05/25/2017

Larry Solum on Leah Litman on Novelty and the Constitution
Michael Ramsey

At Legal Theory Blog, Larry Solum has extensive comments on a post by Leah Litman on the Take Care Blog.  From the introduction: 

Leah Litman has a very good post entitled The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part I) on Take Care Blog.  Here is an excerpt:

In an article that was just published in the Duke Law Journal, I explained why that’s wrong—that is, why a federal statute’s novelty is not an indication that the statute is unconstitutional, and why it shouldn’t be treated as one. The CFPB’s structure is established by statute, so a decision holding the CFPB’s structure unconstitutional amounts to holding unconstitutional the part of the statute that establishes the CFPB’s structure.

The novel feature of the CFPB that Litman discusses was described by the DC Circuit as follows:

[N]o independent agency exercising substantial executive authority has ever been headed by a single power. * * * Until now.

Litman's post discusses various possible rationales for the proposition  that the novelty of a statute is a reason to consider the statute unconstitutional.  One of these rationales has a strong connection to originalism.  This is the "thus far but no farther" rationale for treating novel or unprecedented departures from original meaning differently than departures that are supported by longstanding precedent the reversal of which is simply impracticable.

And in conclusion:

As should now be apparent, Litman fundamentally misunderstands the "thus far but no farther" version of the novelty argument.  Litman is right, there is no "magic" about novelty.  Novelty is important because it allows us to draw a line between violations of the original meaning that must be tolerated (at least in the short to medium run) for pragmatic reason and constitutional violations that can be redressed without creating enormous disruption.

It is entirely understandable that Litman would make this mistake.  Like most constitutional scholars (who reject originalism), Litman takes the Dynamic New Deal Settlement for granted.  Given this constitutional gestalt, novelty has no constitutional significance.  Indeed, the very idea of the Dynamic New Deal Settlement is that novel practices should be accommodated by adjustments in constitutional doctrine.  The alternative constitutional gestalt rejects this assumption.  The understanding expressed by Frozen New Deal Settlement is precisely that novelty is crucially important if and only if the novel assertion of government power is inconsistent with the original meaning of the constitutional text.  "Thus far but no farther" represents an originalist second best--a rule that aims preserves the constitutional status quo.  The normative justification for adhering to the second best is based on the normative case for originalism itself--a topic I have addressed in The Constraint Principle: Original Meaning and Constitutional Practice.

(See also this article [by me] that suggests something like the "thus far but no further" idea as a way of dealing with nonoriginalist precedent).

05/24/2017

Ilya Somin Responds to Rob Natelson on Federal Immigration Power
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Congress’ power to “define and punish” violations of “the Law of Nations” does not give it authority over immigration (responding to this essay by Rob Natelson).  From the introduction:

The law of nations argument is creative. But it ultimately fares no better than more conventional rationales for a general federal power over immigration.

Eighteenth century understandings of the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit. But the fact that international law recognized the exclusion of aliens as a power of sovereign states does not mean that a violation of a national law restricting migration is thereby a violation of the law of nations. Blackstone and the other eighteenth century writers cited by Natelson make the former claim, but not the latter.

And from later in the post:

A slightly different variant of the law of nations argument is that the Define and Punish Clause gives Congress the power to forbid any acts that a foreign nation has an international law obligation to prevent, such as the use of its territory to launch attacks against a neighbor.  [Editor's note:  in my view, this is a power that the clause grants.  Typically, with the exception of piracy, this is how eighteenth century commentators understood individual violations of the law of nations.]   But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them. For example, no serious commentator contends that Mexico’s failure to prevent migration by its citizens to the United States is a breach of its international law obligations, even if the migrants violate US immigration law.

05/23/2017

More from Calvin TerBeek on the History of Originalism
Michael Ramsey

At the Faculty Lounge, Calvin TerBeek (guest-blogging): The Transition to Self-Conscious Originalism, 1977-1985.  From the introduction:

On December 6, 1984, then-Judge Robert Bork gave a speech to the American Enterprise Institute (AEI) calling on conservatives to combat the theory emanating from the (liberal) legal academy. “Now we need theory,” Bork stated, “theory that relates the framers’ values to today’s world . . . It is necessary to establish the proposition that the framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.”

This seems curious in light of the fact that originalists, in telling their own intellectual history, point to Robert Bork's 1971 Indiana Law Journal article as proto-originalism and Rauol Berger's 1977 Government by Judiciary as the theoretical point of congealment around original intent orignalism, the pre-cursor to original public meaning originalism. If indeed constitutional conservatives had homed in on Berger, original intent, and originalism, why would Bork be calling for more "theory" on this very point seven years after Berger's book was published?

This answer is straightforward but has been overlooked: constitutional conservatives did not immediately congeal around Berger's formulation and begin to call themselves “originalists.” In addition to the anachronism of imputing labels and motives to historical actors they would have not have recognized or accepted, it is also another data point that political scientists, historians, and legal academics have ceded this important terrain to originalists. Furthermore, it is also a small window into how ideas gain traction. In short, while Berger's book was important, digging a bit deeper shows that original intent originalism was not inevitable, but one of a few existing narrative frames for constitutional conservatives before 1985 (and perhaps even after). 

For his previous post, see here (and commentary by co-blogger Chris Green here).

