New Book: Making Habeas Work by Eric Freedman

Recently published, by Eric Freedman (Hofstra): Making Habeas Work: A Legal History (NYU Press 2018).  Here is the book description from the publisher: 

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes. 

This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.

Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.

Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.

(Thanks to Seth Barrett Tillman for the pointer.)

RELATED: Noted here earlier this year, Habeas Corpus in Wartime (Oxford Univ. Press 2017) by Amanda Tyler (Berkeley).


Illegal Immigration and Congressional Apportionment
Michael Ramsey

At Huffington Post, Sam Levine reports: Alabama Sues To Exclude Undocumented Immigrants From Census Count.  The post references several law professors on the dubiousness of the suit, including me.

Alabama is suing the Trump administration to force the Census Bureau not to count undocumented people as part of the decennial tally used to determine how many seats in Congress each state gets.

The suit signals a continued conservative interest in changing the way the census counts immigrants. In a statement, Rep. Mo Brooks (R-Ala.), one of the plaintiffs in the suit, said apportionment should exclude immigrants and be based on only the citizen population. [Ed.: actually I think the suit is just to exclude people who are in the U.S. unlawfully, not all non-citizens].  Rep. Steve King (R-Iowa) and Kansas Secretary of State Kris Kobach (R) have made similar calls. Missouri lawmakers are considering legislation to base their state legislative districts based only on citizen population.


Every 10 years, the census counts all people in the United States, regardless of their immigration status, and that tally is used as the basis to figure out how many congressional seats each state gets. The 14th Amendment says congressional seats should be apportioned based on simply the number of “persons.”

But in a suit filed Tuesday in federal court in Alabama, Brooks and the state’s Attorney General Steve Marshall (R) argue that in the 18th and 19th centuries, the word “persons” would not have been understood to include undocumented people in the country. They argue that including undocumented immigrants in the count to determine congressional representation unfairly allows states with large undocumented populations to have inflated political representation. Alabama is projected to lose a congressional seat after the next census.

Franita Tolson (USC), Pamela Karlan (Stanford) and I are noted as questioning the basis of the suit.  My reported comment is but truncated but basically accurate.  Here's my full comment to Mr. Levine:

I haven't followed this particular suit but I'm familiar with the issue.  I also haven't looked closely at the historical evidence.  That said, I'm very skeptical that there is historical evidence to support Alabama's position.  The ordinary meaning of person obviously included illegal immigrants at the relevant times.  The framers notoriously added a specific clause to limit the counting of slaves (the 3/5 clause) so they plainly thought that absent that clause slaves would count as "persons" for purposes of apportionment.  In the same clause they also specifically excluded "Indians not taxed" from apportionment.  So again they seemed to be thinking of "person" as having the ordinary all-encompassing meaning, and then putting some limitations on what persons would be counted.  If they'd meant to also limit the apportionment to persons lawfully in the country, they could easily have said so, in the same clause.  True, unlawful immigration wasn't a big issue back then because there were few restrictions on immigration -- but there were some (at the state level) so the issue would not have been beyond their understanding.  Perhaps there is some evidence from commentary at the time that would call this textual analysis into question, but I'm not aware of it.  And surely the burden is on Alabama to explain why individuals ordinarily called persons were not "persons" for this purpose.

On further reflection, I should have made clear that mine is a textual/originalist analysis.  And also on further reflection I still think I'm right, although the analysis may be a bit more complicated.  The operative language is Section 2 of the 14th Amendment (which is taken from the original language of Article I, Section 2, with the 3/5 clause dropped):

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

If there's any ambiguity here, it's in the question of who are persons "in each State" rather than who are "persons."  I'm confident that there's no relevant historical meaning of "persons" that doesn't include all human beings (and, as I noted in my comments, the 3/5 clause confirms this -- the drafters of the original Art. I Sec. 2 language thought slaves were "persons" and would be counted in full for apportionment unless the text expressed a limitation.)  So unlawful immigrants are clearly "persons" -- the question is whether they are persons "in" the State.  I assume travelers not resident in the state, although obviously persons, are not counted for apportionment purposes because they are not "in" the State for purposes of apportionment, even though they may be literally physically in the state on the date of the census.  Perhaps one could similarly argue that persons unlawfully present, even though resident, are not "in" the state in the constitutional sense.

But I think that interpretation is ruled out by the "Indians not taxed" exclusion.  This phrase referred to tribes not under the jurisdiction of the state and the United States, either legally (by treaty) or practically (because they were beyond effective control).  The existence of this exclusion indicates that the drafters understood that these tribes would be "persons in [the] State" for apportionment purposes unless specifically excluded.  It also shows (as indicated in my comments) that the drafters were thinking about categories of persons to exclude from the count -- and if they had concerns about people unlawfully present, they could have added that exclusion as well.  The Alabama suit tries to add a word the framers left out: "counting the whole number of persons [lawfully] in each State."

This, I emphasize, is a textualist/originalist analysis.  I think it is conclusive (scholars who think originalism doesn't yield definite answers to actual litigated cases are encouraged to show why I'm wrong).

A living Constitution analysis, on the other hand, is much stronger for Alabama.  Although there likely were some persons unlawfully present (under state law) at the time of the Amendment, it was undoubtedly a very small number.  Material restrictions on lawful immigration weren't adopted until later, and the existence of large numbers of undocumented residents is a recent phenomenon.  Thus it made sense for the framers not to bother excluding this category, because it wouldn't materially affect the count and surely wouldn't affect the apportionment.  Now, matters are entirely changed -- it may well be, as Alabama argues, that excluding the category would affect the apportionment.  So perhaps Alabama can argue that, similar to "Indians not taxed" in the nineteenth century, the category of undocumented residents represents a category of persons not a full part of the political entity, and thus appropriately excluded from apportionment as not fully "in" the state.

Of course there are living Constitution arguments in response as well.  The outcome would mostly come down to whether one thought undocumented residents ought to be counted for apportionment as a policy matter.  My point is that a textualist/originalist approach seems to give a more definite and objective answer.  (And note that the two other professors quoted in the article as opposing the suit also give originalist-oriented responses).

(Thanks again to Mr. Levine for letting me know about the suit and getting me thinking about it).



Ilya Somin on Intrinsic and Instrumental Originalism
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Intrinsic vs. Instrumental Justifications for Originalism.  It begins:

Originalists disagree among themselves about what exactly qualifies as the original meaning that judges and other government officials are required to obey. They also differ on the even more fundamental question of why we should obey the original meaning in the first place. Some believe that adhering to original meaning is inherently valuable, independent of consequences. These people can be called "intrinsicist" originalists. Others advocate originalism for instrumental reasons: they believe that following the original meaning leads to good consequences, or at least better ones than living constitutionalism. The difference between intrinsic and instrumental justifications for originalism has important practical implications, as well as theoretical ones.

The post then examines "Problems with Intrinsicist Justifications for Originalism," identifying several intrinsic justifications, including: 

Finally, some originalists argue that we must obey the original meaning because that is the only way to adhere to the "rule of law." The rule of law means different things to different people. But, at least on several standard conceptions of it, the relationship between the rule of law and originalism is merely a contingent one. Whether originalism promotes the rule of law better than living constitutionalism depends in large part on the specific content of the original meaning.

For example, the rule of law is often defined in contrast to "the rule of men." Whereas the former is based on general, impersonal rules, the latter is subject to the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. Consider a constitution that includes a provision saying that "the meaning of the law is whatever the president says it is," and historical evidence indicates that this clause was meant to give the president unfettered power to define what counts as lawbreaking and punish offenders as he sees fit. In this scenario, adherents of the rule of law defined as the antithesis of the rule of men, would do well to reject originalism and try to give this clause as narrow an interpretation as they can. They should try to minimize its impact in much the same way as liberal Christians and Jews minimize the significance of biblical passages endorsing slavery and the subordination of women. Similar contingent factors affect the connection between originalism and other standard conceptions of the rule of law.

(As an aside at this point, I'll say that it's not clear to me that support of the rule of law is an intrinsic rather than an instrumental justification.  The reasons one would support the rule of law are, I think, typically instrumental).

The next section of the post is titled "Implications of Adopting an Instrumental Justification for Originalism" and begins:

In my view, like that of McGinnis and Rappaport, originalism can only be effectively defended on instrumental grounds. I think the original meaning of the US Constitution protects liberty and several other important values better than any currently feasible alternative is likely to do. And, like them, I believe (at least tentatively) that constitutional rules adopted through supermajority processes are likely to be, on average, better (on consequentialist grounds) than those developed by judges or conventional political majorities.

I will not try to defend these conclusions in any detail here (though I have in part done so previously). I will instead note some important implications of instrumental defenses of originalism, which qualify their scope.

And in conclusion:

In sum, there is good reason to reject intrinsicist justifications of originalism in favor of instrumental ones. But the latter have a number of potentially uncomfortable implications. Of course, the same thing is true for any plausible version of living constitutionalism. No approach to constitutional theory can sidestep difficult questions about the reasons why we should adopt it in the first place.

This is an important and thought-provoking post (inspired by Andrew Coan's important and thought-provoking article noted here).


John McGinnis on Populism and Federalism
Michael Ramsey

At Liberty law Blog, John McGinnis: To Restrain Populism, Revive Federalism.  From the beginning:

[T]here is no doubt the Framers designed the federal government to have more elite elements than the state governments of the time.  The Electoral College was structured to filter the popular will to elect individuals of substantial preexisting reputation.  The Senate also was indirectly elected and its long terms made it more likely that the wealthy would serve. The judiciary was the redoubt of the learned profession of lawyers, representing the cognitive form of elite that was rising in importance in the Framers’ day and has become dominant in our own.

States, in contrast, could be reservoirs of populism. In the critical period between the Articles and the Constitution, they had in fact often reflected populist policies. The Constitution was designed to counteract their worst excesses through giving the more elite federal government power over such matters as interstate commerce and the federal judiciary some control over such matters as the abrogation of contracts. But our system of dual sovereignty assured that populism still had a role to play in the many areas where no institution of the federal government was given power.

And in conclusion:

With the rise of populist figures as ideologically diverse as President Donald Trump and Senator Bernie Sanders, we may well be now witnessing the backlash against the elite element of government that comes from the excessive reduction of the Constitution’s popular element.  If so, the remedy for populism is not to stamp it out, but to restore the elements of our original Constitution that gave it greater play. We need a constitution that will bend to populist winds so that it will not break.


The President, the First and Fourteenth Amendments, and the Take-Care Clause
Chris Green

Recent cases at the Supreme Court, the Ninth Circuit, and the Southern District of New York all pose an important issue that could be clarified with more attention to the Take-Care Clause of Article II.  Trump v. Hawaii, the travel-ban case argued at the Supreme Court last month, featured an Establishment Clause issue added by the Court itself. Yet the First Amendment applies only to Congress, not executive officers. The DACA case at the Ninth Circuit, Regents v. DHS, featured an argument under the Equal Protection Clause, which doesn't even apply to Congress, and certainly not the President. Finally, today, in Knight Institute v. Trump, SDNY Judge Buchwald held that the President violated the First Amendment by blocking particular users on Twitter.

None of the litigants or amici in these cases has couched the arguments against presidential discrimination in terms of the Take-Care Clause: "he shall take Care that the Laws be faithfully executed." But this is a much better home, textually, for allegations of unconstitutionally discriminatory presidential behavior than the First or Fourteenth Amendments. As readers of this blog will surely know quite well, constitutional interpretation is sometimes difficult. But interpretive issues do not get any easier than whether "Congress" or "State" includes the President.

We might imagine a hypothetical: in 1790, would it have been constitutional for President Washington to have enforced the criminal law only against his political enemies (as few as they were at the time)? This seems a paradigmatic violation of the take-care duty: to be "faithful"--to be bona fide--means, in part, not to be invidiously discriminatory. Nicholas Quinn Rosencranz has suggested that "the Take Care Clause ... reflects a principle of nondiscrimination (on the basis of speech and religion, among other things) in the execution of law."

