fees were seen as valid when collected, the Supreme Court’s precedents say that constitutional reversals in civil cases are generally retroactive, so everyone in Janus’s shoes can get agency fee refunds just as Janus himself could (at least so long as the statute of limitations has not lapsed). Moreover, private organizations such as unions are generally not entitled to qualified immunity or similar defenses. While the unions do have some possible arguments to mitigate the damages or try to claim a special form of good faith, those defenses are speculative, and cannot be counted on.

William Baude has more at Volokh Conspiracy: What Janus Got Right -- and Wrong.

RELATED:  Martin Lederman comments on my prior post on Janus:

On the Buckley argument, you write:  "If voluntary contributions are akin to voluntary speech, then compelled contributions are akin to compelled speech.  I'm surprised that the Janus majority did not make more of this analogy.

Of course, the Abood majority did make that move.  The reason the Court has abandoned it, I suspect, is that the analogy doesn't withstand close scrutiny and has been subjected to withering critique.  See, e.g., Greg Klass at 1117-23 and Baude/Volokh at 18-20.  A quick way of putting the point:  
The Court has held that contribution limits trigger at least some 1A scrutiny because a campaign contributor "speaks" "symbolically" to the candidate by giving her money.  But of course there's only such "symbolic expression" where the contributor intends her contribution to send a "message" of support to the candidate.  Obviously, when the state sends the objecting feepayer's funds to the union, it does not convey any intended expression of support by the feepayer, symbolic or otherwise.  Hence, no analogy, even if Buckley's scrutiny is defensible.

Seth Barrett Tillman: Merryman Redux
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Merryman Redux: A Response to Professor John Yoo (22(2) Chapman L. Rev., Spring 2019, forthcoming) on SSRN.  Here is the abstract:

In a recent issue of Chapman Law Review, Professor John Yoo wrote: “While FDR did not join Lincoln’s blatant defiance in declining to obey a judicial order, [Roosevelt’s] administration regularly proposed laws that ran counter to Supreme Court precedent . . . .” My focus in this short responsive essay is on Yoo’s claim regarding Lincoln. 

Professor Yoo’s claim is odd — isn’t it? He tells us that Lincoln passively “declin[ed] to obey a judicial order,” but then he recharacterizes Lincoln’s passivity as “blatant defiance.” Odd. He cites to no particular case, and he cites to no specific judicial order in any case. Very odd. We are all just supposed to know that the case was Ex parte Merryman, a Civil War case, and the purported judicial order was issued by that old curmudgeon: Chief Justice Roger Brooke Taney. In a prior publication, in 2015, Yoo wrote that Lincoln had “ignored Taney’s order releasing Merryman.” “Ignored” — no mention of defiance here. On another occasion, in 2009, Yoo characterized Lincoln’s response to Merryman as “outright presidential defiance.” But here the passive language of ignoring and declining to obey is absent. Now, in 2018, Yoo says it is both. We are down the rabbit hole. 

So which is it? 

[A] Lincoln passively declined to obey a judicial order; 
[B] Lincoln actively defied the Chief Justice; or, 
[C] Both. 

Which is it? 

The correct answer is....

RELATED: At the New Reform Club, Seth Barrett Tillman, What is the Privilege of the Writ of Habeas Corpus?


Robert Natelson: “Advice” in the Constitution’s Advice and Consent Clause
Michael Ramsey

Recently published in the Federalist Society Review, Robert Natelson: “Advice” in the Constitution’s Advice and Consent Clause: New Evidence from Contemporaneous Sources (19 Fed. Soc. Rev. 96 (2018)).  From the introduction:

Legal commentators have spilled a fair amount of ink over the meaning of “Advice and Consent.” Some, although far from all, argue that the word “Advice” refers to senatorial input before the president presents treaties or nominations to the Senate for deliberation and approval. In a 1979 article on the treaty power, Professor Arthur Bestor contended:

On the one hand, the Senate; on the other, the President—treatymaking was to be a cooperative venture from the
beginning to the end of the entire process. This, the evidence shows, was the true intent of the framers.

Other commentators have agreed that the Senate has an initiating role in the treaty and nomination processes, although most claim for the Senate a role more modest than that Professor Bestor claimed for it.

This essay examines whether the constitutional word “Advice” contemplates senatorial participation before the president presents a treaty or makes a nomination and concludes that it does not.

To be clear (because Professor Natelson quotes a somewhat wishy-washy comment by me), I entirely agree with him.  The Constitution's original meaning contemplated Senate input regarding the President's decisions but it did not require this input in advance of the President advancing a specific proposal (in the form of a nomination or a signed treaty).  My discussion is at pp. 138-141 of The Constitution's Text in Foreign Affairs; it relies on a somewhat different analysis but is complementary to Professor Natelson's; it specifically rejects Professor Bestor's view.

As to treaties, my central textual claim is that the Constitution only requires "advice" (and, in the same phrase, consent) before the President "make[s]" a treaty.  Treaties are not fully "made" (that is, completed and binding under international law) until they are ratified.  So as long as the Senate's advice and consent comes before the President ratifies the treaty, the constitutional mandate is satisfied.  It may be (or may not be) that the Framers expected Presidents to seek advice before negotiating a treaty as a way to gauge the Senate's likelihood of consent, but they did not write a rule that the President had to do so.  Professor Natelson's assessment of the original meaning of "advice" confirms this view.