05/22/2017

Greg Weiner on Impeachment
Michael Ramsey

In the New York Times, Greg Weiner (Assumption College Political Science/Liberty Law Blog): Impeachment’s Political Heart. From the core of the argument:

Our tendency to read the impeachment power in an overly legalistic way, which is ratified by 230 years of excessive timidity about its use, obscures the political rather than juridical nature of the device. The Constitution applies presidential impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors.” The famous latter phrase does not refer to offenses like burglary on the one hand or loitering on the other. If it did, impeachment would be available for casual transgressions, which no framer of the Constitution intended.

The phrase dates in American constitutionalism to the founder George Mason’s proposal to make the president liable to impeachment not just for treason and bribery — the original formulation at the Constitutional Convention — but also for what he called “maladministration.” His fellow framer James Madison objected to the vagueness of the term, so Mason substituted “high Crimes and Misdemeanors.” That phrase, in turn, is traceable to the British legal commentator William Blackstone, a contemporary who was revered in colonial America, who applied it to the “mal-administration of high officers,” among other things.

Mason’s intent was clearly to delineate a political category, something Alexander Hamilton — who did not shrink in the defense of executive power — recognized in Federalist 65, which says that impeachment applied to offenses “of a nature which may with peculiar propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

And in conclusion, with respect to President Trump:

The evidence should be carefully gathered, a process in which Robert S. Mueller III, acting as special counsel, will help considerably. But Mr. Mueller is no substitute for Congress’s independent responsibilities of investigation and sober evaluation. The question is by what standards they should conduct this work, and that question provides an opportunity to correct the mistaken assumption according to which presidents can forfeit the public trust only by committing what the law recognizes as a crime. That is a poor bar for a mature republic to set. It is not the one a newborn republic established.

And that is why the idea that the conversation about impeachment is simply a political persecution of a man who is technically innocent of a literal crime not only jumps the investigatory gun. It misses the constitutional point.

(Thanks to Michael Perry for the pointer).

I think it inevitable that, if there is serious discussion of impeachment, a central issue in popular commentary will be the framers' understanding of "high Crimes and Misdemeanors."  This despite repeated claims during Justice Gorsuch's confirmation that originalism is impossible or incoherent, that originalism is a fringe approach, and/or that originalism leads to such manifestly bad outcomes that it should be denounced and rejected.

RELATED:  At Bloomberg View, Noah Feldman: Trump Should Worry: Comey Memo Describes a High Crime.  Despite the title, the article is mostly a fair-minded assessment of whether the President's alleged comments to Director Comey violated statutory law or the Constitution (concluding no): 

...[T]he federal obstruction statute, 18 U.S.C. Section 1503 ... punishes anyone who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”

On a close reading, this isn’t a great fit with the president asking the director of the Federal Bureau of Investigation if he can let a probe go because the target is “a good guy.” Remember, as a constitutional matter, the director of the FBI, like the attorney general and the rest of the machine of federal law enforcement, works for the president.

Although there has been a strong tradition of separating investigation and prosecution from the president -- a tradition grossly violated by Trump’s request -- it’s still just a tradition, not a legal requirement.

Thus, as a constitutional matter, Trump has the authority to propose ending an investigation. If he wanted to, Trump could just order the investigation to be brought to an end. He wouldn’t even have to exercise his pardon power, another way to put a preemptive stop to investigations. He could just direct his subordinates to cease.

To be sure, Comey probably would have resigned had this order been given. The point is that Trump could have given it, legally speaking.

Agreed.  But the Professor Feldman -- no originalist! -- goes on to say:

Impeachment is another matter. Using the presidential office to try to shut down the investigation of a senior executive official who was also a major player in the president’s campaign is an obvious and egregious abuse of power. It’s also a gross example of undermining the rule of law.

This act is exactly the kind that the Founding Fathers would have considered a “high crime.” [editor's note: in the essay, no evidence follows this assertion.]

First, no.  If anything, it is (as Professor Weiner argues) a high misdemeanor.  I'm not aware of any evidence that "crime" meant anything different in the eighteenth century than it does today -- an act contrary to law.  Since Professor Feldman spent the first two-thirds of his essay explaining (correctly in my view) that no crime could be found in these allegations, that should be an end of that.  The ambiguous word is "misdemeanors," which can mean "minor crimes" but also can mean (and could also mean in the eighteenth century) "misdeeds."  (Aside: why are nonorignalists such terrible originalists?)

Second: why does Professor Feldman care what "the Founding Fathers would have considered a 'high crime'"?   Only because he thinks (rightly) that originalist arguments carry force in this debate.

05/21/2017

William Thro: Originalism and School Finance Litigation
Michael Ramsey

William E. Thro (General Counsel, University of Kentucky) has posted Originalism and School Finance Litigation (335 Education Law Reporter 538 (2016)) on SSRN.  Here is the abstract:

In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner. Although the constitutional theories seem straightforward, the judicial opinions raise complex jurisdictional, merits, and remedial questions. Moreover, despite scores of cases and a significant amount of academic commentary, “there are few certainties in the school funding litigation process.”

This uncertainty is the result of judges and attorneys asking the wrong questions. Like all constitutional litigation, a challenge to a State’s school finance system involves three fundamental questions. First, who allegedly violates the Constitution? As Rosenkranz demonstrated, answering this question tells us whether the constitutional challenge is a facial challenge to legislative authority or simply an as-applied challenge to executive enforcement of a statute. This is the question about standing and standards of proof. Second, what does the Constitution prohibit or require? Answering this question tells us how the Constitution limits the sovereign discretion of the government and what those limits mean. This is the question about constitutional meaning. Third, why is the Constitution violated or not violated? Answering this question tells us what constitutional actors must do to correct the violation or why the constitutional actors have conformed to the constitutional norms. This is the question about remedy.