The Take-Care Clause has, alas, received almost no attention in Trump v. Hawaii, Regents v. DHS, or Knight Institute. This is unfortunate. None of these cases, however, is final. The Supreme Court has another month to think about including a discussion of the take-care duty in the Hawaii case, and the Ninth and Second Circuits still have the chance to do the same in Regents and Knight. The issue of the textual foundations for the President's nondiscrimination duty is surely worth at least a learned footnote, or three!

Dennis Baron on Scalia, Heller and Corpus Linguistics
Michael Ramsey

In the Washington Post, Dennis Baron (Illinois, English/Linguistics): Antonin Scalia was wrong about the meaning of ‘bear arms’.  Key excerpts:

In his opinion in Heller, Justice Antonin Scalia, who said that we must understand the Constitution’s words exactly as the framers understood them, disconnected the right to keep and bear arms from the need for a well-regulated militia, in part because he concluded that the phrase “bear arms” did not refer to military contexts in the founding era.


But Scalia was wrong. Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare — they’re almost nonexistent.

A search of Brigham Young University’s new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase “bear arms.” BYU’s Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military.

I would like to hear more about the eighteenth century use of the full phrase "keep and bear arms."  But clearly corpus linguistics analysis is not always going to produce result originalists expect or are happy with.

Thanks to Neal Goldfarb (LAWnLinguistics) for the pointer.  He has a helpful background post on the BYU project here: The BYU Law corpora (updated).  It begins:

I’d imagine that most people who’ve been actively involved with corpus linguistics are familiar with the BYU corpora—a collection of web-accessible corpora created by Brigham Young University linguistics professor Mark Davies. These corpora (and BYU’s corpus-linguistics program more generally) have played an essential part in the development of what I’ll call the corpus-linguistic turn in legal interpretation. The BYU corpora served as my entry-point into corpus linguistics, and they have provided the corpus data that has been used in most of the law-and-corpus-linguistics work that has been done to date. And beyond that, the BYU Law School has played an enormous role, in a variety of ways, in Law and Corpus Linguistics becoming a thing.

One of the things that the law school has been doing has been happening largely behind the scenes. For the past two or three years, people there have been developing the Corpus of Founding Era American English (COFEA)—a historical corpus that is intended as resource for studying language usage in the time leading up to the drafting and ratification of the U.S. Constitution. At this year’s conference on law and corpus linguistics (the third such conference, all of them hosted by the BYU Law School), we were given a preview of COFEA. And via a tweet by the law school’s dean, Gordon Smith, I’ve now learned that a beta version of COFEA is up and available for public playing-around-with, as are beta versions of two other corpora: the Corpus of Early Modern English and the Corpus of Supreme Court of the United States.


Kristen Eichensehr: Courts, Congress, and the Conduct of Foreign Relations
Michael Ramsey

Recently published in the University of Chicago Law Review, Kristen E. Eichensehr (UCLA): Courts, Congress, and the Conduct of Foreign Relations (85 U. Chi. L. Rev. 609 (2018)).  Here is the abstract:

In the US constitutional system, the president generally conducts foreign relations. But not always. In recent years, the courts and Congress have repeatedly taken steps to interact directly with foreign governments. Nonexecutive conduct of foreign relations occurs when the courts or Congress engage in or take actions that result in the opening of a direct channel of official communications between the US nonexecutive branch and a foreign executive branch. Nonexecutive conduct of foreign relations raises serious constitutional questions, but to date there is no clear rubric for analyzing the constitutionality of the judiciary’s or Congress’s actions. Moreover, nonexecutive conduct of foreign relations is likely to become more frequent due to changes in technology, foreign governments’ increasing sophistication about the US government, hyperpartisanship in the United States, and what might be called the “Trump effect.”

Building on Justice Robert Jackson’s iconic tripartite framework from Youngstown Sheet & Tube Co v Sawyer, this Article proposes a converse Youngstown framework for determining when nonexecutive conduct of foreign relations is constitutional. The converse Youngstown framework judges the constitutionality of the courts’ or Congress’s actions in light of executive authorization or condonation (Category 1), executive silence (Category 2), or executive opposition (Category 3). The converse Youngstown framework offers significant advantages over the current ad hoc approach to analyzing nonexecutive conduct of foreign relations, and it avoids some of the pitfalls that critics have identified with traditional Youngstown analysis. First, it more accurately reflects the fact that the president isn’t the only actor who exercises foreign relations initiative. Second, it avoids much of the indeterminacy that plagues traditional Youngstown analysis. Finally, it simplifies the constitutional analysis of nonexecutive conduct of foreign relations by explaining why easy cases are easy, allowing courts to engage in constitutional avoidance in some cases, and showing how Congress and the courts may sometimes trump the executive, even in Category 3.

Though I'm not a fan of tripartate analyses not connected to Constitution's text, I agree at least to this extent: (1) textually, Congress has some powers it can exercise in conjunction with or in support of the President but cannot exercise in opposition to the President.  These are powers it holds from the grant of power "To make all Laws which shall be necessary and proper for carrying into Execution ... all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (2) I think it clear that "Congress ... may sometimes trump the executive, even in Category 3 [i.e., where the President disapproves]" -- that would be the case where Congress has its own textually granted foreign affairs powers (which is actually quite often).

Bonus: The Originalism Blog is cited in notes 108 and 110.  Thanks!

(Thanks to Seth Barrett Tillman for the pointer.)


Andrew Coan: Amending the Law of Constitutional Interpretation
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted Amending the Law of Constitutional Interpretation (13 Duke Journal of Constitutional Law & Public Policy 85 (2018)) on SSRN.  Here is the abstract:

In recent years, the law of interpretation has received a welcome flurry of attention. Much of this attention has focused on the law of U.S. constitutional interpretation circa 2018 and whether that law should be understood as embracing originalism—or any other specific approach—or whether it is better understood as broadly open-textured or otherwise pluralist. This symposium essay takes a different tack. As a thought experiment, it proposes a constitutional amendment explicitly mandating a nonoriginalist approach to constitutional interpretation. This thought experiment has a number of interesting implications for both originalism and nonoriginalism and for the law of interpretation more generally. Most fundamentally, it suggests that constitutional theorists should think more deeply about the nature and grounds of constitutional decision-makers’ presumptive obligation to follow the law.

And from the introduction to the article:

Without further ado, here is my proposed amendment:

Section 1. The United States Constitution, including this Amendment, shall be construed to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society.

 Section 2. Originalism is not our law and never has been.

 As Section 2 implies, this is intended as a clarifying amendment. Contrary to the views of some originalists, the U.S. Constitution as it now stands does not compel an originalist approach to constitutional interpretation. More important for present purposes, the Constitution could not have been written to compel such an approach, nor could it be amended to do so. Even if the constitutional text explicitly mandated originalism, nonoriginalist Supreme Court justices and other constitutional decisionmakers would still have good normative reasons for ignoring that mandate, reading it flexibly, or following it selectively. At most, such an amendment might supply countervailing normative reasons for adhering to originalism, which may or may not outweigh the reasons for adhering to some form of nonoriginalism. Or so I shall argue.

The same does not hold for an amendment explicitly mandating nonoriginalism. Rather, the logic of originalism would compel nearly all committed originalists to respect the original meaning of such an amendment. The only originalists for whom this would not be true are what I have called “substantive originalists,” who embrace the Constitution’s original meaning because they believe it to be morally just or likely to produce good practical consequences. But this is a relatively small group. Other originalists would be compelled by their own precepts—popular sovereignty, written constitutionalism, legal positivism, etc.—to embrace nonoriginalism

Agreed.  But I think this thought experiment proves something rather different from what the author thinks.  First, let's rewrite the amendment to state the proposition a bit more clearly, so everyone knows what we are talking about: 

Section 1.  In the name of the Constitution, judges shall have the power to disallow any laws or government actions which they think inappropriate on moral or pragmatic grounds.

I agree that if this amendment were adopted, originalists would accept that it grants to judges the power to strike down any laws or government actions which they think inappropriate on moral or pragmatic  grounds.  But this amendment has not been, and would not be, adopted.  It is not consistent with the way we think about judges in our separation of powers system.  We do not think of the judiciary as a third branch of the legislature with a policy-driven veto power over the actions of the other branches. We think that judges have the constitutional powers they do because they interpret the existing law, not because they are well-suited to make policy. 

I would also expect most (though perhaps not all) originalists to oppose the hypothetical amendment on the ground that it vests judges with a power that is inappropriate for a non-elected branch of government.  If they lost this debate, I think most (perhaps all) originalists would concede to the lawmaking power of the people, as exercised through amendment.  The originalists' core point, though, is that this amendment has not been adopted by the people; rather it has been imposed by the fiat of nonoriginalist judges.


Lynn Uzzell on Originalism and Madison's Notes (with a Response by John McGinnis)
Michael Ramsey

At Liberty Law Blog, Lynn Uzzell has a two-part post on the reliability and significance of Madison's Notes: A Pox on Both Your Houses, Part I: Anti-Historical Originalists and A Pox on Both Your Houses, Part II: Anti-Originalist Historians.

From the first:

... [T]wo very different camps — originalist legal scholars and anti-originalist historians — unite in promoting some dubious history about Madison’s Notes of the Constitutional Convention. Each side of the debate has contributed to the debunking of Madison’s Notes, apparently in pursuit of its own agenda.


Crucial to the credibility and respectability of originalists is a credible respect for history in both of its primary meanings. First, history means the actual events that took place in the past. Of special interest to the originalist would be the persons, arguments, and activities related to the formation, adoption, and early application of the Constitution.  The second meaning is the scholarly discipline of studying the extant evidence of those past events to form a coherent narrative about them.

And both senses of history, at least insofar as the history of the Constitutional Convention is concerned, have been under threat since the 2015 publication of Mary Sarah Bilder’s book, Madison’s Hand: Revising the Constitutional Convention. This book is suffused with imaginative conjectures about how Madison “doctored” his Notes of the Constitutional Convention in order to improve his own image, yet it offers very little in new evidence—at least, very little evidence that will stand up to careful scrutiny.

And further:

That the anti-originalist historians have warmly embraced a narrative that discredits the most important historical records about the Constitution’s formation is easy to understand. But the response by some originalists is more perplexing to the outside observer. Georgetown law professor Lawrence Solum and at least one other originalist have privately confided that they believe that Madison’s Hand “helps us.” More publicly, Professor Solum has enthused: “Every constitutional law scholar needs to read this book. And the judges, lawyers, legal scholars, and historians need to rethink its approach to the Framing. Highly recommended!”  Other originalists have been conspicuously indifferent to the book.

By way of contrast, scholars who are more thoroughly acquainted with the history of Madison’s Notes — such as Gordon LloydW. B. Allen, Paul Rahe, and myself — have given compelling reasons to be highly skeptical of the most provocative claims made in Madison’s Hand.  Professor Solum did not offer his reasons for insisting so strenuously that not only historians, but also judges, lawyers, and legal scholars need to read this book and rethink the Framing. However, it is difficult not to suspect that his brief but fervent endorsement arises from some mixture of ignorance of and disdain for the history of the Constitution’s formation. In other words, not only are the details of this epoch unknown to originalists but, as far as they’re concerned, they’re not worth knowing. Therefore, a book suggesting that the history is less knowable is all to the good.

The growing tendency among originalists to spurn constitutional history is a mistake if they hope to appeal to non-specialists who are not already sold on originalism ...

John McGinnis responds: Originalism Deploys History Under Legal Discipline.  It begins:

Lynn Uzzell has written a broadside against both anti-historical originalists and anti-originalist historians. I am one of the originalists criticized. But more importantly, the picture Uzzell paints of originalism as practiced is unrecognizable to me.

Originalism today is deeply historical in its effort to recover the meaning of the Constitution as it would have been understood by the Framers of the Constitution. Indeed, the brand of originalism which Mike Rappaport and I formulated requires following the methods of interpretation that would have been deemed applicable at the time—a subject that obviously requires research into legal history. But more generally, as Mike Rappaport and I have recently discussed, scholars interpreting particular constitutional provisions today undertake deep dives into the historical usage of its legal terms, like “due process” or “cruel and unusual punishment.” They have also applied legal interpretive rules that and they have supported their use by showing that the Framers themselves used them. It is hard to think of more pro-historical originalism than this.