More on Originalism and Janus v. AFSCME
Michael Ramsey

At Balkinization, Marty Lederman: Exacerbating the real error in Abood: Is there any justification, "originalist" or otherwise, for the Court's holding in Janus that deducting agency fees abridges the freedom of speech?  On the Court's thin originalist justification for its rule: 

Justice Alito [in the majority opinion] then simply asserts, as if night followed day, that "[c]ompelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns [as compelled speech]" (emphasis added, and citing three modern cases, including Abood, that are no more explanatory than Janus).  Why?  Here's the entirety of his reasoning:

As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted).

That's it.  A single quotation from a Virginia statute drafted by Thomas Jefferson and enacted by the Virginia legislature five years before the First Amendment was ratified.  Similarly, a few pages later Alito again cites the same sentence from the 1786 Virginia bill as alleged support for the Court's insistence that overruling Abood and holding that the agency fee is unconstitutional is consistent with "the original understanding of the First Amendment":

[P]rominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed.  As noted, Jefferson denounced compelled support for such beliefs as "sinful and tyrannical," and others expressed similar views.

Who are these "others" in the founding generation who allegedly expressed "similar views"?  Alito cites only two:  Noah Webster and Oliver Ellsworth (both of whom were invoked in the amicus brief of certain California teachers).  But neither of those men suggested that compelled payments are unconstitutional, let alone violations of the Free Speech Clause.  Ellsworth wrote in 1787 that laws requiring people to “make a public declaration of … belief … in order to qualify themselves for public employments” were “useless, tyrannical, and peculiarly unfit for the people of this country”--but of course Illinois does not require its employees to make any declaration of belief, public or otherwise.  Similarly, in 1790 Webster condemned “test laws, oaths of … abjuration, and partial exclusions from civil offices” as “instruments of slavery” and “badge[s] of tyranny.”  He didn't write anything at all about compelled payments.

And so it turns out that the only support for the Court's central assumption--that compelling a person to subsidize the speech of other private speakers raises First Amendment concerns "similar" to compelled speech itself--is a single statement in a Jefferson-penned Virginia statute from 1786.

After further discussion of the Jefferson quote, he issues this challenge:

I'm genuinely curious:  Does anyone--especially, but not limited to, originalists--think that the "sinful and tyrannical" quotation does the trick, or that there's any other basis, neglected by the Court, for concluding that the Free Speech Clause prohibits the state from compelling its nonunion employees to make payments to third parties for expression that the employees disapprove?

I generally agree with Professor Lederman -- I've expressed doubts several times about the originalist foundations of the Janus conclusion (thanks to Professor Lederman for quoting one of these posts).  And I don't think the Jefferson quote is sufficient

Here are my thoughts in limited defense of the Court.

(a) Abood, the case Janus overruled, was (jurisprudentially speaking) an abomination.  It declared a principle (that compelled subsidy of private speech violated the First Amendment) without any substantial basis for doing so, and then it applied a watered-down and nebulous version of that principle with the result that most -- but not all! -- mandatory dues actually were constitutional.  But it required, in pursuit of that very limited rule, that courts to engage in intricate line-by-line review of union expenditures to determine which ones did and did not meet the Abood standard.  For full display of the multidimensional awfulness of this project, see Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991), in which members of the Court assessed a detailed list of petty expenditures and disagreed among themselves as to which ones required an Abood exclusion.  (Yes, I still have a personal grudge from working on that case).  I would not be surprised if Lehnert was the case that set Justice Scalia irrevocably on the course to slay Abood with whatever weapon available.  Unsurprisingly, the majority in Janus cited Lehnert as an illustration of Abood's unworkability.

(b) But, as Professor Lederman suggests, why not just overrule Abood and say there is no constitutional objection to compelled dues?  I think that would have been hard for the Court to justify in light of the campaign finance cases.  The Court has said repeatedly that contributing money to campaigns is speech protected by the First Amendment.  But if voluntary contributions are akin to voluntary speech, then compelled contributions are akin to compelled speech.  I'm surprised that the Janus majority did not make more of this analogy.  But I suspect it was on their mind, at least as an unstated assumption.

(c) The problem here, from an originalist perspective, is that the equation of campaign contributions and speech is also (in my view) poorly grounded in originalist evidence.  But it is firmly grounded in precedent.  The Court may well have thought that saying compelled contributions are not speech would destabilize the rule that voluntary contributions are speech.  And it (or at least the Justices in the Janus majority) are very committed to that view.

I think this illustrates the difficulty of doing a pure originalist adjudication in an area with so much precedent.  I'd describe the majority as taking the simplest path to getting rid of what it saw as the embarrassing and unmanageable Abood standard without undermining neighboring areas of doctrine.

That may not be satisfactory from an originalist standpoint -- I think it's not, and I would have preferred if Justice Alito left out the originalist evidence altogether and relied on an analogy to other precedents.  But I think the best way to see Janus is as an effort to (as Justice Scalia sometimes put it) "clean up the law."