I addressed the first question in a previous work and I intend to address the third question in the future, but this Article addresses the second question — what does the State Constitution require or prohibit with respect to the financing of schools? In particular, I focus on how to determine what the State Constitutions mean for school finance. My thesis is that Originalism is the best way of enforcing the constitutional limits and constraining judicial power.

05/20/2017

University of Chicago Law Review Symposium: "Developing Best Practices for Legal Analysis"
Michael Ramsey

In the current issue of the University of Chicago Law Review, a symposium on Developing Best Practices for Legal Analysis.  Of particular originalist interest:  Lawrence B. Solum, Originalist Methodology (84 U. Chi. L. Rev. 269 (2017)).  Here is the introduction:

This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology.

Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. Part IV describes an originalist approach to constitutional construction. The Essay concludes with a short reflection on the future of originalist methodology.

(Also available in final form on SSRN here.  This is the final version of the draft noted on this blog here.)

Other contributions to the symposium include Curtis Bradley, Doing Gloss (discussing methodology of using historical practices to interpret the Constitution) and essays on textualist/formalist statutory interpretation by Frank Easterbrook (The Absence of Method in Statutory Interpretation) and Abbe Gluck (Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do).

05/19/2017

Benjamin Mendelson: The Geographic Scope of the Citizenship Clause
Michael Ramsey

Recently published in the Texas Law Review, Benjamin Wallace Mendelson: Courts Have Gone off the Map: The Geographic Scope of the Citizenship Clause (95 Tex. L. Rev. 873 (2017)).  From the introduction (footnotes omitted):

… In all of the debates surrounding birthright citizenship, it appears that a small, yet critical, piece of the Citizenship Clause has been overlooked. The Clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Few courts, however, have paused to consider what the phrase “in the United States” means because it seems so obvious. At first glance, everyone knows what that phrase must mean. We all looked up at the map of America from our desks in elementary school, the teacher pointed to the states, we memorized them, we took our exams, and that was the end of it.

Recently, however, some courts have had to consider the geographical scope of the phrase “in the United States.” They have ruled that an American military base in Germany, American Samoa, and the Philippines at the time it was a U.S. territory are not “in the United States” for the purposes of the Fourteenth Amendment. Despite the fact that where the United States ends and another sovereign begins is a serious constitutional issue and has obvious implications for the American immigration system, the Supreme Court this past term denied certiorari on this question.

This Note will argue that, from an originalist, historical perspective, all of the recent federal appellate cases interpreting the phrase “in the United States” for purposes of the Fourteenth Amendment have been incorrectly decided, and that if one wishes to stay true to the framers’ intent, the correct interpretation of that phrase is “in the dominion of the United States.” In other words, the framers of the Fourteenth Amendment would have considered anywhere that the United States exercises sovereignty to be “in the United States,” not just the fifty states and the District of Columbia. This would include U.S. territories, military bases, embassies, and other similarly situated locations.

Part I of this Note will examine the English common law idea of citizenship and show how that definition of citizenship crossed the Atlantic. Part II will discuss early interpretations of the Fourteenth Amendment and argue that it codified the citizenship ideas of the common law, specifically the geographical scope of birthright citizenship. It will further assert that early Supreme Court decisions recognized this in dicta. Finally, Part III will analyze recent federal appellate decisions that have interpreted the phrase “in the United States” and argue that those cases have been incorrectly decided from an originalist, historical perspective.

An interesting student note.  As readers of this blog know, I completely agree about American Samoa (see here).  I'm less sure about U.S. military bases abroad -- but the Note makes a good case that I think has not been made before.

05/18/2017

John Manning and Mitchell Berman on Scalia's 'A Matter of Interpretation'
Michael Ramsey

Recently published in the Michigan Law Review, two new reviews of Justice Scalia's classic book "A Matter of Interpretation." From John Manning (Harvard): Justice Scalia and the Idea of Judicial Restraint (115 Mich. L. Rev. 747 (2017)).  From the introduction (footnotes omitted):

When one thinks about Justice Antonin Scalia’s legacy, it is tempting to focus on his role in promoting statutory textualism and constitutional originalism. He pressed these related approaches with surprising success in a legal culture that had not taken either idea all that seriously before his arrival on the Court. He accomplished this feat, in part, by developing the affirmative claim that taking the text seriously best respects the democratic process. For him, if a lawmaking body goes to the trouble of reducing its policies to writing through a carefully prescribed process, then common sense dictates that a faithful interpreter must ascertain, as accurately as possible, the meaning of the words the lawmaker has chosen.

Perhaps no less important, however, was his negative claim about appropriate limits on judicial power in our system of separated powers. Every theory of interpretation entails a theory of lawmaking and of adjudication. Justice Scalia’s was no exception. Much of his theory of adjudication built on what he took to be a constitutionally warranted view of judicial restraint. In the Tanner Lectures he published as part of A Matter of Interpretation: Federal Courts and the Law, his defense of textualism and originalism rested heavily on a critique of the “common law” mindset that he saw federal judges bringing to statutory and constitutional interpretation (pp. 3–14, 16–18, 21, 25, 28, 36, 38–39, 45–46). In this account, as in many of his most arresting opinions,7 Justice Scalia exploited an apparent cultural suspicion of judicial discretion—especially the kind that judges exercised sub rosa, as in the guise of legislative intent or living constitutionalism. If our system of government makes the democratically accountable branches primarily responsible for lawmaking, he did not want the federal judiciary to make an end run around the democratic process by exercising common law discretion “to make the law” (pp. 6, 10).