And from further on:

Thus, while I do not I agree with Larry Solum that Mary Sarah Bilder’s claims, even were they true, about Madison, are likely to advance originalism as a positive enterprise, they not likely to dramatically revise our interpretation of the Constitution’s original meaning. It is largely fixed by other historical evidence more relevant to the way legal meaning was determined at the time. That does not mean that the private intentions of the Framers cannot point to the relevant context of the provision. Larry Solum, who Uzzell also criticizes, says as much here, and originalists do make use of such statements for these limited purposes.

One quick sidenote (which I think supports John McGinnis):  in my investigation of Justice Scalia's methodology I conclude that he made only infrequent use of Madison's notes -- see here, Part II.A (finding only eight opinions "citing the Convention debates in support of a substantial argument" and concluding that "the course of the Convention and the discussions within it do not play as central a role in his opinions as they do in some originalist scholarship").


Nicholas Zinos: Fundamental Rights in Early American Case Law
Michael Ramsey

Nicholas Zinos (Mitchell Hamline School of Law) has posted Fundamental Rights in Early American Case Law: 1789-1859 (forthcoming British Journal of American Legal Studies Vol. 7) on SSRN.  Here is the abstract:

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.


James Durling: The District of Columbia and Article III
Michael Ramsey

James Durling (Yale Law School, Students) has posted The District of Columbia and Article III on SSRN.  Here is the abstract:

Today, nearly everyone assumes that the District of Columbia is an exception to Article III. They assume, in other words, that Congress may create non-Article III courts in the District and staff them with judges who lack salary protections and life tenure. Indeed, forty-five years ago, the Supreme Court specifically upheld the newly created non-Article III court system in the capital. And since that decision, nearly every major scholar of federal courts has accepted the District’s Article III exceptionalism. 

This Article challenges the current judicial and scholarly consensus. Drawing upon extensive historical research, it shows that both the original meaning of the Seat of Government Clause and 170 years of historical practice make clear that Article III’s judicial protections apply fully to the District. It further shows that the various functional justifications typically used to defend adjudication by non-Article III tribunals do not apply to the courts in the capital. In short, this Article establishes that the current D.C. local court system is unconstitutional.

For the thousands of D.C. residents who have to go before non-Article III courts each year, this conclusion should be significant in its own right. Indeed, the history of non-Article III courts in the District reveals the concerning political influence of crime and race on Congress’s decision to create non-Article III tribunals in the capital. But this Article’s conclusion also has broader implications outside the Seat of Government. Perhaps most importantly, it identifies a new principle—Article III’s “one-way ratchet”—that would limit the use of non-Article III tribunals in other contexts. And more broadly, the history of the District of Columbia’s relationship to Article III may provide us with new substantive and methodological insights on our Article III history and jurisprudence.

Seems right to me, as an original matter.

(Via Larry Solum at Legal Theory Blog).


Stephen Presser on Raoul Berger
Michael Ramsey

At Law and Liberty, Stephen Presser (Northwestern): The Coming Resurrection of Raoul Berger? A Remembrance of Government by Judiciary.  It begins: 

Raoul Berger (1901-2000) was the most important and daring voice in favor of an originalist approach to the Interpretation of the Constitution in the last third of the twentieth century. He was not, like many other academic theorists, someone who spent all his professional years as a tenured member of a prestigious faculty, although he was, for a few years, a professor at the law school of the University of California at Berkeley, and, following that, was Charles Warren Senior Fellow in Legal History, in residence at Harvard Law School. Before he was associated with law schools, however, Berger had been a successful concert violinist, and then an equally successful practicing lawyer and government bureaucrat. Once he embarked on his third or fourth (depending on how one counts) career, as a legal scholar, he achieved his greatest fame.  Berger first made an indelible mark for monographs on impeachment and executive privilege, works which quite clearly suggested unpardonable excesses on the part of the Republican, Richard Nixon. That work was of great comfort to Democrats and liberals, but Berger’s scholarship was non-partisan. When he embarked on the research that resulted in Government by Judiciary, and that consumed him for the last three decades of his life (he lived to be just shy of 100, and wrote almost until the end), the progressives were dismayed and the conservatives jubilant, because Berger, as an originalist, provided a remarkable historical pedigree for the notion that progressive jurists had, for many years, wrongly construed the Constitution.

Berger’s brand of originalism was a bit different from that of the most important federal judges, such as Antonin Scalia, but it was clear that Scalia owed a lot to Berger. Berger believed in what he called “original intention,” while Scalia (and, in time, most originalists) embraced what came to be known as “original understanding.” Ostensibly this was a difference between the belief that we should seek the subjective intention of the Constitution’s framers, and the notion that it was the objective meaning of the words they used which ought to guide us. Hence Scalia’s frequent recourse to contemporary dictionaries, and Berger’s frequent use of opinions expressed in contemporary debates, as, for example, in his masterwork, Government by Judiciary.

In practice there may not really be much of a difference between Scalia and Berger, since, for the most part, one’s subjective meaning is consistent with the contemporary understanding of the words used. Nevertheless, since one really cannot easily look inside the skulls of drafters, Berger’s views were something of an easy target for some critics, who dismissed him as naïve and misguided. Time, however, has tended to support Berger and tarnish his critics, as Berger’s thorough sifting of the primary sources and his relentless defense against those whom he called the “activists” (the defenders really of judicial law-making) pretty thoroughly demonstrated the brilliance and correctness of his basic points.

Berger has become something of a stock example for the discredited "old orignialism."  As this post suggests, a more nuanced account of Berger and his contemporaries would be useful in appreciating the origins of modern originalism.

Thanks to Mark Pulliam for the pointer.


A Reply on New Originalism
Eric Segall

[Editor's note: this is a guest post by Eric Segall (Georgia State) in response to this post from yesterday. As always, we welcome responsive guest posts from anyone whose work is discussed on this blog.]

I always appreciate it when Mike Ramsey comments on my originalism work. His thoughtful response to my critique of Professor Solum's "Surprising Originalism" draws a distinction between a "mistake in application" of a rule and a mistake in "rule selection." I agree there's a difference, but not one that is material to the originalism debate or my belief that New Originalism and Living Constitutionalism are indistinguishable (there are of course many originalists who don't accept the premises of New Originalism).

Mike is suggesting that New Originalists think judges should be bound by the selection of rules in the Constitution but not how the ratifiers thought those rules would be applied.  The problem with this distinction is that few constitutional rules that lead to litigation are application free. Whether we are talking about freedom of speech, equal protection, establishment of religion, or cruel and unusual punishments, most, if not all the time, judges will have to apply rules with judgment. If judges (under New Originalism) are allowed to ignore what the people in 1787 or 1868 thought about the applications of the vague rules they set forth to specific facts, then judges can update the Constitution as they see fit, i.e., like a living constitutionalist.

Moreover, the application of vague rules to questions such as the validity of state bans on SSM or bans on women in combat involve value differences not fact differences. And few scholars or judges want to apply 1868 values concerning gender, sexual orientation, and most other modern constitutional problems. Thus, living constitutionalism and New Originalism merge for virtually all litigated constitutional questions that make their way to court.

Barnett, Bernick, and Gorsuch on Coke
Andrew Hyman

Back in March of this year, Mike Ramsey mentioned a new article by Randy Barnett and Evan Bernick titled "No Arbitrary Power: An Originalist Theory of Due Process of Law.”  I don’t aim to critique that whole article here, but would like to respectfully disagree here with their treatment of Lord Edward Coke.  Justice Gorsuch said something similar about Coke in the recent 5-4 decision in Sessions v. Dimaya (striking down a statute as being too vague).  I’ll try not to get too deep into the weeds here, but some weediness is unavoidable.

Coke, the great jurist of the Elizabethan and Jacobean eras in England, was highly revered during the founding era of the United States, much as William Blackstone was.  But it’s easy to misunderstand Coke, and I think that’s what Barnett and Bernick (as well as Gorsuch) have inadvertently done here.

The constitutional historian Richard B. Bernstein has accurately observed that Coke “wrote in the crabbed, thorny prose of the seventeenth century,” and Coke did so to such a degree that Thomas Jefferson once complained: “I do wish the Devil had old Coke, for I am sure I never was so tired of an old dull scoundrel in my life.” Bernstein says that Jefferson’s view of Coke was “shared with nearly every law student of his time.”  That’s not to say that they did not admire Coke greatly, but rather that they found studying Coke very difficult.  We are now much farther removed from Coke than Jefferson was, which should give us great pause when making pronouncements about what Coke wrote.  That is why I will maintain an open mind about this matter, even as I present some evidence that seems compelling.

Here’s the passage of Coke in question, commenting on Chapter 29 of Magna Carta:

Nisi per Legem terrae.  But by the Law of the Land.  For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8. where the words, by the law of the land, are rendred, without due process of law, for there it is said, though it be contained in the great Charter [Magna Carta], that no man be taken, imprisoned, or put out of his free-hold without proces of the Law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.  Without being brought in to answere but by due Proces of the Common   law.   No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land.  Wherein it is to be observed, that this chapter is but declaratory of the old law of England. 

Keep in mind that, in the same volume, Coke explained the term per legem terrae as “by the Common Law, Statute Law, or Custome of England” (Coke elsewhere wrote that "the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them").  According to Barnett and Bernick (emphasis as in original):

By identifying due process of law with the law of the land, Coke incorporated into the former phrase the totality of England’s constitution, consisting  in Common Law,” “Statute Law,” and “Custome.” Due process meant both procedures and personnel associated with the common-law courts and the application of valid law—an enactment with content that was inconsistent with the “old law of the land” could not be applied to an individual.

In the recent 5-4 decision in Sessions v. Dimaya, Justice Gorsuch wrote something similar (citations omitted):

[I]n my view the weight of the historical evidence shows that the [Due Process] clauses ought to ensure that the people’s rights are never any less secure against governmental invasion than they were at  common  law.    Lord Coke took this view of the English due process guarantee…. And many more students of the Constitution besides -- from Justice Story to Justice Scalia -- have agreed that this view best represents the original understanding of our own Due Process Clause.

If Coke did indeed interpret the Due Process Clause as being violated whenever the legislature offers less protection than did English law that is now hundreds of years old, then such an interpretation by Coke ought to be hugely influential today, and hugely supportive of what Barnett, Bernick, and Gorsuch wrote (blockquoted above).  And, such an interpretation by Coke ought to be hugely empowering for the American judiciary, because any difference between ancient English law and current procedural or substantive law would be subject to ongoing judicial approval or rejection, to assure that current law is just as good as old English law was.  Nevertheless, for better or for worse, what Barnett and Bernick have attributed to Coke is not what Coke actually meant.  At the outset of the same volume, Coke wrote the following:

[T]he prudent Reader may discerne what the Common Law was before the making of every of those Statutes, which we handle in this work, and thereby know whether the Statute be introductory of a new Law, or declaratory of the old, which will conduce much to the true understanding of the Text itselfe.

This clarifies, for a prudent reader seeking true understanding, that when Coke later referred to the Edwardian statute “37 E. 3. Cap. 8” (which Coke meant to cite as “37 E. 3. Cap. 18”), and when Coke said that this Edwardian statute is “declaratory of the old law of England,” he meant that the statute was not saying something new but rather was reiterating what had already been said in Magna Carta.  The phrase “declaratory of the old law” did not mean “incorporating all pre-existing law,” as Barnett and Bernick would have it, although admittedly they have some very distinguished company in this misunderstanding of Coke.

It may well be that Coke made mistakes beyond misciting the Edwardian statute, but there is some truth to the humorously cynical view that Coke’s mistakes were the common law.  In any event, the mistakes of twenty-first century scholars (myself included) are surely not to be considered to be the ancient common law of England.