Aditya Bamzai: Taft, Frankfurter, and the First Presidential For-Cause Removal
Michael Ramsey

Aditya Bamzai (University of Virginia - School of Law) has posted Taft, Frankfurter, and the First Presidential For-Cause Removal (52 University of Richmond Law Review 691 (2018)) on SSRN.  Here is the abstract: 

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them—William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter.

Taft’s firing of Sharretts and Chamberlain was the first presidential for-cause removal. To this day, it remains the only time in the history of the nation that the President has expressly removed for cause an executive branch “officer of the United States” whose tenure is protected by statute after providing notice to the officer, holding a hearing, and finding that the statutory predicates for removal have been met. Taft’s action involved decisions by two individuals—Taft himself and Frankfurter—who would go on to become Justices of the United States Supreme Court and to author two of the most consequential opinions on the President's authority to remove subordinates, Myers v. United States and Wiener v. United States. It involved the construction and application of statutory language—“inefficiency, neglect of duty, or malfeasance in office”—that Congress still uses to mark some kind of “independence” from presidential control on behalf of an administrative agency. Echoes of the issues that Taft and Frankfurter confronted in 1913 may be heard in Myers and Wiener, in Justice Sutherland’s opinion for the Court in Humphrey’s Executor v. United States, and in recent controversies over the scope of the President’s power to remove subordinate officers within the executive branch. 

Despite all of the foregoing, the episode has escaped scholarly attention and been the subject of no relevant legal discussion. No account of President Taft’s removal of the two Board members appears in the various treatments of the President’s removal power, or in the large literatures devoted to Taft and Frankfurter, two towering figures in American legal history. Indeed, it is widely, but mistakenly, assumed that no President has ever removed an officer for cause and that (in the words of the dissenting opinion in Free Enterprise Fund v. Public Co. Accounting Oversight Board) “it appears that no President has ever actually sought to exercise [the removal] power by testing the scope of a ‘for cause’ provision.” As a corrective, this article tells the story of Taft’s for-cause removal of the two general appraisers on his last day in office, following a process started in the midst of his 1912 reelection battle with future President Woodrow Wilson and former President Theodore Roosevelt. It then explores the episode’s implications for present-day understandings of the development of the American administrative state and the doctrine of the separation of powers.


More on Originalism and Birthright Citizenship
Michael Ramsey

John Eastman (Chapman) -- one of the best scholars taking the limited view of birthright citizenship under the Fourteenth Amendment -- frames the issue well (for his side) in this post:

... The language of the 14th Amendment’s citizenship clause contains two components. First, “all persons born . . . in the United States”; “and” second, “subject to its jurisdiction,” are to be automatically citizens. The phrase, “subject to the jurisdiction,” standing alone, can have two meanings: A full, allegiance-owing jurisdiction, and a partial, territorial jurisdiction. Anyone present in the United States (save for diplomats) is subject to her partial, territorial jurisdiction. Think of a British tourist temporarily visiting the United States on vacation, who is subject to the law that we drive on the right side of the road, not the left.

Even those who are in the country illegally are subject to our laws while here. Subject to the full jurisdiction, on the other hand, involves some kind of allegiance, such as arises when someone has become, or is in the process of becoming, part of the body politic. The issue, then, is which of these two meanings was intended by the drafters and ratifiers of the 14th Amendment.

On that, we do not need to speculate, because the question was posed directly to the leading sponsors of the 14th Amendment....

(Thanks to Mark Pulliam for the pointer.)

I think, though, that Professor Eastman's position leads to the conclusion that children of lawful resident aliens do not have birthright citizenship under the provision's original meaning (though he denies it).  I agree that there are two types of jurisdiction, based respectively on presence in the territory and on citizenship.  But jurisdiction based on citizenship did not apply to lawful resident aliens, even if they had the intent eventually to become citizens.  U.S. jurisdiction over them arose from presence in U.S. territory, as it did for temporary visitors and unlawful entrants.

This is important because it's pretty clear from the debates that the Amendment's framers thought it gave birthright citizenship to the children of lawful resident aliens.  (See Garrett Epps' account of the debates).  And it would be very surprising if it did not, because children of lawful resident aliens had been automatic U.S. citizens under the common law as it stood before the Amendment.  Thus I think it's also pretty clear (notwithstanding some lack of clarity in some of the debates) that the Amendment refers to territorial jurisdiction, not just to citizenship-based jurisdiction.

RELATED:  At Language Log, Neal Goldfarb has an intricate response to Michael Anton's altered quotation of Jacob Howard on the scope of the Amendment: Citizenship and syntax.  From the introduction:

One of the interpretive moves for which Anton [in this essay] has been criticized is his handling of a statement made on the floor of the Senate while the proposed text of the 14th Amendment was being debated. And that dispute turns on the resolution of a syntactic ambiguity.

Here's his description of the issue:

Howard said that the grant of citizenship [in the Fourteenth Amendment] ... did not extent to “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers” (link).

When Anton quoted Howard, however, he altered the text. Specifically, he inserted the word or in brackets:

Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” [bracketing by Anton; boldfacing added]

The post goes on to argue at length (and in my view persuasively) why that's wrong.