And from Mitchell Berman (Pennsylvania): The Tragedy of Justice Scalia (115 Mich. L. Rev. 783 (2017)).  From the introduction (footnotes omitted):

Given the magnitude of Scalia’s renown and the intensity of the passions he has engendered, it would be folly to advance in this space any bold new thesis on his jurisprudence or judicial legacy. My ambitions, accordingly, are less grand. They are to offer an account of his central jurisprudential claims, the arguments he marshaled, and the difficulties they encountered, in a fashion that might enable partisans on both sides of today’s legal, cultural, and political divides to see a little more clearly at least some of what their opponents see—the other side of Scalia’s legacy. I will try to accomplish that task by concentrating on his Tanner Lectures delivered at Princeton two decades ago and published, complete with scholarly comments and his response, as A Matter of Interpretation: Federal Courts and the Law. You might say that my modest goal for this twenty-year retrospective on Scalia’s best-known and most important book is to render Justice Scalia two-dimensional.

Because I will try to make a case both for what was truly great and for what was profoundly flawed about Scalia the jurist, the account that follows depicts him as a tragic figure. That is not a novel characterization. But it remains disappointingly marginal. Too often, Scalia’s critics demonize him as a simple villain, while his acolytes glorify him as a paladin without warts. These are disturbingly partial visions. Commentators who remain blind to the truths that others see vividly will never adequately understand the complex legacy of this complex man. But that is not all. Although tragedies and tragic figures abound in life, tragedy’s natural home is in the theater. Tragedies are performed for an audience. And the power, value, and meaning of tragedy “lies in its capacity to elicit the audience’s response.” Now, precisely how tragedy should affect an audience, or precisely what the audience is supposed to learn, is controversial. If theorists of tragedy agree on anything, it’s that, while a concept of tragedy has been vital in Western culture since ancient Greece, its content, assumed functions, and associated norms, have varied across time and place.8 Still, there are lessons we can learn—not only about him, but also about our own condition—by understanding Scalia in tragic terms. Or so I hope to show.

05/17/2017

Defining Officers of the United States
Mike Rappaport

In Jennifer Mascott’s new paper, Who are the Officers of the United States?, she argues that the definition of an officer was much broader than the Buckley standard of significant authority pursuant to the laws of the United States and that it included positions with ministerial duties.  I think the evidence that the paper discusses supports this conclusion.

The common definition of office defined it broadly, as Chief Justice Marshall did in 1815, when he wrote it was “ ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.  If employed on the part of the United States, he is an officer of the United States.”  This broad interpretation accorded with many statements, including those by George Mason and Gouverneur Morris that Mascott mentions (and that are referenced in a reader’s comment to my prior post).  Mascott also notes Thomas Bailey’s dictionary included more than 500 references to the term “officer” – and those references to officers “encompassed numerous record-keepers, assistants, and other officials with duties of a menial nature.”

While the fact that the definition is broader than the one Buckley employs is important, the question remains how one draws the line between an officer and a non-officer.  Although today we call the latter category an employee, Mascott notes that the Framers’ generation would not have used the term “employee.”  When they spoke of non-officers, they tended to refer to “servants or attendants.”

Mascott proposes a definition of an officer as one who enforces a statutory duty.  Even assuming this is the correct standard, this standard still requires more precision, because it is unclear what enforcement of a statutory duty is.  One might define that standard broadly to include servants on the theory that they helped implement an agency’s statutory duty and mission.  After all, if they did not, hiring them at all would presumably not be authorized.  How then to draw the line in a way that is faithful to the concepts of the Framers’ generation?

One possibility is that the Framers had a concept of distinguishing between significant and minimal authority, like Buckley’s, but that they drew the line to include as officers many more people who had ministerial duties.  That is certainly a possibility.  Under that view, we would need to know more about how to draw the line, but the positions they included and excluded from the officer category would provide helpful guidance.  Moreover, under that view, modern government workers, such as secretaries and assistants, might be excluded from being officers as not sufficiently exercising authority.

But it is not clear that is the correct way to understand the Framers’ world.  Perhaps they distinguished servants based on social understandings at the time that drew a distinction between a servant and other jobs (such as those filled by gentlemen plus other people lower in the social hierarchy) that informed the concept of an officer.  That social understanding would then be relevant to the constitutional meaning of an officer.

Under this possibility, the hardest part would be applying it to the modern day.  If the social distinction between servants and others no longer apply in our world, then it might be hard to apply it to arguably new positions such as secretaries and assistants, while remaining faithful to the concepts of the Framers world.

Rob Natelson on Congress' Immigration Power
Michael Ramsey

In The Hill, Rob Natelson (Independence Institute): The Constitution does indeed permit immigration caps as part of ‘the law of nations’.  From the introduction:

Some pro-immigration activists question whether the federal government has any constitutional power over immigration. “Where,” they ask, “is the word ‘immigration’ among the powers the Constitution grants to Congress?”

This question has embarrassed many who favor restrictions. They have cast around for answers, but by and large, their answers have been unpersuasive. For example, they have argued the Constitution granted implied power to restrict immigration because such power is core to sovereignty. They also claim immigration is within Congress’s authority to govern naturalization and regulate commerce.

...

As I point out in my book, The Original Constitution, both sides are missing something. They are missing the clause in the Constitution giving Congress “Power … To define and punish … Offenses against the Law of Nations.”