A Response to Eric Segall on New Originalism
Michael Ramsey

Last week I noted Eric Segall's post at Dorf on Law in which he criticized "New Originalism" as no different from living constitutionalism.  Commenting on a new article by Larry Solum, Professor Segall concluded: "The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism."  This is because, he says, "originalism, in [Solum's] hands, allows judges to update the application of the Constitution’s broad phrases over time as facts and values change."

Though I'll leave it to Professor Solum to respond specifically on his views, here I want to explain why I think Professor Segall is confusing two types of "updating" and thus reaching a stronger conclusion than is justified.  In sum, he's confusing mistakes in rule selection and mistakes in rule application.  Here's a core part of Segall's discussion, referencing the 1873 case Bradwell v. Illinois, in which the Court held that the Fourteenth Amendment did not entitle women to be members of the bar:

We know that the people living in 1873 thought the original public meaning of the Fourteenth Amendment was that women could be barred from practicing law. Solum says we are not bound by that meaning today because the people living then were wrong about the facts [regarding women's intellectual equality with men]. If he is right, then we are not bound by what the people in 1873 thought about gays and lesbians, abortion, the administrative state (such as it existed then), and the relative dangerousness of guns compared to concerns about public safety. In other words, Solum’s brand of originalism ... leads to a state of affairs where the meaning of the text is not fixed at ratification (as applied to hard facts), and we are obviously not bound by what the people at the time thought about how that meaning applied to practical legal problems. In other words, originalism and non-originalism end up in exactly the same place in the context of real life litigated cases.

Solum argues ... that the Court’s lax rules on summary judgment whereby judges dismiss civil cases before they get to the jury might be inconsistent with the original public meaning of the Seventh Amendment, which provides that in “Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” But the people who ratified this provision lived in a much less litigious world than we have today. They may well have been under the factual misunderstanding that our judicial system can tolerate the time it would take to try all civil cases without the current rules for summary judgment. Or not. The point is that if we allow judges to revisit the factual assumptions upon which the constitutional text was based, then we are in effect changing the meaning of that text, something judges do on a daily basis. If this is originalism, then everything is originalism.

But I think the Bradwell example and the Seventh Amendment example are different. 

In the first example, we are supposing for purposes of discussion that the framers of the Fourteenth Amendment adopted a rule something like "Woman shall be treated equally with men except where there are relevant differences between them," and that in applying that rule they thought women were intellectually less capable with respect to practicing law (thus the result in Bradwell).  New Originalism says: We are bound by the rule that "woman shall be treated equally with men except where there are relevant differences between them" but we are not bound by the (erroneous) factual conclusion that  women are intellectually less capable with respect to practicing law.  Thus we can now say Bradwell was wrongly decided and still be (new) originalists.  This is an example of a framers' mistake in application of a rule.

In the second example, we are supposing for purposes of discussion that the framers of the Seventh Amendment adopted a rule something like "judges shall not take factual determinations away from the jury on summary judgment" and that the framers of the Seventh Amendment made a mistake (we now believe) in thinking that this would be a sensible way to run a civil justice system in a complex society.  But (without meaning to speak for Professor Solum) I think the New Originalist conclusion is (or should be) that, notwithstanding that mistake, we are still bound by the rule that "judges shall not take factual determinations away from the jury on summary judgment."  The framers' mistake here is not a mistake of application; it is a mistake of rule selection.  And we are bound by the rules they selected, even where we think they were mistaken.

Now Professor Segall is right that this still leaves a lot of ground in which New Originalists can "update" constitutional outcomes (and that is one place where more traditional, Scalia-style originalists will disagree with them).  But it does not mean that New Orignialism collapses into living constitutionalism.  The mistake-in-rule-selection category is one place it does not.

Here's a similar example, taken from a post by Ilya Somin.  Professor Somin acknowledges (at least for purposes of discussion) that the original public meaning of the executive power clause created a unitary executive for matters involving prosecutions.  But, he says, that is a bad rule for modern conditions because the executive has become so much more powerful than the framers imagined (in large part, he says, because of departures from the original design elsewhere).  Thus, he says, we should reject the unitary executive today.

Again, I think this is an example of a mistake in rule selection.  The framers erred (we will assume) in thinking that the unitary executive would be the right design for the future.  But nonetheless, that's the rule they chose.  New originalism's mistake-in-application approach does not allow updating here, because it's not a mistake in application. (To be clear, Professor Somin doesn't make a New Originalist argument, so I'm not quarreling with his reasoning, just saying that a New Originalist should not accept his conclusion).  So again, this is an example where living constitutionalism and New Originalism diverge.


Andre LeDuc: Originalism's Claims and Their Implications
Michael Ramsey

Andre LeDuc (Independent) has posted Originalism's Claims and Their Implications (Arkansas Law Review, Vol. 70, No. 4, 2018) on SSRN.  Here si the abstract:

In this article I explore six of the most fundamental disagreements between originalism and its critics over originalism’s implications. These implications — and the implications of the critics’ alternatives — figure prominently in the arguments advanced in the debate. Reconstructing these arguments in their strongest possible form permits the confusion and misdirection in the debate over originalism to emerge.

First, originalism argues that it best comports with our republican democracy. Judicial review, performed by unelected judges with lifetime appointments, may appear inconsistent with the fundamental principles of our democratic republic. Originalism argues that deference to the original understandings or expectations with respect to the Constitution answers this challenge. The critics offer three principal replies to that claim. First, the originalist strategy of finding the original understanding and intentions with respect to the Constitution is rejected as undoable. Second, even if and to the extent that such intentions and understandings existed, the originalist project of finding meaning is rejected as blinkered and mechanical. Third, Bobbitt argues that the originalist premise is flawed: there is no need to reconcile judicial review and constitutional interpretation with democracy. 

Second, originalism claims that it offers the only neutral method of constitutional interpretation. Critics deny the argument from discretion on a number of grounds. Third, originalism claims to offer a better account of the textuality of the written Constitution. Critics reject the arguments for that claim. Fourth, I examine how originalism limits constitutional change. Critics argue that the originalists fail to provide a plausible account of constitutional flux. Fifth, I assess the claim that originalism is necessary, and therefore any other inconsistent theory of constitutional interpretation is necessarily impossible. The critics rightly deny this singularly bold and implausible claim. Sixth, I examine the claim that originalism can restore the Lost Constitution, and, in so doing, radically change our constitutional law. Critics of originalism, and even some defenders, have questioned whether originalism can accomplish the mission set out for it. This skepticism is misplaced, at least on the terms on which originalism makes its constitutional argument.

When the claims advanced by originalism and by its critics are examined, they generally prove implausible or uninteresting. The debate over originalism has reached a stalemate on these key issues. The exchanges with respect to these claims offer no reason to rehabilitate or even to continue the originalism debate.


New Book: 51 Imperfect Solutions by Judge Jeffrey Sutton
Michael Ramsey

Recently published, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford Univ. Press 2018), by Judge Jeffrey Sutton (6th Circuit).  Here is the book description from Amazon: 

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties. 

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court. But these explanations tell just part of the story. The book corrects this omission by looking at each issue-and some others as well-through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions. 

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also offers several ideas for reform.


Randy Barnett and Richard Primus Discuss Loving v. Virginia
Michael Ramsey

At SCOTUSblog, Andrew Hamm reports on a program at the Supreme Court Historical Society: Constitutional interpretation and Loving v. Virginia.  It begins: 

“How would each of you have decided Loving v. Virginia?”

Justice Ruth Bader Ginsburg put this question to scholars Richard Primus and Randy Barnett on Tuesday at the Supreme Court, interrupting their debate over modes of constitutional interpretation. According to Jennifer Lowe, the director of programs at the Supreme Court Historical Society, it’s the first time a justice has spoken up at one of these events.

Loving is a 1967 decision in which the Supreme Court held that Virginia’s anti-miscegenation law violated the equal protection clause of the 14th Amendment. Ginsburg has called Loving “one of the most important decisions” in history, “as important, if not more important, than Brown v. Board of Education,” “the one that, more than anything else, was meant to end apartheid in America.”

On Professor Barnett's response: 

For his part, Barnett defended public-meaning originalism, the theory that “the meaning of the text of the Constitution should remain the same until it’s properly changed by amendment.” He contrasted his approach with other theories of originalism based on the framers’ intentions for a particular amendment or on expectations by the public for how an amendment would be applied. Public-meaning originalism requires extensive historical investigation, but not, unlike other types of originalism, “impossible” counter-factual inquiries.

Barnett criticized Primus’ response to Ginsburg’s question. “I think on Richard’s approach, it’s very difficult to know why Loving wouldn’t have come out the other way before Brown.” “Without Brown being decided, then Loving is obviously wrong,” Barnett continued, because “legal practice and precedent said [Virginia’s law] was constitutional and so it must have been constitutional.”

Under Primus’ approach, Barnett suggested, anti-miscegenation laws “only became unconstitutional … 13 years after 1954,” when Brown was decided. But “if Loving is correctly decided, as it clearly is, in my view,” Barnett argued, “it’s because it was unconstitutional the day the 14th Amendment was enacted,” in 1868.

“Just because people back then didn’t think it was irrational” for a state to pass anti-miscegenation laws, Barnett continued, “doesn’t mean that it was rational” under the actual text of the 14th Amendment. “That was true in 1868 and it was true all the way through,” Barnett said; “it’s only people’s opinions about whether it was irrational that have changed, not the Constitution itself.”

And further:

Throughout the debate, Barnett attempted to distinguish between interpretation and application. “People make mistakes in the application phase,” and “it’s entirely possible for judges to be wrong,” even for decades. “Mostly what courts do,” Barnett had explained earlier, “is apply the doctrines they’ve developed in the past to implement the meaning of the text.” “That is your true living Constitution,” Barnett said, employing a term often used in contrast with originalism, “the living Constitution is how doctrines that have been developed to implement the Constitution have evolved over time.” “They’re only to be reconsidered,” he asserted, “if it’s established that they are somehow undercutting or inconsistent with or not faithful to both the letter and the spirit of the original Constitution.”

Barnett called for “an intellectual division of labor” between historians and judges. It’s “not realistic” that judges do the historical research required under public-meaning originalism, which should be accomplished by historians from law schools, history departments and outside the academy. Barnett noted that “in major cases that have been decided in the last five or 10 years that concern the original meaning of the Second Amendment, the right to keep and bear arms, and the original meaning of the recess appointments clause, justices don’t have to originate their own research. They rely on research that’s been done by others.”

(Thanks to Mark Pulliam for the pointer).


Lawrence Solum: Surprising Originalism (with Comments by Eric Segall)
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Surprising Originalism on SSRN.  Here is the abstract:

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks to legitimize conservative outcomes by invoking the prestige of the Founding Fathers. But in fact, the original public meaning of the constitutional text is a mixed bag--leading to many results that would be welcome by conservatives, but others that might be appealing to liberals or progressives. Even sophisticated lawyers and judges may believe that the justifications for originalism can only appeal to conservatives, but, in fact, the case for originalism, rooted in the rule of law and the value of legitimacy, can appeal to Americans with a wide range of political beliefs.

This Article discusses three ways in which originalism is surprising: Surprising theory is the topic of Part I. Surprising implications are explored in Part II. Surprising justifications are the subject of Part III. The Conclusion reflects on the implications of surprising originalism.

At Dorf on Law, Eric Segall has this response: Just the Facts Originalism: No Surprise Here.  It begins:

Professor Larry Solum just posted an article on SSRN titled “Surprising Originalism.” ...

In this piece, which was the basis of a lecture at the University of Akron, Solum repeats much of what he has said before about originalism and claims that much of the essay might surprise those not closely following recent scholarly debates over originalism. The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism.

And in conclusion:

... In other words, Solum’s brand of originalism, contrary to his two major assumptions, leads to a state of affairs where the meaning of the text is not fixed at ratification (as applied to hard facts), and we are obviously not bound by what the people at the time thought about how that meaning applied to practical legal problems. In other words, originalism and non-originalism end up in exactly the same place in the context of real life litigated cases.