But more broadly, this controversy illustrates one of several reasons why I think drafting/ratification debates are not the best originalist evidence.  During the drafting and ratification debates, a lot of people said a lot of things, some of them imprecise, ambiguous, poorly reasoned, even incoherent.  One arguably imprecise or ambiguous statement, even by so prominent a person as Jacob Howard, shouldn't be the centerpiece of the argument.


A Commentary on Holmes’s Lochner Dissent: Part II
Mike Rappaport

In the first part of this post, I started my commentary on Holmes’s Lochner dissent. Here I continue it. As before, Holmes's dissent is in italics, my commentary is in normal print. 

The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. [Holmes here lists various other decisions.] Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.

Once again, Holmes is engaged in unsupported assertion. Some constitutions may be intended to embody a particular economic theory – especially if there was a dominant one at the time of the Framing. One must show that the constitution was not intended to do that. Otherwise, Holmes is just telling us what his views about the constitution are, and he has already suggested that the judges views on such matters are not relevant.

[A constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

This is another famous line from Holmes dissent. I agree with Holmes that a good constitution is made for people of fundamentally differing views. In a pluralist country, we should expect that people will differ on many matters and a good constitution will take that into account. But from this point of agreement, I disagree with the implications that Holmes draws. First, that a good constitution is made for people of differing views does not imply that the Supreme Court should adopt a judicial restraint view, as articulated by Holmes below. Many good constitutional provisions allow for pluralism, such as federalism, separation of powers and many individual rights provisions, and enforcing them would promote a good constitutional order for a pluralist country. Judicial restraint may undermine that good constitution. Second, Holmes has not shown that the U.S. Constitution is a constitution of this type. I do agree that the U.S. Constitution is made for people of fundamentally differing views, but not in the way that Holmes thinks.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

The key point here is Holmes's claim that “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Once again, this judicial restraint claim is unsupported. There are very good reasons to believe that the people who enacted the 14th Amendment would not have allowed states to pass whatever laws they wanted unless no “rational and fair man necessarily would admit that the statute would infringe fundamental principle as understood by the traditions of our people.” After all, the 14th Amendment was passed in part to attack the black codes. More generally, in some ways the Fourteenth Amendment served to protect existing traditions. But in other ways, it sought to establish new principles in the law. And in yet others it appeared to select among the conflicting traditions of the country prior to the Civil War.

Holmes just ignores all of this, so that he can assert his unsupported claim about the Constitution.

Kevin Toh: Some Reflections on Musical and Legal Interpretation
Michael Ramsey

Kevin Toh (University College London) has posted Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation (forthcoming, Lisa Crawford, Patrick Emerton, & Dale Smith (eds.), Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Oxford: Hart Publishing)) on SSRN.  Here is the abstract:

This paper is an attempt to exploit a set of analogies between music and law. Both the originalist movement in law and the so-called period instrument movement in classical music gathered momentum in earnest in the late 1970’s and the early 1980’s. And both were reactions to earlier traditions of interpretation, in law and music respectively, the traditions that the partisans of the new movements deemed insufficiently faithful to the objects of interpretation. “Authenticity” is a term that musicians and critics often use to talk about the ideal of fidelity in musical performance. Importantly, what kinds of performances count as authentic depends on what properties are constitutive of musical works. The legal analogue of this relation, I believe, should help us to think carefully about originalism, which involves a particular way of conceiving the ideal of authenticity or fidelity in legal interpretation.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended")


A Commentary on Holmes’s Lochner Dissent: Part I
Mike Rappaport

Oliver Wendell Holmes’s Lochner dissent is perhaps the most famous dissent in all of constitutional law. Some people regard it as great, either because it criticizes the majority decision in Lochner or because it defends a certain restraint-oriented jurisprudence. Others regard is as awful, sometimes for the same reasons. It is only two paragraphs in substance, and it is chock full of important claims. I thought I would discuss its passages in a couple of blog posts.

Lochner, of course, was the 1905 Supreme Court case that held unconstitutional a state law that set the maximum hours for bakers. The majority saw the law as a restriction on the liberty of workers and employers to set the workers’ hours. The dominant view of the today’s progressives is that it involved a result oriented court’s attempt to block progressive legislation. Some scholarship argues that the law was actually rent seeking legislation that sought protection for union workers at the expense of nonunion workers. Others continue to see it as public-interested legislation.

Holmes’s dissent is short. That provides some of its rhetorical power. But rhetoric differs from substance. Many people take these rhetorical claims and run with them. Thus, in these two posts, much of my criticism of Holmes is based on the unsupported nature of his claims. It is true that one should not expect such support in a two paragraph dissent. But one should not write a two paragraph dissent if one’s claims require significant support. Nor should such a dissent become one of the most prized ones in constitutional law.

(Holmes’s dissent is in italics.  My commentary is in normal print.) 

This case is decided upon an economic theory which a large part of the country does not entertain.

To my mind, this claim is essentially irrelevant from an originalist perspective. What the current country thinks does not decide the original meaning.

If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.