“The law of nations” was the usual 18th-century term for international law. It included standards of conduct among nations. But it also encompassed some rules within national boundaries. A power to “define and punish” an “offense against the law of nations” included protecting foreign ambassadors against interference, protecting safe-conduct passes — and restricting immigration.

Why have so many writers — including some constitutional law professors — missed this? One reason is that 18th-century legal terms and categories were different from those we use today. For example, a modern law book might feature a heading for “immigration law.” But in William Blackstone’s "Commentaries," the English book that served as America’s most popular legal treatise, there was no such heading. 

Instead, Blackstone addressed the topic in his chapter on the British king’s prerogative powers. When discussing safe-conduct passes, Blackstone observed that without them “by the law of nations no member of one society has a right to intrude into another ... [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient.” ....

05/16/2017

Evan Bernick: Is Judicial Deference to Agency Fact-Finding Unlawful?
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Is Judicial Deference to Agency Fact-Finding Unlawful? (Georgetown Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

Judicial deference to fact-finding by federal administrative agencies took root and developed alongside the modern administrative state. This fact deference is of great consequence to people who are charged with regulatory violations by agencies. Such violations are often initially adjudicated, not in federal courts by Article III judges, but in administrative proceedings by employees of the agency that is seeking to impose fines or other penalties. While review can later be sought in federal court, judges broadly defer to the factual findings made by agency adjudicators in the course of administrative proceedings—and those findings can be determinative of whether a regulatory violation has taken place. Although fact deference was initially constructed by the Supreme Court, it now has the express command of the Administrative Procedure Act of 1946 (APA) behind it. Section 706 (2)(E) of the APA provides that fact-finding in formal administrative adjudication may be overturned by reviewing courts only if an agency’s factual determinations are found to be “unsupported by substantial evidence."

Yet, although longstanding administrative law doctrines that command judges to defer to agency interpretations of statutes and regulations have received intense academic and judicial scrutiny in recent years, fact deference has received comparatively little attention. This Article provides an overview of the origins, development, and present state of fact deference and subjects fact deference to a thorough constitutional critique, focusing on Article III and the Fifth Amendment's Due Process of Law Clause. It concludes that in cases involving administrative deprivations of core private rights to "life, liberty, or property," fact deference violates Article III's vesting of "[t]he judicial power" in the federal courts; constitutes an abdication of the duty of independent judgment that Article III imposes upon federal judges; and violates the Fifth Amendment by denying litigants “due process of law,” which requires (1) judicial proceedings in an Article III court prior to any individualized deprivation of “life, liberty, or property”; and (2) fact-finding by independent, impartial fact-finders. It then proposes an alternative: de novo determination of questions of fact in Article III courts prior to any binding judgment that deprives people of core private rights.

05/15/2017

Larry Solum's Legal Theory Lexicon: 'Living Constitutionalism'
Michael Ramsey

At Legal Theory Blog, Larry Solum has a new entry in his Legal Theory Lexicon: Living Constitutionalism.  Here is the introduction:

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historical rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism.  As always, the Lexicon provides a short introduction to a concept in legal theory for law students.

And from the section entitled "Living Constitutionalism versus Originalism":

Like other theoretical terms, "living constitutionalism" and "originalism" have meanings that are disputed.  This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, where as other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism.  The most prominent example of compatibilism is Jack Balkin's theory, which he explicated and defended in his book, Living Originalism.

The following definitions of "living constitutionalism" and "originalism" illustrate the possibility of compatibilism:

Originalism:  A constitutional theory is "originalist" if it affirms (1) the fixation thesis (the linguistic meaning of the constitutional text is fixed at the time each provision is framed and ratified), and (2) the constraint principle (the fixed original meaning should constraint constitutional practice).

Living Constitutionalism: A constitutional theory is "living constitutionalist" if it affirms that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

Nonoriginalism: A constitutional theory is "nonoriginalist" if it denies either the fixation thesis or the constraint principle.

Given these definitions, "living originalism" is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine.  Such underdetermination may occur if the constitution contains provisions that are vague or open textured.  Such provisions could be said to create "construction zones," areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules.  Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.

Some originalists may reject the idea of compatibilism.  For example, some originalists may embrace the proposition that the constitutional text is fully determinate and hence that embracing the constraint principle entails that constitutional doctrine does not change.  It is important to remember that this kind of determinacy does not entail the further conclusion that constitutional applications are fixed.  Thus, one can believe that the original meaning of the Second Amendment creates a rule that forbids government regulations that ban the possession of weapons that can be carried by a person, but reject the idea that the category of weapons is limited to weapons that existed in 1791 when the Second Amendment was adopted.

If you accept the definitions offered above, then compatibilism and hence "living originalism' is at least a conceptual possibility.

As Professor Solum would say, "Highly Recommended."

05/14/2017

Robert Natelson: Why the Constitution's 'Convention for Proposing Amendments' Is a Convention of the States
Michael Ramsey

Robert G. Natelson (The Independence Institute) has posted Why the Constitution's 'Convention for Proposing Amendments' Is a Convention of the States on SSRN.  Here is the abstract:

A prominent feature of public discussion about whether the state legislatures should require Congress to call a “convention for proposing amendments” are claims that the protocols and composition of such a convention are unknown. These claims are incorrect.

This Article presents the evidence demonstrating that the Supreme Court spoke accurately when it classified an amendments convention as “a convention of the states”—a kind of gathering that has been a frequent feature in American history, and whose protocols and composition are thoroughly documented. The Article further concludes that the convention of states formula is the only model for an amendments convention likely to win public acceptance.