Solum argues that originalism done correctly is neither liberal nor conservative and that “there is something for everyone, but everything for no one.” As an example, he argues that the Court’s lax rules on summary judgment whereby judges dismiss civil cases before they get to the jury might be inconsistent with the original public meaning of the Seventh Amendment, which provides that in “Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” But the people who ratified this provision lived in a much less litigious world than we have today. They may well have been under the factual misunderstanding that our judicial system can tolerate the time it would take to try all civil cases without the current rules for summary judgment. Or not. The point is that if we allow judges to revisit the factual assumptions upon which the constitutional text was based, then we are in effect changing the meaning of that text, something judges do on a daily basis. If this is originalism, then everything is originalism.

I don’t know any legal scholar (except perhaps Judge Posner) who believes that judges may ignore clear constitutional text or the universally understood historical context surrounding that text. No one thinks judges can simply disregard the Constitution's broad principles. Yet, most legal scholars, including Solum, believe that even though judges are bound by the vague principles set forth in the Constitution, the application of those principles to new factual contexts requires judgments based on judicial evaluations of today’s world, not the facts of 1787 or 1868. To repeat, I understand that Solum and other like-minded originalists want to say that meaning is "fixed" even as applications change over time. I am confident they sincerely believe this distinction is important. But is is not important because virtually all of the conflict that arises from constitutional litigation involves application not meaning. That is why I say that for all practical purposes, meaning does change over time, and one of Solum's premises about originalism is inconsistent with how he actually suggests judges decide real cases.


Jesse Merriam on Originalism and Libertarianism [Updated:McGInnis and Rappaport Respond]
Michael Ramsey

At Liberty Law Blog, Jesse Merriam (Loyola University Maryland, Political Science) : Originalism’s Legal Turn as a Libertarian Turn.  Here is the introduction:

Over the last few weeks, the Liberty Forum has featured several important and insightful essays on originalism, two of which I would like to explore here—partly as a way of seeking to understand Justice Gorsuch’s decision to concur with the four liberal Justices in an important immigration case, Sessions v. Dimaya (2018).

The first essay, by John McGinnis and Mike Rappaport, explored New Originalism’s so-called “legal turn.” As a result of this turn, law professors and courts have become the dominant sources of original public meaning, often prevailing over other sources (such as majority will and historical analysis) in what New Originalists dub the “construction zone.” In contrast with the highly circumscribed “interpretation zone,” the construction zone permits a wide range of disagreement over how to discern the Constitution’s original public meaning.

The second essay, a response by Ilan Wurman, argued that the transition from Old Originalism (focusing on “original intent”) to New Originalism (focusing on “original public meaning”) is largely co-extensive with the legal turn. Although Wurman expressed doubt in that essay as to whether legal meaning should supplant original public meaning when the two conflict with one another, Wurman claimed that this is not a pressing issue in practice. This is because original public meaning is often times sufficiently capacious to be consistent with whatever lawyers and judges acting in “good faith” hold it to be as a matter of law.

As a political scientist and legal theorist, rather than a law professor, I don’t consider it within my domain to engage the normative claims in these two essays. To be sure, I have my doubts about whether the legal turn is constitutionally and politically desirable. But such evaluations are not within my expertise.

I do wish, however, to engage their descriptive claims. As someone who has researched and written extensively on the legal conservative movement, I can affirm that McGinnis and Rappaport are indeed correct in observing the “legalization” of originalist discourse, and Wurman is also on solid ground in claiming that the New Originalism transition from “original intent” to “original public meaning” coincided with this legal turn.

But what these law professors miss—and what leads me to write this essay—is that originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell, a story about how legal scholars and institutions have consolidated control over originalism discourse and used this control to lead originalism away from a conservative and toward a libertarian agenda.

(Thanks to Mark Pulliam for the pointer).

I'm interested to hear what Professors McGinnis and Rappaport think of this commentary on their essay.  I agree  with the basic proposition that originalism has taken on a more libertarian tone over the last two decades, but I think the commentary is problematic in a number of respects.

UPDATE:  Professors McGinnis and Rappaport now have a response posted at Liberty Law Blog: The Legal Turn is not a Libertarian Turn.  It begins:

We are grateful that Jesse Merriam acknowledges the importance of the legal turn and our part in creating it. But we believe that he is mistaken in two important matters. First, the legal turn is not necessarily a matter of construction as opposed to interpretation. Second, the legal turn does not necessarily have a libertarian valence and indeed is likely to curb ideological bias.

And further:

But at least some versions of the legal turn are not about construction at all, but about interpretation. (Parenthetically, most originalists distinguish between public meaning, which is a matter of interpretation, and construction, concepts which Professor Merriam appears to conflate). Indeed, our own theory of original methods originalism, which we argue began the legal turn, asserts that the Constitution is written in the language of the law. Thus, that language, both legal terms and legal interpretive rules, constitute the Constitution’s meaning, accessible through interpretation. The legal turn, as represented by original methods originalism, does not fill the construction zone, but narrows, and perhaps even eliminates it.

I agree, and I would add this point as well:  Professor Merriam wrongly identifies original public meaning with New Originalism.  It's true that most New Originalists (I'm thinking here of Larry Solum, Randy Barnett, Keith Whittington and their intellectual allies) adopt an original public meaning approach.  But original public meaning is not a defining characteristic of their New Originalism.  Rather, it dates at least to Justice Scalia's famous speech in 1986.  (Reproduced at pp., 180-187 of the great collection of Scalia speeches Scalia Speaks, edited by Christopher Scalia and Ed Whelan.)  It's "new" in the sense that it is different from the "old" pre-1986 approaches identified (as Professor Merriam rightly says) with scholars such as Raoul Berger.  But that evolution is entirely different from the much more recent development of the approach called New Originalism, whose principal characteristics  I would describe as a focus on the interpretation/construction distinction (and generally a broad view of construction) plus a deemphasis of the original expected results and post-ratification practices as method of determining meaning.  Unlike original public meaning, these ideas were not part of Justice Scalia's approach and are not part of (or at least are not a principal focus of) many modern scholars who adopt original public meaning.


Stephen Sachs: Finding Law
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted Finding Law (California Law Review, 2019, forthcoming) on SSRN.  Here is the abstract: 

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, "positive" criticism is that law has to come from somewhere: judges can't discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English -- with a certain kind of reliability, but with no power to revise at will.

The second, "realist" criticism is that this law leaves too many questions open: when judges can't find the law, they have to make it instead. But uncertain cases force judges to make "decisions," not to make "law." Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force -- as law of the circuit, law of the case, and so on -- without altering the underlying law on which they're based.

This Essay claims only that it's plausible for a legal system to have its judges find law. It doesn't try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous ones in Erie, rest on the false premise that judge-made law is inevitable -- that judges simply can't do otherwise. In fact, judges "can" do otherwise: they can act as the law's servants rather than its masters. The fact that they can forces us to confront, rather than avoid, the question of whether they should. Finding law is no fallacy or illusion; the brooding omnipresence broods on.


Justice Thomas vs. Justice Gorsuch
Mike Rappaport

Recently, I noted that Justices Thomas and Gorsuch had voted consistently with one another. I wrote:

In the 19 cases since Gorsuch has been on the court, he has voted with Justice Thomas — the Court’s most originalist justice — in every one of them. When Justice Thomas dissents, Justice Gorsuch joins the dissent. When Justice Gorsuch concurs, Justice Thomas joins the concurrence. The two even agree on joining the entire majority opinion, except for a single footnote.

This was both encouraging and discouraging. It was encouraging because it suggested that Gorsuch was an originalist. But it was discouraging since it might have suggested that Gorsuch (or Thomas) were not independent thinkers. Over the years, I have encountered very smart “couples” who believe that they agree with one another on every issue. I have always been uncomfortable with that. Given the complexity of the world and the differences between people, if two people agree on every issue, that suggests they are coordinating rather than independently arriving at their conclusions.

But we need not be worried about Thomas and Gorsuch any more. Recently, Justice Thomas and Gorsuch have disagreed in three important cases. Their disagreements have been fascinating. The disagreements have not come from one of the justices compromising their originalist principles. Instead, they have largely come from different views of the original meaning. Here I discuss two of the cases, leaving the third, Patchak v. Zinke, for another time.

One of the cases is Sessions v. Dimaya, which involved the void for vagueness doctrine applied to deportation. (Void for vagueness doctrine holds void certain statutes on the ground that they are excessively vague and therefore do not provide adequate notice.) The plurality decision by Justice Kagan employed the usual nonoriginalist approach that applied precedent but did so in a way that promoted liberal results. Justice Gorsuch provided the fifth vote for that result, but did so on originalist grounds. Gorsuch argued that “the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution.” By contrast, Justice Thomas challenged Gorsuch’s defense of the void for vagueness view, claiming that neither the best reading of due process allowed it, nor a second best reading that Gorsuch relied upon.

Oil States Energy Services v. Greene’s Energy Group is another of the cases. Oil States involved whether “inter partes review, which authorizes the United States Patent and Trademark Office to reconsider and cancel an already-issued patent claim in limited circumstances,” is constitutional. This review was challenged on the ground that it allowed an administrative agency to decide traditional questions involving private rights, which Article III of the Constitution requires courts to adjudicate. This is an important issue, since it concerns to what extent adjudications can be placed in administrative agencies rather than courts.

Justice Thomas wrote the majority opinion, which held that the review could be placed in an administrative agency. Thomas relied upon traditional precedent allowing so called public rights to be placed in administrative agencies. Gorsuch dissented, arguing that courts had to hear “the traditional actions at common law that were tried by the courts at Westminister in 1789” and that patent lawsuits were such actions.

In the end, I am not entirely sure how I stand on these three cases. My initial, tentative takes are with Gorsuch on each of them, although it might turn out that Thomas is right about one or all of them. These agreements and disagreements about originalism of the two justices are a great development — not only for originalism but for constitutional law generally.

Kylie Chiseul Kim: The Case Against Prudential Standing (with my Applause)
Michael Ramsey

Kylie Chiseul Kim (Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.) has posted The Case Against Prudential Standing: Examining the Courts' Use of Prudential Standing Before and After Lexmark (Tennessee Law Review, forthcoming) on SSRN.  Here is the abstract:

Through Lujan and Lexmark, Justice Scalia constructed one of his greatest legacies: a sound and manageable definition of standing. However, a threat to this legacy, prudential standing, persists after his death. Lujan defines standing—in simplified terms—as injury, causation, and redressability. Lexmark undermines prudential standing, which exceeds Lujan’s definition of standing and which encompasses the rule against assertion of a generalized grievance, assertion of an interest outside the zone of interests protected by the law invoked, and assertion of the right of a third party. Despite these cases, lower courts continue to use prudential standing, confusing standing’s definition. Arguing for a definitive end to prudential standing, this article explains its creation as a misinterpretation of precedent and explains the problem inherent in each rule of prudential standing. In addition to arguing for strict adherence to Lujan and Lexmark, this article proposes other means to eliminate prudential standing—(1) using the correct definitions for jurisdiction, for standing, for a right to sue, for a cause of action, and for a claim for relief and (2) using correct procedural principles to enforce the otherwise valid rules mislabeled as prudential standing.

(Via Larry Solum at Legal Theory Blog).

Agreed.  Here is my post on Lexmark from 2014: Lexmark v. Static Control: The End of Prudential Standing?  Excerpts:

[Lexmark] is a welcome clean-up of standing doctrine that’s exactly right on rule-of-law grounds.  A constitutional statute is by Article VI the supreme law of the land, binding on the courts.  If such a statute authorizes a claim, the courts must apply the statute.  The Court’s invention of nebulous non-statutory “prudential” barriers to a congressionally authorized suit lets the Court pick and choose which claims to hear without any basis for such a power in either the Constitution or laws made “in Pursuance thereof.”


Lexmark parallels the Court’s similarly welcome cut-back of the political question doctrine in Zivotofsky v. Clinton (discussed here).  Again, the political question doctrine (in its pre-Zivotofsy version) allowed courts to invent reasons not to hear a case – reasons that lacked foundation in either a statute or the Constitution but instead arose from the court’s own intuitive sense of whether hearing the case would be a bad idea.