I agree with this claim. Literally, the judges agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is not clear that many of today’s non-originalists agree with Holmes’s claim. In my view, many non-originalists seem to believe that their disagreement with the arguments for a law is very much relevant to the enterprise of judging the law’s constitutionality.

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

Here, Holmes relies upon precedent. And he is right that the Court had held constitutional many state laws that interfered with liberty. Still, I have two concerns about his argument. First, while I believe that precedent has a role to play in constitutional law, that does not mean it always trumps the original meaning. So precedent is merely part of the story. Second, and more importantly, Holmes has not shown that these precedents are inconsistent with the majority result in Lochner. While the other dissent in Lochner by Justice Harlan attempted to argue that the majority was mistaken under existing doctrine, Holmes did not. It is quite problematic that he here relies upon precedent, without taking the doctrines of those precedents seriously. In fact, there is a reasonable argument that the Lochner majority’s opinion was consistent with precedent.

The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

This is one of the most famous lines in the dissent. But it is largely beside the point. The Lochner majority accepted the constitutionality of many laws that would have been condemned by Herbert Spencer’s Social Statics. While one might claim that Holmes is merely exaggerating for effect, that still leaves his argument problematic. The question is what the 14th Amendment does enact.  And Holmes has done absolutely nothing – except make sheer assertions – to establish its meaning.

In my next post, I discuss the second half of Holmes’s dissent.

District Court Finds Hotel Stays Are Emoluments, Principally Based on Originalist Analysis
Michael Ramsey

Yesterday the District Court in the Maryland emoluments litigation (District of Columbia and Maryland v. Trump) denied the President's motion to dismiss, ruling that state and foreign government officials paying for stays at the Trump Hotel are "emoluments" barred by the Constitution.  The analysis is mostly originalist on the key point -- the eighteenth-century definition of emolument -- relying heavily on John Mikhail's article The Definition of “Emolument” in English Language and Legal Dictionaries, 1523–1806, 1–2 (June 30, 2017), https://ssrn.com/abstract=2995693).  Here is the core of the argument:

The clear weight of the evidence shows that an “emolument” was commonly understood by the founding generation to encompass any “profit,” “gain,” or “advantage.” Though the Court agrees that mere counting of dictionaries may not be dispositive, it nonetheless remains highly remarkable that “every English dictionary definition of ‘emolument’ from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief.” Mikhail, The Definition of “Emolument,” supra, at 1-2.25 Moreover, “92% of these dictionaries define ‘emolument’ exclusively in these terms, with no reference to ‘office’ or ‘employment.’” Id. No less important is the fact that even the few sources that do reference an office or employment as part of their definition of “emolument,” include as well the definitions of “gain, or advantage,” a point the President fails to address in his pleadings. Id. at 8 n.26 (noting that Barclay’s full definition of “emolument” is “profit arising from profit or employ; gain or advantage.” (emphasis added)). Further, the President relies heavily on two pre-Constitutional Convention sources, Barclay (1774) and Trusler (1776), despite the fact that, as Professor Mikhail points out, there is “little to no evidence” that either of these two dictionaries “were owned, possessed, or used by the founders.” Mikhail, The Definition of “Emolument,” supra, at 13 (noting that “neither of these dictionaries is mentioned in the more than 178,000 searchable ocuments in the Founders Online database, which makes publicly available the papers of the six most prominent founders.”). On the other hand, in the four dictionaries which have been deemed by Justice Antonin Scalia and Bryan A. Garner as “‘the most useful and authoritative’ English dictionaries from 1750-1800,” “emolument,” consistent with Plaintiffs’ view, is  variously defined as “profit,” “gain,” or “advantage.” Id. at 18 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 419 (2012)).

In addition to its broad meaning in a far greater number of founding-era dictionaries, the term “emolument” was also used in a broad sense in eighteenth century legal and economic treatises. As Professor Mikhail points out, in his Commentaries on the Laws of England, Blackstone uses the word “emolument” on at least sixteen occasions, the majority of those not tied to the performance of official duties or public office. See Mikhail, “Emolument” in Blackstone’s Commentaries, supra, (listing examples). Blackstone, for example, refers to the benefits of third-party beneficiaries as “the emolument of third persons,” discusses the “emoluments arising from inheritance,” and references “pecuniary emoluments” in the context of bankruptcy. 2 William Blackstone, Commentaries on the Laws of England *30 (“The thing given in lieu of tithes must be beneficial to the parson, and not for the emolument of third persons only”) (emphasis added); (“The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy.”) (emphasis added); *472 (“[W]hereas the law of bankrupts, taking into  consideration the sudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon condition they surrender up their whole estate to be divided among their creditors[.]”) (emphasis added).

Similarly, Adam Smith in his The Wealth of Nations—a treatise which the Framers were unquestionably well aware of—used the term “emolument” twice to refer to instances involving private market transactions. See 1 Adam Smith, Inquiry into the Nature and Causes of the Wealth of Nations 92 (9th ed. 1799) (“The monopolists, by keeping the market constantly under-stocked . . . sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.”) (emphasis added); 2 Smith, id., at 234 (“[The bank] makes a profit likewise by selling bank money at five per cent agio, and buying it in at four. These different emoluments amount to a good deal more than what is necessary for paying the salaries of officers, and defraying the expense of management.”) (emphasis added).