05/13/2017

Randall Kelso: A True Originalist Theory of Constitutional Interpretation Would Adopt the View of a Living Constitution
Michael Ramsey

R. Randall Kelso (South Texas College of Law Houston) has posted Pace Scalia, Thomas, and Gorsuch, a True Originalist Theory of Constitutional Interpretation Would Adopt the View of a Living Constitution, Not a Static or Fixed Constitution on SSRN.  Here is the abstract:

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers and ratifiers’ intent or action. 

Among originalists, there is a debate whether the framers and ratifiers’ actual “original subjective intent” should govern (intent) or whether one should instead look to the “original meaning”of the words adopted by the framers and ratifiers (action). In most cases, the result would be the same under either approach. For this reason, as Justice Scalia once acknowledged, “[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather between original meaning (whether derived from Framers’ intent or not) and current meaning.” This is the issue on whether to adopt a “static” or “living” model for constitutional interpretation.

What is often unappreciated in addressing this question is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living Constitution. Under such a model, later legislative, executive, or social practice, or judicial precedents, can change the meaning of a constitutional provision. Thus, while it has been noted that standard “originalist” supporters share the premise that the original meaning of constitutional text is fixed at the time each provision is framed and ratified, interpretation according to any version of “originalism” actually does not commit the interpreter to a “static” or “fixed” interpretation of the Constitution. Instead, a “true originalist” form of interpretation can incorporate the principle that the provision was capable of evolution over time.

Part II of this article summarizes the four main judicial decisionmaking styles which exist regarding constitutional interpretation. Part III then summarizes the argument that the overwhelming historical evidence is the framers and ratifiers believed in a living Constitution model of interpretation. Without historical support for the standard version of originalism, which adopts a “fixed” or “static” model of interpretation, that leaves supporters of the standard version with only the argument that such an approach is a better approach to interpretation, even if it was not shared by the framers and ratifiers. Part IV of this article discusses the arguments why such standard originalism should not be preferred on normative grounds. Part V of this article provides a brief conclusion. That conclusion notes that the proper approach to constitutional interpretation on both original intent and normative grounds is to interpret the Constitution in the manner that the framers and ratifiers would expect it to be interpreted today. That approach is best reflected on the modern Supreme Court in the interpretation approach of Justice Kennedy, and former Justices O’Connor and Souter. Such an approach represents “True Originalist” interpretation.

05/12/2017

TerBeek, Theories, Movements, and Direction of Fit
Chris Green

Calvin TerBeek's post on the supposed origins of originalism, which, as Mike Ramsey noted yesterday, is "interesting, challenging, and scholarly," included one fascinating side comment that I thought deserved unpacking. After referring to Attorney General Meese's July 9, 1985 speech as the point at which, TerBeek says, "self-conscious originalism [was] unveiled as a theory/movement," TerBeek links to a paper by Stephen Teles on the history of Reagan's Justice Department and notes that "the two strands are nearly impossible to separate."

How does one distinguish a theory from a movement? Philosophers' distinction between world-to-mind and mind-to-world directions of fit can help here.

Building on Elizabeth Anscome, John Searle offers this example. Imagine a man sent to the grocery story with a list of items to buy who, as it happens, is being followed by a spy writing down the shopper's purchases.  As the shopper goes around the store finding the items, the spy eventually accumulates a list of items identical to the grocery list. Even though both lists contain the same items and both match the shopping cart, the two lists serve very different purposes and have very different criteria for success.

Suppose the shopper, relatively inexperienced in the ways of yogurt, does something that I, alas, have done: he gets vanilla yogurt instead of plain yogurt, which was on the list. And imagine that the similarly-inexperienced spy makes the same mistake, writing down "plain yogurt" on his list instead of "vanilla yogurt." The two lists are now the same, but the spy's list is flawed in a way the shopper's list is not. If the spy gets close at one point and sees that the yogurt in the shopper's cart is actually vanilla, he can cross out "plain" on his list and write "vanilla." But if the shopper looks down at his cart and notices that he has gotten the wrong kind of yogurt, he cannot simply edit his shopping list to match the cart.  Why not? Because a shopping list has a "world to mind" direction of fit: the point is to make the world--the shopping cart, and eventually a refrigerator--match the desires of whoever composed the list. But the spy's report has a "mind to world" direction of fit: the point is to accurately understand what the man is buying.

A successful theory has a mind-to-world direction of fit: the point is to accurately capture or describe some subject matter. But a successful political movement has a world-to-mind direction of fit: the point is to change culture, political decisionmaking, or the like to match one's desires. Unsuccessful constitutional theories fail to match the actual requirements of the Constitution; unsuccessful political movements fail to transform the political-cultural environment the way its members had hoped. A political movement is like a shopping list; a constitutional theory, as I see it, is like a description of reality.  There is a difference, that is, between originalism failing to capture the imagination of legal elites--the failure of the movement--and originalism failing to capture the actual Constitution--the failure of the theory. If the theory fails (for instance, if the theory fails to match what Madison thought, and the theory also makes Madison's thinking critical, or if the theory blurs sense and reference, or whatever), then the theory can be revised to match the reality in order to survive as a viable theory. The point is for the theory to match reality. Not so for political movements: if it turns out that the movement has not produced its intended effect, the movement cannot simply aim at something else and then declare itself a success; the whole point is to get the world to be a certain way.