Judicial conservatives tend to like these doctrines, but they shouldn’t.   Doctrines that overtly allow courts to dismiss claims on grounds of judicial convenience undermine the rule of law, even if (in a particular case) they might allow a court to get rid of a claim judicial conservatives don’t like. And these doctrines are inconsistent with the Constitution’s original meaning, which grants no power to the courts to limit the effect of Article VI’s supreme law.

RELATED:  Also on SSRN, from Jed Handelsman Shugerman (Fordham Law School) & Gautham Rao (American University), Emoluments, Zones of Interests, and Political Questions: A Cautionary Tale (Hastings Constitutional Law Quarterly, Vol. 45, No. 4, 2018).  Here is the abstract:

As the Supreme Court addresses partisan gerrymanders in 2018, the “political question” doctrine is facing intense scrutiny. Will the Court tackle the problem or punt once again? It turns out that other high-profile cases in the lower courts offer a perspective on the political question doctrine. The Emoluments cases offer a cautionary tale about the use of the political question doctrine, and how the political question doctrine is too often an unconsciously tempting escape for judges facing challenging legal questions. The dismissal by the Southern District of New York in CREW v. Trump avoided reaching the merits of the emoluments claims by finding that the plaintiffs do not have standing to bring the suit. The decision contains serious errors in its zone of interests analysis and its political question analysis. In this essay, we argue that the plaintiffs are clearly in the zone of interests of the Emoluments clauses and that the political question analysis is out of step with a half dozen justiciable clauses of the Constitution. These errors are a sign of trying too hard to avoid the merits. There are certainly times when it is appropriate for courts to invoke the political question doctrine, but this episode is a reminder for judges to slow down and reflect when it may be an intuitively appealing resolution, but in fact, it is a dodge of a tough constitutional issue.


The Compactness Solution to Gerrymandering
Mike Rappaport

In my last post, I concluded that Ned Foley's argument that the original meaning prohibits partisan gerrymandering does not work. This is really very regrettable, since I believe that partisan (and other types of) gerrymandering is extremely problematic. I do have a solution to the problem of gerrymandering, but unfortunately it requires that the legislatures enact it, rather than the court, and the legislatures seem unlikely to adopt it.

To my mind, partisan gerrymandering, like virtually all types of gerrymandering, is an undesirable practice. I believe that elections should be fair and that such gerrymandering interferes without any good justification with the voice of the voters. That both parties have long engaged in such activities does not make this situation any better. While the Constitution's original meaning unfortunately does not prohibit such gerrymandering, the Constitution allows the political process to eliminate it.

My preferred solution to gerrymandering is to draw legislative districts in the most compact form possible. While there are different measures of compactness, compact districts would not have the ugly and peculiar shapes that current districts have that are drawn to serve the purposes of incumbents and political parties. Instead, they have more ordinary shapes similar to rectangles and circles. It is true that different measures of compactness would have different virtues, but in my view any measure would be better than no compactness requirement.  One specific measure should be chosen and followed rigorously. 

It is possible that there might not be a single result that turned out to be the most compact (even under a single measure), but instead a few different district maps might involve the most compact districts. In that situation, one might have to choose between the maps on some basis – perhaps through chance, such as picking from a hat – but the differences would be unlikely to give significant advantages to one party or another.

One issue involves whether other matters could be considered, such as drawing districts so that they would not be divided by a river or a large highway. I recognize the disadvantages of such divisions, but I think the advantage of having a clear rule of compactness outweighs them. But even if one wanted to take some of these considerations into account, that could be done, allowing those predetermined and clearly defined exceptions, but then insisting that the districts otherwise be as compact as possible.

For congressional elections, this rule could be adopted at the state level (if the states draw the districts) or by Congress (if Congress chooses to adopt the rule for the country). For state legislative districts, the state could adopt the rule.

Unfortunately, the existing legislative incumbents and parties in power do not have an incentive to adopt the compactness rule (even if they agreed with it on policy grounds). But there is a way to lessen their opposition. Congress might adopt the compactness rule with a twenty year delay, so that its effects would be hard to predict. Better yet, a constitutional amendment could be proposed, perhaps with an even longer delay, to constitutionalize the compactness rule. That would be the best way that our Constitution could address this matter.

A Response to Jed Shugerman on the Unitary Executive
Michael Ramsey

In a post at Slate, noted here last week, Professor Jed Shugerman (Fordham) challenged the historical foundations of Justice Scalia's dissent in Morrison v. Olson:

It’s worth, however, delving deeper into Scalia’s historical misunderstandings of “complete” executive control over prosecution. Scalia’s dissent in Morrison is simply inconsistent with its originalist commitments and not worth resuscitating for that fact alone.

In this post, I will examine Professor Shugerman's evidence as set forth in his essay.  I count six historical claims.

(1) "First, for most of English and American history, most prosecution was not an executive function at all, because it was a private enterprise." True enough, but beside the point.  As Scalia explained in Morrison, the question is the location of the federal government's power of prosecution.  Plus, I wonder how true Professor Shugerman's claim is, in regard to U.S. federal law.  Were most federal prosecutions in the early post-ratification period initiated privately?  Professor Shugerman does not say that they were.  He refers more generally to English, colonial and state practice.  I haven't looked at the issue specifically but I haven't run across a lot of federal prosecutions that were initiated privately.  But in any event, the existence of a private right doesn't say anything about the meaning of the executive power of the United States.

(2) "Congressional committees investigate crimes with subpoena power, and Congress has the power to enforce these powers with its own legislative contempt proceedings. Contempt of Congress is a criminal offense, and it historically has been prosecuted entirely within the legislature."  Sure, and contempt of courts has historically been punished by courts.  This just shows (again assuming it's true) that the legislative power (and the judicial power) include the power to punish contempts.  It doesn't say anything more broadly about executive power.

(3) "[T]he Judiciary Act of 1789 ... allowed deputy marshals to be removed by federal judges. Even today, federal judges have the power to appoint interim U.S. attorneys."  The second point is obviously irrelevant, as it relates to appointment (specifically spelled out in the Constitution), not removal.  The first is true (Section 27 of the Judiciary Act) and does pose a bit of a puzzle, but I don't think it proves what Professor Shugerman thinks it proves.  A better way to reconcile it with the Constitution's text is to see deputy marshals as part of the judiciary, and thus answerable to the court, not as part of the executive.  Deputy marshals, as far as I know, did not prosecute cases; they implemented orders of the court.

(4) "The first draft of the Judiciary Act also gave the Supreme Court the power to appoint the attorney general and gave district judges the power to appoint district attorneys." Again, it's not about appointment.  The Constitution provided for appointment as a shared power. That does not show that appointment wasn't an executive power; it shows that appointment was a traditional executive power that the Constitution shared with other branches as a check on the President (like treatymaking power).  The question was who had control after appointment.  The First Congress did think about this issue, in the so-called "Decision of 1789," discussed in this recent essay by Ilan Wurman, and concluded that it was an executive/presidential power.  The full story of this and similar provisions actually supports Scalia's view, as does post-ratification practice: in the early post-ratification period the Attorney General and other federal officers with prosecutorial power were understood to be removable by the President.

(5) "State constitutions adopted separate branches, and often declared a separation of powers explicitly, unlike the federal Constitution. Nevertheless, many state constitutions did not reflect Scalia’s formalism.  [They] ... sometimes placed attorneys general and prosecutors under the judiciary article or judicial sections of their constitutions."  I rate this potentially the most weighty of Shugerman's evidence by far, even though he puts it almost last (and doesn't provide any links).  It would depend a bit on the scope of that "sometimes," as well as the way the state constitutions described their systems and the way they worked in practice.  But in any event the federal Constitution did not adopt the state constitutions' approaches in many respects, and the Decision of 1789 shows that when the First Congress thought about the matter carefully, a majority understood the removal power to be constitutionally vested in the President.  I would like to see a good bit more discussion here before I found it persuasive, but it's a point worth considering.

(6) "Moreover, some of the constitutions assigned the power of appointment of law enforcement officials to the legislature with no role for the governor, and some assigned this appointment power to the judges."  Once again, appointment power is irrelevant, because (a) the issue is removal not appointment, and (b) the federal Constitution obviously rejected this approach to appointment.

On the whole this seems rather thin support for Professor Shugerman's conclusion that "Scalia’s dissent was wrong on its own originalist terms, and it still serves as a red flag against his kind of hyperformalist originalism."  Instead, I would say that if this is all Scalia's detractors have on thier side, it confirms the correctness of Scalia's dissent.

Further, as I noted in my earlier post on his essay, Professor Shugerman provides no alternative explanation of the constitutional language.  His sole argument is that Scalia's explanation does not line up exactly with some historical evidence.  But history (as historians like to say) is messy and does not always point wholly in the same direction.  The originalist question is which meaning of the constitutional language makes the most sense of both the language and the history.


Corpus Linguistics: "It's Like Westlaw for Originalism"
Michael Ramsey

Via Paul Caron at TaxProf Blog, at Law.com: Big Data Meets the Constitution in New Originalism Project.  It begins:

Five Georgia appellate judges visited a Georgia State University College of Law seminar recently to evaluate an innovative new big-data tool for ascertaining the original meaning of oft-contested words in the U.S. Constitution and other historic legal texts.

The rest is only available to subscribers but Dean Caron has some excerpts at his blog, including this: 

The students are the first to try out a searchable new database, the Corpus of Founding Era English (COFEA), made up of more than 95,000 documents from the era that Brigham Young University Law School is developing. The COFEA documents encompass newspapers, speeches, novels, diaries and personal correspondence that were produced from 1760 to 1799 during the colonial independence movement and subsequent ratification debates over the Constitution and Bill of Rights.

One criticism of originalism, noted the seminar’s professor, Clark Cunningham, is that it’s impossible to know what people really meant with certain terms back then. “Now it’s easier to,” he said.

“This is revolutionary,” said Georgia Appeals Court Chief Judge Stephen Dillard, himself an originalist. “It’s like Westlaw for originalism.” ...

RELATED: In a guest post here last Friday, James Heilpern shows how it can work in practice.


Ilya Somin on the Unitary Executive and Modern Law
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Rethinking the Unitary Executive.  It begins:

If there is one thing that most conservative and libertarian originalists agree on, it is that executive power under the Constitution must be "unitary." That doesn't necessarily mean that the president's power is unlimited, or even particularly broad. It does mean that whatever authority the executive has must be controlled by the president. He is free to hire, fire, and issue orders to all other executive branch officials, as he sees it - except in a few cases specifically noted in the Constitution, such as the requirement of Senate confirmation for cabinet officers.This issue came up recently when the Senate Judiciary Committee voted to approve a bill that would protect special Counsel Robert Mueller from being fired by President Donald Trump - the man whose activities and assciates Mueller is charged with investigating. The bill passed the Committee by a 14-7 vote. But several GOP senators - including some, like Ben Sasse, who are no fans of Trump - voted "no," citing constitutional considerations based on unitary executive theory.

For a long time, I too accepted the theory of the unitary executive. But I am no longer convinced. In this post, I try to explain where I went wrong, and why I hope others will reconsider the issue as well.

Unitary executive theory is sound up to a point. But it does not hold true in an era when much of the power wielded by the executive branch is authority that the original meaning of the Constitution never gave the federal government in the first place. Allowing such a massive concentration of authority in the hands of one man is dangerous. And it does not nothing to enforce the original meaning of the Constitution.

In some ways, the originalist case for a unitary executive is as compelling as ever. Article II of the Constitution states that "The executive Power shall be vested in a President of the United States of America." It does not say that executive power can be divided between the branches of government or given to bureaucratic agencies independent of presidential control. This strongly implies that he is supposed to have all the power given to the executive branch, except such as is specifically allocated elsewhere in other parts of the Constitution. Much evidence from the Founding era suggests that this is indeed how things were understood at the time, though some scholars argue otherwise.