The court also rejected Professor Seth Barrett Tillman's argument (as amicus curiae) that the President is not covered by the emoluments clause, relying on (among other authorities) Professor Saikrishna Prakash's article Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y 143, 148-51 (2009).

In all, I count about 29 pages of originalist analysis.  The principal nonoriginalist evidence the court examines are executive branch opinions and practice, which the court regards as secondary at best.

(Via David Post at Volokh Conspiracy, who finds the opinion "awfully persuasive").


Ninth Circuit Finds Right to Carry Arms in Public, Principally Based on Originalist Analysis
Michael Ramsey

In Young v. Hawaii, decided yesterday, a panel of the Ninth Circuit (O'Scannlain, joined by Ikuta; Clifton dissenting) found a constitutional right to carry firearms in public.  As one would anticipate from Judge O'Scannlain, the analysis is heavily textualist and originalist.  Two highlights:

The court relies in part on the existence of textually separate rights to "keep" and to "bear" arms.

Indeed, the fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation. A right to “keep” arms, on its own, necessarily implies a right to carry those arms to some extent. For instance, in order to “keep” arms, one would have to carry them home from the place of purchase and occasionally move them from storage place to storage place. Cf. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (holding that the right to possess firearms “implies a corresponding right to acquire and maintain proficiency in their use”). The addition of a separate right to “bear” arms, beyond keeping them, should therefore protect something more than mere carrying incidental to keeping arms. See Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880) (“[T]o bear arms implies something more than mere keeping.”). Understanding “bear” to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between “keep” and “bear” to avoid rendering the latter guarantee as mere surplusage. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“[I]t cannot be presumed that any clause in the constitution is intended to be without effect . . . .”).

Also, the court uses founding-era writing to support its conclusion:

Several legal treatises that were in wide circulation throughout the founding era support our textual understanding of “bear arms.” In an early American edition of Blackstone’s Commentaries on the Laws of England—indeed, the “most important” edition, as Heller points out, see 554 U.S. at 594—St. George Tucker, a law professor at the College of William & Mary and former influential Antifederalist, insisted that the right to armed self-defense is the “first law of nature” and that “the right of the people to keep and bear arms” is the “true palladium of liberty.” 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia app. n.D. at 300 (Phil., William Young Birch & Abraham Small 1803); see also McDonald, 561 U.S. at 769 (treating Tucker’s notes on Blackstone as heavily instructive in interpreting the Second Amendment); Heller, 554 U.S. at 606 (same). And in advocating for the prerogative of the Judiciary to strike down unconstitutional statutes, Tucker wrote: “If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, . . . would be able to pronounce decidedly upon the constitutionality of these means.” Tucker, supra, at 289; see also Michael P. O’Shea, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of “Bearing Arms” for Self-Defense, 61 Am. U. L. Rev. 585, 637–38 (2012). Indeed, as Tucker explained, “[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Tucker, supra, vol. 5, app., n.B, at 19.

Blackstone himself espoused a similarly sacred view on the right to bear arms for Englishmen, which was most notably codified in the 1689 English Declaration of Rights as the right of Protestants to “have Arms for their Defense suitable to their Conditions and as allowed by Law.” Bill of Rights 1689, 1 W. & M., c. 2 (Eng.); see also Alden v. Maine, 527 U.S. 706, 715 (1999) (noting that Blackstone’s works “constituted the preeminent authority on English law for the founding generation”). As Blackstone explained, the 1689 Declaration enshrined “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defence.” 1 William Blackstone, Commentaries *144.8 It followed from Blackstone’s premise that such a right, the predecessor to our Second Amendment, “was by the time of the founding understood to be an individual right protecting against both public and private violence.” Heller, 554 U.S. at 594 (emphasis added); see also 2 William Blackstone, Commentaries on the Laws of England 441 (Edward Christian ed., 1795) (“[E]veryone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.”).

And: discussion and rejection of the views of originalist pro-gun control scholars Saul Cornell and Patrick Charles.

More from Eugene Volokh here (linking to commentary by Josh Blackman).  A lot more from David Kopel here.

Congratulations to San Diego-based USD law alumnus (and my former student) Alan Beck, counsel for the plaintiff-appellant.


Birthright Citizenship: What the Meaning of “in” is
Andrew Hyman

This is a brief followup to Mike Ramsey’s recent post about birthright citizenship for babies born to people who have immigrated illegally to the United States.  The Citizenship Clause 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.”  Most of the discussion has revolved around the meaning of the phrase “subject to the jurisdiction thereof” (note the definite article “the” which seems in this context to suggest full rather than partial jurisdiction).  I won’t now add to what was previously said about that phrase.  I just want to now put in a good word for also discussing the meaning of “in.”