Perhaps TerBeek views the success conditions of constitutional theory--or the aims of originalists--differently than I do.  I would evaluate a constitutional theory based on whether it matches our constitutional truthmaker, and he might not (or might not understand originalists to be attempting to do so). That difference may contribute to TerBeek's difficulty in distinguishing originalism-the-theory from originalism-the-movement. But difference in direction of fit is one simple way to distinguish them.

 

Stanford Conference on "A Big Fix: Should We Amend Our Constitution?"
Michael Ramsey

Today and tomorrow I will be attending what looks to be a very interesting conference at Stanford Law School, hosted by Professor Michael McConnell's Constitutional Law Center.  It's called "A Big Fix: Should We Amend Our Constitution?" -- and it features a series of speakers proposing specific amendments, with commentary.

Here is mine:

The Executive Oversight Amendment [or, let's overrule Chadha]

Sec. 1. Congress may, by majority vote of each House, disapprove of any rule, policy or course of action adopted by any executive or administrative officer or agency of the United States, if such rule, policy or course of action purports to be done pursuant to delegated authority from Congress and affects the rights or duties of persons within the United States.  Upon a vote of disapproval, the rule, policy or course of action shall be discontinued and cease to have effect.

Sec. 2. The disapproval provided in Section 1 shall not be presented to the President for signature or veto [and shall not be subject to any procedure in the Congress that has the effect of requiring a supermajority vote].

Sec. 3  The disapproval provided in Section 1 shall not extend to any matters of personnel nor to any rule, policy or course of action solely affecting the internal operations of the executive branch.

Discussion:

Chadha was right, but Chadha was wrong.  In INS v. Chadha, the Supreme Court famously (and in my view rightly) held that Article I, Section 7 of the Constitution precludes Congress from “vetoing” presidential actions by a method other than passing a bill through bicameralism and presentment.  In the founding era, checking the president by congressional “veto” likely was not needed to protect separation of powers.  But it is needed now.  The exponential growth of the federal government, the increased speed and complexity of modern events, and the increased political polarization in Congress have created a situation in which Congress inevitably delegates broad authority to executive and administrative agencies and lacks adequate means for oversight.  The result is twofold: expansion of executive power relative to that of Congress, and the commitment of lawmaking authority to unelected administrative bodies.   These phenomena have been widely remarked, both by those who applaud them and those who condemn them.  [E.g., Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2013); F. H. Buckley, The Once and Future King: The Rise of Crown Government in America (2014); Philip Hamburger, Is Administrative Law Unlawful? (2014); Josh Blackman, Gridlock, 130 Harv. L. Rev. 241 (2016).]

The proposed amendment does not try to cut back on delegation or executive/administrative lawmaking; it only seeks to provide a check by empowering Congress.  As matters currently stand, Congress’ oversight of executive/administrative lawmaking is weak because any correction passed by Congress must confront a presidential veto.  A veto is likely because the president presumably supports the agency action (especially in the case of executive agencies, but likely also in the case of quasi-independent agencies).  Veto overrides are increasingly difficult due to political polarization in Congress.  Further, Congress’ other tool for managing agencies – control of their budgets – seems increasingly problematic due to omnibus budgeting and increased politicization of the budget process.  Whether or not one ultimately supports executive/administrative lawmaking, it should a concern rooted in separation of powers that this lawmaking is taking place largely unchecked.

While other remedies have been proposed, they may appear either too weak or too strong.  For example, one suggestion is to scale back courts’ “Chevron” deference to agency interpretations of authorizing statutes. [See H.R.5, Regulatory Accountability Act of 2017, passed by House of Representatives 01/11/2017.] However, this seems inadequate on several grounds.  First, because authorizing statutes are often necessarily open-ended, the problem is frequently not so much agencies exceeding their authority, but agencies acting unchecked within their authority.  Chevron reform does not address this problem.  Moreover, at best Chevron reform only checks one partially unaccountable actor (agencies) through the intervention of another largely unaccountable actor (the courts).  Another remedy might be to limit congressional delegation – for example, by requiring “major” rulemaking, such as rules having a specified economic impact, to be approved by Congress.  [See H.R.26, Regulations from the Executive in Need of Scrutiny Act of 2017 [REINS Act], introduced 01/03/2017.]  This suggestion, however, may be too strong a remedy for those who think modern circumstances require a substantial degree of executive/administrative speed and flexibility.

An objection to the amendment may be that it will be meaningful only when both houses of Congress are controlled by the opposition party.  I think this is not a substantial objection.  First, this circumstance is not uncommon (it was true for four of the last 16 years), and in this circumstance the priories of the President and Congress are most likely to diverge sharply.  Thus empowering congressional oversight is especially important.  Second, even when the President’s party controls one house of Congress, the disapproval power will make Congress more accountable.  Where a threatened presidential veto would block Congress, it is easy for Congress to deflect criticism by pointing to the practical impossibility of override.  With the veto removed, it would be clear that only obstruction in Congress is preventing the disapproval of unpopular presidential or administrative actions.  Thus responsibility for failure to block presidential/administrative policies would be placed clearly on the president’s party in Congress, resulting (in the case of unpopular policies) in either strong pressure to vote against the president or the ability to appeal promptly to the electorate in congressional elections.

Like most intermediate proposals, it likely does not go far enough for many people and goes too far for others.