If the executive branch still wielded only the relatively narrow range of powers it had at the time of the Founding, the case for the unitary executive would be very strong (at least on originalist grounds). Unfortunately, however, the current scope of executive authority goes far beyond that. To take just one particularly noteworthy example, the president now presides over a vast federal law-enforcement apparatus, much of it devoted to waging the War on Drugs (which accounts for the lion's share of federal prosecutions and prisoners). Under the original meaning of the Constitution - and the dominant understanding of the first 150 years of American history - the federal government did not have the power to ban in-state possession and distribution of goods. That's why it took a constitutional amendment to establish federal alcohol Prohibition in 1919. Giving the president control over the waging of the federal War on Drugs is giving him a power the federal government was never supposed to have in the first place. ...

This is an important challenge for originalism as a practical methodology, and an outstanding illustration of the challenge.  I think one response might be: don't do any more harm (in the sense of departing from the Constitution's design) while we try to fix or at least mitigate the departures that have occurred.  Another might be: the unconstitutional accretions of presidential power aren't related to the special counsel (Professor Somin addresses this suggestion later in his post).


Partisan Gerrymandering and The Original Meaning of “Election”
Mike Rappaport

In my last post, I presented Ned Foley’s argument that partisan gerrymandering of congressional elections violates the Constitution’s original meaning. His basic argument was that such gerrymandering prevents the House of Representatives from fulling its role in the structure of government of allowing the people to select new representatives every two years. While Foley’s argument would be quite important if it were persuasive, I argue here that it seems unsupported by history and therefore likely fails. Thus, the Constitution’s original meaning, regrettably, does not prohibit partisan gerrymanders.

Foley’s argument relies on a certain type of interpretation that he calls structural originalism. He draws a distinction between linguistic and structural originalism. He writes:

The issue of gerrymandering under the original Constitution is not a linguistic one. It does not turn on a contested meaning of the word “People” as employed . . . in the specific provision of Article I that the federal “House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” Instead, the issue is a structural one: is gerrymandering inconsistent with the principle of popular sovereignty that underlies the provision that the federal House of Representatives is to be chosen biennially to reflect the changing will of the electorate?

My way of analyzing these matters is different. I don’t think that the structure of the Constitution is directly enforceable. Instead, if the language of the Constitution is unclear, then the structure can be used to resolve an ambiguity or other uncertainty in the language.

My methodology leads to the question: what language governs the apportionment or gerrymandering of congressional districts? The most relevant (and helpful) language for Foley’s purpose in my view is the following: The “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.” The question is: what constitutes an election for a legislature by the people?

In my last post, I noted Foley’s argument that if a state require a two thirds vote to displace an incumbent, that should be unconstitutional. Foley then argues that a partisan gerrymander should be unconstitutional for much the same reason. I disagree. While I believe the two thirds vote would probably be unconstitutional, I am skeptical the same reasons apply to partisan gerrymanders.

It is likely that an election using the two thirds vote would not be an election under the Constitution. Why? One needs to look at what an election was to the Framers.

There is lots of evidence to consider, such as what elections looked like in England, in the colonies, and in the states prior to the Constitution. If, as I believe, such elections consistently employed majority rule, then that would create the significant possibility that this was part of the legal meaning of the term. Constitutional provisions were often given a legal meaning based on the historical existence of their operation in prior legal systems. For example, the term jury was often thought to require not merely a group of people, but 12 people specifically, based on the historical practice.  The more this majority rule feature was known and followed, the more likely it was the legal meaning. This interpretation, moreover, is furthered by constitutional structure or purpose – by the fact that the purpose of House elections was to allow the people to select new representatives every two years. So a two thirds rule to displace incumbents for House elections would be unconstitutional.

What about an election with partisan gerrymandering? Would that be an election under the Constitution? Again, one would want to look at the historical practices concerning gerrymandered elections in England, in the colonies, and in the states. I don’t know that much about this history. I am not aware of partisan gerrymandering occurring, but there were similar practices, such as the use of rotten boroughs and other unequal districts. Without a consistent practice against partisan gerrymandering or at least of other unequal districts, I would be hesitant to reach a conclusion of unconstitutionality. The lack of a consistent practice against partisan gerrymandering would distinguish this practice from a supermajority rule to displace incumbents. The supermajority rule would be unconstitutional, whereas partisan gerrymandering would not.

Thus, I view the matter as turning on the history. Without a strong history to support the claim that partisan gerrymandering did not constitute an election, I would be reluctant to find such gerrymanders unconstitutional.

A Corpus-based Response to Justice Sotomayor’s Comments in Lucia v. SEC
James Heilpern

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

Last week, the Supreme Court heard oral arguments for the case Lucia v. SEC. The question presented boiled down to whether an administrative law judge for the Securities and Exchange Commission is an “Officer of the United States” within the meaning of the Appointments Clause of the U.S. Constitution. Two amici briefs―one submitted by Professor Jennifer Mascott and the other by myself on behalf of fifteen linguistics scholars―used big data to analyze the original public meaning of the Clause and the word “officer” in particular. This technique is known as “corpus linguistics.” At least one justice, however, seemed unpersuaded.

Early in the argument, Justice Sotomayor stated, “[O]ur founding fathers designated some people employees and others not, serving somewhat similar functions or not, so that we can’t really go by the founding fathers’ practices because they were rather mixed. You know, a U.S. marshal was - - deputy wasn’t an officer but a -- and customs inspectors weren’t officers, but shipmasters were. All of this seems a little difficult to quantify.” [p. 23]. With all due respect to the good Justice, almost every assertion she made in that statement was factually incorrect.

Perhaps in the past, the Founding generation’s understanding of a particular Constitutional provision as reflected in their day-to-day practices would be “difficult to quantify,” but corpus linguistics makes this question much easier. Corpus linguistics investigates real-language use and function by analyzing huge electronic databases of naturally-occurring texts. These databases have an esoteric name―corpora (the plural of corpus)―but are simply digitally-searchable collections of real-world sources drawn from a particular speech community during a particular time period. These tools have been used effectively by linguists for decades to generate quantitative and qualitative data about language use in bygone eras. The legal world is only now starting to catch up. While corpus linguistics has begun to be used by judges around the country to answer questions of statutory interpretation, as Neal Goldfarb observed over at LAWnLinguistics, Lucia is “the only case in any court where corpus analysis has been used in a brief in connection with an issue of constitutional interpretation.” So can corpus linguistics help resolve Justice Sotomayor’s concerns?

For starters, the word “employee” is a French loan-word that appears to have been rarely used in the Americas at the time of the Founding. A search of BYU’s Corpus of Founding Era American English―a massive digital database of over 95,000 American texts written between 1760 and 1799―reveals only three occurrences of the word, one of which was a letter written in French. Likewise, Google Books’ Ngram Viewer―an “online search engine that charts the frequencies of . . . search strings . . . found in sources printed between 1500 and 2008”―shows that the word did not seem to enter into the American vernacular until sometime after the Civil War!

Furthermore, the word “employee” does not appear in any of the Acts passed by Congress during the first decade of the Republic―a time when the Congress was actively creating federal positions and setting up the various Departments of the executive.

The practice of distinguishing “officers” from “mere employees”―as the Court has done since at least Freytag―is therefore a modern invention and does not reflect the thinking of the Founding generation. As I argued in my amicus brief, Congress referred to just about every government worker exercising non-negligible federal power as an “officer,” including the “melter and refiner [of the U.S. Mint]”; the “Purveyor of Public Supplies”; and the “Assistant Door Keeper of the House of Representatives.” Justice Sotomayor’s specific assertion that “customs inspectors weren’t officers” couldn’t be more wrong. Each Port in the United States had three “customs officers” appointed by the President and confirmed by the Senate―a “Collector,” “Naval Officer,” and “Surveyor,” whose duties included receiving ship manifests and inspecting imports. In addition, Congress frequently spoke of lower-level Treasury officials as “officers” including “officers of inspection,” “revenue officers,” “custom-house officers,” and “officers” appointed to survey each “distillery” and “still” of “spirits” in the Union!

Justice Sotomayor is correct that deputy marshals were not considered “officers” during the Founding Era, but this does not reflect an inconsistent use of the word. As Professor Mascott explained in a recent Stanford Law Review article, “[b]ackground understanding related to . . . a special eighteenth century legal relationship between certain principals and their deputies help to explain the non-Article II treatment” of these officials. A deputy marshal was not considered an officer because as a “deputy” he was “acting as an agent[] in place of an officer”―the U.S. Marshal―who “was subject to personal legal liability for the deputy’s actions.” In other words, just because the Founding Fathers’ practices do not reflect our modern categorizations, does not mean that that they were “mixed” or unreliable. It simply means we need to do the hard work of understanding the Founders’ world view.


Is Partisan Gerrymandering of Congressional Elections Unconstitutional Under the Original Meaning?
Mike Rappaport

The Supreme Court has now accepted certiorari in two partisan gerrymandering cases, in which a political party has allegedly used its power to draw district lines to favor its electoral chances.  One case involves congressional districts (Benisek), the other involves state districts (Gill).  The usual way of thinking about these cases is that originalists believe the Constitution does not place a limit on partisan gerrymandering, whereas living constitutionalists often favor restrictions on it.

But recently Ned Foley has argued that this is mistaken. While the original meaning of the Constitution may not limit partisan state gerrymanders, he argues it does limit partisan gerrymanders of congressional elections. The reason for the difference is that the two types of elections are governed by different constitutional provisions. If Foley is correct, this is a really significant result. It suggests that partisan gerrymandering, at least for federal house elections, could be unconstitutional under the original meaning.

What then is the argument? Congressional elections are governed by the following clauses. Article I, section 4 of the Constitution allows state legislatures to adopt rules for the “Times, Places, and Manner” of congressional elections unless and until Congress choose to “make or alter such Regulations” itself. Also relevant is Article I, section 2, which requires that  “Members” of the federal “House of Representatives” be “chosen every second Year by the People of the several States.”

According to Foley:

Putting the two provisions together, state laws purporting to set the procedures for congressional elections cannot undermine the basic obligation that these elections be responsive to the periodically changing will of the “People” in the state.  In contrast to elections for the Senate and the presidency, which the original Constitution did not entrust to the “People” directly and which the Founders did not want to be so immediately susceptible to changing public opinion (setting the terms for senators and the president at six and four years, respectively), the House of Representatives was to be the one part of the federal government directly accountable to popular sentiment, and this sentiment was entitled to make itself known at biennial intervals in order to reflect the right of the “People” to update its political preferences in light of new circumstances.

If the gerrymandering of a state’s congressional districts by the state’s legislature prevents congressional elections from being responsive to the will of the “People” in the state (contrary to what section two of Article I requires), then the state legislature has breached the trust conditionally reposed in it by the Elections Clause to make procedural rules for the holding of congressional elections in the state.

Foley then offers the following hypothetical:

suppose . . . that a state law provided that to unseat an incumbent federal Representative from a  state, an opposing candidate must win two-thirds of the ballots cast in the election, not merely a majority or plurality.  [This law] would contravene the principle of democratic accountability that the biennial nature of these elections was designed to serve.  To require an opponent to receive two-thirds of the vote in order to unseat an incumbent obviously would stack the election in the incumbent’s favor, whereas the Constitution clearly contemplates that a challenger will unseat an incumbent if the electorate simply prefers the one to the other (as reflected by a majority or plurality of the ballots cast).

Extreme gerrymandering protects incumbents and threatens democratic accountability in much the same way that demanding a challenger to obtain a supermajority of the ballots does.

So is this a good argument? In my next post, I will answer that question.

Ilan Wurman on Scalia's Morrison Dissent
Michael Ramsey

At The Hill, Ilan Wurman: On presidents v. special counsels, Justice Scalia got it right long ago.  Here is his textualist/originalist argument:

There are two relevant constitutional provisions, both elucidated by a debate in the First Congress in 1789. Congress was about to establish one of the nation’s first executive departments, the Department of Foreign Affairs, and the question was what power did the president have over the removal of the head of that department. There were three plausible positions: the power to remove was coincident with the power to appoint, and thereby required advice and consent of the Senate; Congress had the power to confer a unitary removal power at its discretion; or the president had such a power by virtue of the Constitution itself.