To be physically “in” the United States is not the same as being lawfully “in” the United States, and the word “in” in the Citizenship Clause may well mean both physically and lawfully “in” the United States.  Many post-1868 cases support that view.  See, e.g., U.S. v. Tu Joy, 198 U.S. 253 (1905): “The petitioner, although physically within our boundaries, is to be regarded as...stopped at the limit of our jurisdiction and kept there while his right to enter was under debate.”  Or see Zartarian v. Billings, 204 U.S. 170 (1907): “Never having legally landed, of course [he] could not have dwelt within the United States."  Or see Kaplan v. Tod, 267 U.S. 228 (1925) (“The appellant could not lawfully have landed in the United States. . . and until she legally landed ‘could not have dwelt within the United States’”).  Or see Leng May Ma v. Barber, 357 U.S. 185 (1958): “We conclude that petitioner's parole did not alter her status as an excluded alien or otherwise bring her ‘within the United States’ in the meaning of § 243 (h)."  This is all very similar to the ancient diplomatic doctrine of quasi extra territorium (Latin: “as if outside the territory”).

This is not to say that the words “subject to the jurisdiction thereof” do not provide a textual way to resolve the matter.  All I’m saying is that the word “in” could perhaps resolve it too.  There are a lot of subtleties here, not least of which is that being within a legal jurisdiction is not always the same as being within a territorial jurisdiction, which in turn is not always the same as being physically within a territory.

Pre-1868 evidence about the word “in” would be useful.  If there is legitimate doubt about the question, then that counsels against any court overturning otherwise-valid statutes that address the matter.  But the matter should only be considered doubtful once interpretive rules have failed to yield clarity.  See John McGinnis: “the practice of liquidation confirms that for the Framers, clarification of unclear text through interpretive rules comes before any obligation of judicial clarity comes into play” (thanks to Will Baude for the pointer).

A Response on Birthright Citizenship
Devin Watkins

[Ed.: For this guest post we welcome Devin Watkins, a frequent writer on constitutional law issues from an originalist perspective].
Concerning the topic of birthright citizenship, I wish to play devil’s advocate for a moment. I support granting birthright citizenship as a policy—which I believe Congress clearly has the power to do—but I have doubts as to it being a constitutional requirement. That doesn’t mean I am convinced that it isn’t required, but I am skeptical.

Michael Anton has spoken of the language of the congressional debates on the Fourteenth Amendment. Reading those quotes, as Mr. Anton has laid out, should at least raise questions. But as Justice Scalia described [Ed.: Quoting Judge Henry Friendly, I believe], “legislative history is like walking into a crowded cocktail party and looking over the heads of the guests to pick out your friends.” Each side can do it, to some extent, and so it can become muddled.

But legislators do not pass laws in isolation, and legislative debates are not always the best source of the original understanding.  Prof. Ramsey has questioned if it applies based on the text and pre-drafting history. In other words, the context in which this amendment was written that could lead one to this understanding of the text without relying upon the legislative debates. So let me do just that, with at least a plausible account of such context (although I agree there are arguments on both sides of this issue).

Let us then return to the life in 1866 when the amendment was proposed. This was after the Civil War and the Radical Republicans were trying to restore the rights of African-Americans which had been oppressed by the south. While the Thirteenth Amendment had prohibited slavery, African-Americans were being oppressed in many of their other rights, which Congress wished to restore.

Key to the Citizenship Clause at issue is that the Supreme Court in Dred Scott had held that citizenship was “confined to the white race.” The radical republicans believed that Dred Scott was wrongly decided and wanted to restore what they saw as the rightful interpretation of the Constitution. To do this, the amendment restored African-American rights to citizenship at birth—along with all other people—to be equal to what had always been the case for white Americans.

But then we must consider what were the traditional rights of white Americans to citizenship at birth that would now be extended to all people. To do this requires going back to English common law, which American courts then adopted, which guided birthright citizenship prior to the Fourteenth Amendment. As the Supreme Court would later note in United States v. Wong Kim Ark, 169 U.S. 649 (1898), the most authoritative English common law case for birthright citizenship, that was adopted by the 1787 Founders, was Calvin’s Case, decided by Sir Edward Coke—probably the most revered of the English jurists by the American founders.

Calvin’s Case lays out the terms by which English subjects would have birthright citizenship. According to Coke, the key question concerning if a person was a citizen at birth was the allegiance of the parents at the time of birth.

This doesn’t mean that the parents must be citizens. Coke describes three relevant types of allegiance. (1) Allegiance “originally is due by nature and birth-right” (birthright citizenship), (2) Allegiance acquired (naturalization) or Denizen (permanent resident), (3) temporary allegiance (visa). As long as the parents, at the time of birth, owed at least temporary allegiance to the government, the child was considered to have allegiance by birth (or what we would call birthright citizenship).

But Coke noted that merely being within the territory wasn’t good enough. He wrote that “neither the climate nor the soil, but [a]legiance and obedience that make the subject born; for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soil, and under his meridian, for that he was not born under the [a]ligeance of a subject, nor under the protection of the King.”

So let us assume for a moment that the Fourteenth Amendment’s Citizenship Clause merely applied this common law definition of natural born citizen to all people rather than just white citizens (as Dred Scott incorrectly interpreted). How would that apply to illegal immigrants?