James Madison and the Federalists made principally two constitutional arguments in favor of the president’s constitutional power. First, the executive power is “vested” in the president of the United States, except where it was specifically qualified — for example, by the requirement for advice and consent for treaties and appointments. Because the power to superintend, control, and remove officers was an executive power not otherwise qualified by the Constitution, it belonged to the president alone.

But the more convincing constitutional provision was the president’s duty to “take care that the laws be faithfully executed.” As Madison argued, “If the duty to see the laws faithfully executed be required at the hands of the Executive Magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end.” Indeed, how can the president ensure that the laws be faithfully executed if he has no ability to remove officers he believes is acting inconsistently with what a faithful execution of the law requires?

These arguments persuaded the other representatives, who voted to delete language in the bill that appeared to confer the removal power at Congress’s discretion, in favor of the following provision: “whenever the said principal officer() shall be removed by the President.” The implication, the author of the amendment explained, was a legislative “declaration of our sentiments upon the meaning of a Constitutional grant of power to the President.”

This decision has become known as the “Decision of 1789,” and stands for the proposition that the president has a unitary authority by virtue of the Constitution to remove executive officers.

The article is not a direct response to the post by Jed Shugerman noted here earlier in the week, but the two make a nice point/counterpoint.

I basically agree with Wurman, but with this quibble.  I don't think the take care clause grants the President any power.  Rather, it imposes a duty.  True, it implies that the President must have some power to enforce the law (from some other source), or the clause would be pointless.  But does not grant this power, and it certainly does not mean the President must have all powers necessary to enforce the law.  The clause requires that the President act to the extent of his powers to enforce the law, but it does not expand the extent of those powers.  As the post indicates, the other plausible source of the President's power to enforce the law is the executive vesting clause of Article II, Sec. 1, and I agree that is the right source (based on the original meaning of "executive Power").  The take care clause confirms this reading, because otherwise the President would not have power to take care that the laws are faithfully executed.

Thus the argument on the special counsel is not that without power to control the special counsel the President cannot take care that the laws are faithfully executed.  The President's take-care duty extends only to the extent of his power, and if he lacks power over the special counsel, then his duty extends no further.  Instead, as Scalia explained in his Morrison dissent, the argument is that without power to control the special counsel, the President does not fully possess the executive power, which the Constitution says he "shall" have.


The Nolle Prosequi Power of Vice President Mike Pence
Andrew Hyman

According to reports this week, the President’s former personal attorney, John M. Dowd, said in March to the Office of Special Counsel: “This isn’t some game. You are screwing with the work of the president of the United States.”  Dowd was a well-known litigator before representing Trump, and his opinion should not be taken lightly.

If Dowd’s assessment is accurate (emphasis upon “if”), and the long investigation of Trump has thus far not turned up any significant evidence of election collusion between Trump and Russia nor any significant obstruction of justice by the president, then we may be nearing  a point where Vice President Mike Pence could spring into action.  So, I would like to now hark back to two related blog posts that I wrote here, and connect them together.

First, as I wrote here in August 2017, the original meaning of the pardon power very probably does not allow a president to pardon himself, but there is widespread agreement that section three of the Twenty-Fifth Amendment does empower the vice-president to pardon the president.   While such a pardon would unquestionably be legitimate, it could have substantial stigmatizing effects upon both Pence and Trump.

Which brings me to another blog post I wrote here in June 2017.  I wrote: “the pardon power includes lesser powers, such as the power to commute sentences, and more pertinently the power to halt prosecution, technically called a nolle prosequi, which presidents have been using since the time of George Washington….The main difference between a nolle prosequi and a full pardon is that the former does not prevent eventual prosecution, whereas the latter does.”  

Putting two and two together, the Twenty-Fifth Amendment  gives the Vice-President power to grant the president  a nolle prosequi, allowing the president to, as Dowd put it, not be screwed with while he is still in office.  Such a move would not prevent investigation and prosecution of former President Trump once he leaves office (nor would it prevent Pence from granting to Trump a full pardon near the end of Trump’s time in the White House).

In fairness to both Dowd and Special Counsel Mueller,  Dowd not only reportedly said that Mueller’s office was “screwing” with the president’s work, but also said: "We had a terrific relationship with Mueller — the best that I can recall in my 50 years of practice….It was terrific, completely open, people trusted each other, and we had no misunderstandings."  Not knowing how exactly to reconcile Dowd’s two statements, I have no opinion about whether Pence should use his nolle prosequi power.  I am only saying he has it, under the Constitution as ratified in 1789, and as amended in 1967.

Executive Discretion and the Iran Deal
Michael Ramsey

At The Cipher Brief, Robert Eatinger: Can Trump Legally Withdraw from the Iran Deal?  Short answer: yes.  On the constitutional aspects:

The JCPOA [Joint Comprehensive Plan of Action, i.e., the Iran deal] cannot constitute a treaty of the United States because it has not been presented to the Senate for advice and consent as required in Article II of the Constitution. This is important because the U. S. Supreme Court has not resolved whether the president is empowered unilaterally to withdraw the United States from a treaty that has been ratified by the Senate. The president has the authority to withdraw the United States from an international agreement other than a treaty unless a Federal statute provides otherwise. [ed.: well, there might be more to be said if it were a congressional-executive agreement, but it isn't].

Both the Obama and Trump Administrations have taken the position that the JCPOA is not an international agreement other than a treaty. In a November 19, 2015, letter, the State Department informed then-Representative Mike Pompeo, R-Ks., that the JCPOA “is not a treaty or an executive agreement, and is not a signed document; it reflects political commitments between” the E3/EU +3 and Iran.

In March of this year, Senior Policy Adviser to the Secretary of State, and Director of the Secretary’s Policy Planning Staff, Brian Hook characterized the JCPOA as a sui generis nonproliferation plan of action that’s a political document. As a political document, the president has the authority to withdraw from it.

Agreed.  As to the deal's status as a political commitment (also known as a nonbinding agreement), and the President's constitutional authority to make such agreements, see my article here.  As to the President's power to withdraw, it follows from the argument discussed in the paper noted yesterday.  A presidential policy (which is what the deal is) is just a policy.  It isn't, and constitutionally cannot be, a law.  That means it did not, and does not have to, go through the procedures required by the Constitution to create law.  In the case of the Iran deal, that means (as the post notes) it did not, and didn't have to, go through the treatymaking clause of Article II, Section 2 or (depending on what you think of it) approval by Congress through legislation enacted under Article I, Section 7.  That is what makes the Iran deal constitutional (contrary to the arguments of some conservative commentators).  But it's also what makes the Iran deal weak: it lacks legal force, and so as it could be created by executive discretion, it can be terminated by executive discretion.  And the exercise of that executive discretion isn't judicially revieweable.

An aside: the post also analyzes the statutory and international law aspects of termination well.  As I've said before, one of the benefits of overseeing the Originalism Blog is the opportunity to encounter other blogs and sites I hadn't been aware of.  The Cipher Brief does a great job on the Iran deal issue.  Here's their self-description

The Cipher Brief is a digital, security-based conversation platform that connects the private sector with the world`s leading security experts. We deliver a relevant analysis of news and events that helps readers accurately anticipate and safely navigate the complex, unstable, global security environment. The Cipher Brief was founded by former CNN Intelligence Correspondent Suzanne Kelly on the belief that reporting on the latest security breaches or global security issues alone won`t always help find solutions to the bigger problems. Engaging the private sector in a solutions-based conversation is what moves the ball down the field.


David Rubenstein: Taking Care of the Rule of Law
Michael Ramsey

Recently published in the the George Washington Law Review, David Rubenstein (Washburn): Taking Care of the Rule of Law (86 Geo. Wash. L. Rev. 168 (2018)).  Here is the abstract: 

The project of squaring the rule of law with executive governance is coming to a head. Hardly a week passes without commentators summoning the rule of law to pass judgment on the legitimacy or desirability of some executive action. But the more we talk about the rule of law, the further it seems to slip away. Rather than look to the rule of law for answers, this Article shines critical light on what the rule of law ideal cannot tell us. Moreover, the Article explains why even well-intended efforts to square the rule of law with trends in executive governance can be counterproductive. To anchor these points, the Article presents comparative case studies of President Obama’s and President Trump’s signature immigration policies and the rule of law debates surrounding them. The Obama-Trump juxtaposition offers a portrait of some disquieting trends, not only for presidential administration, but also in how we think and talk about the rule of law ideal. This Article intervenes with some prescriptions moving forward—including away from rule of law talk, and towards doctrines and institutional arrangements that could more effectively check presidential power.

And here is the conclusion:

Through the Obama-Trump case studies, this Article has focused critical light on what the rule of law ideal cannot tell us, and how it can lead us astray. For those holding out hope that the rule of law can and should still matter, it must be employed more scrupulously. When applied at the retail level of gauging the legitimacy of presidential policies, rule of law talk is not only unhelpful, it is potentially dangerous. Whatever value there may be in squaring the rule of law with trends in executive governance, it seldom prevents—and almost always accommodates—accreting executive power. If that is a concern, then we should talk less about the rule of law, and insist more on doctrines and institutional arrangements that might reverse the trend.

From the text, an example of the practical implications:

Under the Supreme Court’s mainstream preemption doctrine, only federal statutes and binding administrative action can preempt conflicting state policies.  In the recent landmark case of Arizona v. United States, however, the Court indicated (if not held) that state law was also preempted by the Obama Administration’s nonbinding enforcement policies. Now, under the Trump Administration, the question is resurfacing with new hue: Can Trump’s nonbinding executive policies likewise preempt state integrationist laws?

As I have argued at length elsewhere, a federalism doctrine that would foreclose the preemptive effect of nonbinding executive policies could, cross-structurally, limit executive power. At least in instances where the Executive wants national uniformity, preemption would depend on the existence of a congressional statute or binding regulation to displace state law. Either of those alternatives would yield far more accountability, transparency, and deliberation, than if the President can preempt state and local policies through nonbinding executive memoranda and litigation briefs.

To allow the Executive to have policies that are nonbinding on itself, yet binding on states, is a structural hypocrisy that our constitutional system should not condone. Executive policies are either law or they are not. But these policies should not simultaneously be deemed law (for purposes of preemption) and not law (for purposes of separation of powers). Something must give. If the Executive can have its cake, for separation of powers, and eat it too, for federalism, then what crumbs remain of our structural constitution?

As a general matter I agree with this approach.  The emerging model of judicial review of discretionary executive acts is not a promising one, and not one based on the Constitution's original design.  Rather, the original model is in my view executive discretion sharply bounded by law in the form of structural constitutional rules; compliance with the constitutional rules is judicially reviewable but the exercise of discretion is not.


John Fabian Witt: A Lost Theory of American Emergency Constitutionalism

John Fabian Witt (Yale Law School) has posted A Lost Theory of American Emergency Constitutionalism (Law & History Review, 36:3, forthcoming) on SSRN.  Here is the abstract:

In the wake of the Civil War, Columbia Law School professor Francis Lieber, architect of some of the Lincoln administration's most important legal strategies, set out to write a definitive text on martial law and the emergency power. Lieber’s text would have summed up his view of the legal lessons of the Civil War. Lieber died in 1872, leaving an unfinished manuscript to his son, Guido Norman Lieber, soon to become the Judge Advocate General of the Union Army. Norman Lieber worked on the manuscript but never finished it. Hidden deep in the younger Lieber’s papers in the National Archives, the manuscript summarizes a strand of thinking about constitutional emergencies that first emerged in the controversies over slavery, then animated Emancipation and the broader legal strategy of the Lincoln White House, before running headlong into the post-war backlash signaled by the Supreme Court’s 1866 decision in Ex Parte Milligan. Building on debates over martial law in Anglo-American empire, the Liebers’ thinking embraced a forceful but constrained approach that made a cabined form of necessity the central principle of emergency governance in the modern state.