An argument could be made that it would depend on if they entered the country legally. If they got a visa or otherwise entered legally, at that moment they agreed to follow all the laws of the United States; they agreed to at least temporary allegiance during the time in which they are present in the United States, and the United States choose to allow them to enter agreeing to provide them protection. Even if they later violate the laws, they still agreed to follow them.

If, however, they sneak across the border, by what public act did they agree to follow United States laws or the United States agree to provide them protection? As Coke noted, merely entering the country soil is not enough. It also seems strange to describe the act of violating the United States laws, by entering the country illegally, as even showing the intent by the individual to obey the United State's laws.

Coke in Calvin’s Case often asks if a person who acts to overthrow the government has committed treason to determine if someone owes such a duty of obedience and allegiance to the government. Treason has a unique relationship with citizenship, as the Supreme Court held in Kawakita v. United States (1952): citizens are required to not act against the United States no matter where they are, as they always have a duty of obedience to the United States. Likewise Coke notes that people who enter in amity could be guilty of treason, but a soldier who enters while hostile to the government could not be.

So imagine if a person sneaks across the United States border and attempts to overthrow the United States by committing an act of sabotage. Would that individual be guilty of treason? It seems to me to not depend on if the individual is an agent of a foreign power, but that they never agreed to respect the authority of the United States. Without any even plausible act whereby they agreed to pledge even temporary allegiance to the United States, the prohibition on treason cannot apply to them.

And now we get to the text of the Fourteenth Amendment, which states it only applies to those “subject to the jurisdiction” of the United States. If a person cannot be convicted of treason, they are not truly “subject to the jurisdiction” of the United States.

I hope this illuminates at least a plausible argument to consider on the Fourteenth Amendment’s Citizenship Clause based only on text and pre-adoption history. As I noted at the beginning, I actually support the policy of birthright citizenship for all people born here. But it is far closer question concerning if it is a constitutional requirement.

MICHAEL RAMSEY ADDS:  Here is another originalist defense of the Anton position: Juan Davalos, No, The Fourteenth Amendment Does Not Authorize Birthright Citizenship (at The Federalist, thanks to Mark Pulliam for the pointer).



Birthright Citizenship and the Conservative Living Constitution (Updated)
Michael Ramsey

In last week's Washington Post, former presidential advisor Michael Anton argues that the Fourteenth Amendment's guarantee of U.S. citizenship to persons born in the United States should not extend to children of aliens not lawfully present (and perhaps not to persons only transitorally present in the US): Citizenship shouldn’t be a birthright.

Gerard Magliocca (Balkinization) and Jonathan Adler (Volokh Conspiracy) object on originalist grounds, relying in part on scholarship by now-Judge James Ho (5th Circuit).

I agree with Professors Magliocca and Adler and Judge Ho.  I looked a this issue closely in connection with a possible law review article, which I instead turned into a series of blog posts -- see here (part 1), here (part 2), here (part 3) and here (reprise a few years later).  There are some serious originalist scholars on the other side (discussed in my prior posts) but with all respect to them I don't think it's a close question so long as we are employing an original public meaning analysis.  

The topic highlights a broader point.  In connection with Judge Kavanaugh's nomination to the Supreme Court, some commentators have basically equated textualist originalism with conservative results.  I think that is in part because they have not fully appreciated the power (or threat, depending on how one looks at it) of a conservative living constitution.

Anton's argument is weak on originalist grounds, but as a living constitution argument it's likely to have considerable attraction.  See this post by Mike Rappaport: A Nonoriginalist Challenge to Birthright Citizenship for Illegals: Nonoriginalist Arguments (aside: Professor Rappaport, however, agrees with me and others on the originalist reading).  To the three arguments Professor Rappaport makes, I'd also add one of judicial deference: if it seems a close question on pragmatic/normative grounds how citizenship should be awarded, and if the framers did not have the issue clearly in mind in drafting the constitutional rules, perhaps the issue is best left to Congress and the President as the institutions most able to balance the competing considerations.

With a hypothetical five-Justice conservative living constitution majority on the Court, the prospect for dilution of the birthright citizenship rule would, I think, be substantial.  It's a recurring theme in some conservative circles; and the fact that the U.S. is the substantial minority in the world in recognizing nearly unlimited territorial birthright citizenship provides moral "cover".

But with an originalist (or partly originalist, or originalist-oriented) Court, I think there is little prospect of a change.  The originalist arguments are too strong.  Not all  originalists will be persuaded, but enough will be that it will be hard to prevail.

Perhaps this is a naive view -- proponents of the originalism-equals-conservative results-assessment will say so.  But I think they underestimate the power of a judge's overt commitment to originalism as a methodology.  

It's common to think of the"great divide" (as Justice Scalia put it) in constitutional interpretation as the divide between originalism and living constitutionalism.  As a matter of theory, that's true.  But -- as birthright citizenship illustrates -- as a matter of practical outcomes, originalism is actually a middle ground between liberal living constitutionalism and conservative living constitutionalism.

UPDATE:  Michael Anton has a long response to critics here, with more originalist arguments (via Powerline).  But his arguments are only fragments of the congressional debates and don't effectively grapple with the text or the pre-drafting history.

Garrett Epps (Baltimore) has a good lengthy account of the debates here (from 2011).