05/11/2017

Mark Pulliam on Originalism, Restraint and Law Professors
Michael Ramsey

At American Greatness, Mark Pulliam, Plain Talk about Law School Rot.  After some general criticisms of legal academics (beginning "The legal academy is a strange place"), some specific criticisms of originalist legal academics:

[F]ew voices in today’s legal academy advocate judicial restraint, even among so-called “originalists.” Although it still holds sway among conservative political scientists such as Georgetown’s George W. Carey (author of In Defense of the Constitution), the once-influential Bork/Graglia position has seemingly—and inexplicably—fallen out of favor in the law schools. I am old enough to remember when constitutional theory could be divided into two camps: originalism (restraint) and non-originalism (activism). Restraint is no longer “cool”; it leaves power in the hands of the detested proles.

Now, in Baskin-Robbins fashion, there are at least 31 different flavors of originalism, some of which—like the libertarian theory of “judicial engagement”—would grant to courts more discretion to review laws than the most extravagant “living Constitution” theories. Federalist Society co-founder and Northwestern University law professor Steven Calabresi has apparently had a mid-life libertarian epiphany and now—purporting to apply originalist techniques—concludes that the Constitution protects same-sex marriage. Creative “originalism” can also be stretched to reach free-market outcomes Ayn Rand would applaud. George Mason University law school professor Michael Greve has archly referred to libertarian scholars who presume to “read the Constitution as a municipal code for Dagny Taggart’s valley.”

It is no coincidence that some self-styled “originalists,” such as libertarian Georgetown University law professor Randy Barnett, dismiss Bork and Graglia as “old school” proponents of a view that “used to be the dominant strain in conservative circles,” in “years past.” Barnett crows that Bork and Graglia used to “rule the roost,” but that “Times have changed.” Is judicial restraint really passé? Barnett contends that “as originalism has assumed an increasingly powerful hold on the legal culture … one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism.” (Barnett has gone so far as to claim that appeals for judicial restraint are a form of conservative “living constitutionalism,” inverting the very terminology that launched the originalism debate!)

The “originalism” Barnett speaks of is not the originalism espoused by Bork or Attorney General Ed Meese. Barnett has in mind a fashionable new variant of originalism that would empower judges to evaluate the necessity and efficacy of laws to determine if they infringe “unenumerated” (that is, unwritten) rights purportedly lurking in the Constitution. Any sound “originalist” conception of the Constitution must accept that judges should confine themselves to enforcing the express provisions of the Constitution. No matter how exotic the theoretical justification, judicial review does not authorize courts to divine invisible rights or serve as Delphic Oracles pronouncing judgment on the wisdom of laws.

05/10/2017

Renegotiating NAFTA: A Response to Professor Ramsey
Ryan Scoville

[Editor's note:  For this guest post we welcome Professor Ryan Scoville of the Marquette University Law School.]

Recently on Lawfare I argued that, from an originalist perspective, the President probably lacks power to renegotiate NAFTA without specific, prior approval from the Senate. The basis for this argument is that the Framers appear to have understood treaty negotiators as “public Ministers” and “Officers of the United States” for purposes of the Appointments Clause, and thus as individuals whose appointment requires the Senate’s advice and consent. In taking this position, I acknowledged the contemporary practice whereby the Senate endorses the selection of a handful of top officials at the Office of the U.S. Trade Representative, and I suggested that this practice helps to honor the original understanding insofar as it implies Senate consent to the initiation of any negotiations the appointees might pursue. But I also argued that the practice is materially different from the original model, which was for the President to obtain Senate approval in designating negotiators on the occasion of each and every separate negotiation. For this reason, I suggested that the contemporary approach is contrary to the original understanding of the Appointments Clause.

Last week Professor Ramsey took issue with part of this analysis. While agreeing that an official negotiator of a trade agreement would qualify as a public minister, he disagreed that fresh advice and consent is necessary on the eve of each new negotiation. As he put it, “Nothing in the Constitution says that offices cannot be created with general negotiation powers (as opposed to only specific ones).” I appreciate his response and admit that his argument is sensible. But I also think that Professor Ramsey dismisses my position too quickly. Consider a few points:

First, Professor Ramsey’s interpretation seems weaker in view of historical constraints on states’ discretion to ratify agreements. A number of leading writers on the law of nations (Grotius, Martens, and Bynkershoek, among others) held that signature triggers an obligation to ratify as long as the negotiator had followed his instructions in drafting the text. This principle operated in considerable tension with Article II’s provision for Senate advice and consent in the making of treaties, which is significant only if discretionary. But there is evidence that early U.S. officials were familiar with and at times invoked the principle anyway. If that evidence reflects a broader Founding-era acknowledgement of the obligation to ratify—either as a binding rule of international law or as a moral precept by which to satisfy the expectations of European governments—then it is at least plausible that the Founders perceived meaningful Senate involvement at the front end of the adoption process as the best opportunity for Congress to shape U.S. treaty obligations. It is precisely that involvement, however, that the conferral of general negotiating authority renders less frequent. Is it possible that the Founders would have nevertheless accepted such a practice? Certainly. But doing so would have further marginalized a Senate that already faced considerable international constraints on its discretion to advise and consent to ratification.

Second, Professor Ramsey’s position would seem to disserve the original purposes of the Appointments Clause. As I read his argument, a single act of advice and consent could suffice regardless of the number, content, importance, and foreseeability of the trade agreements the appointee might negotiate. As I read his argument, a single appointment could also suffice regardless of the succession of foreign governments with which the appointee negotiates and the domestic and international implications of those negotiations. But this would make it much harder for the Senate to vet nominees for competency. It would also complicate the task of policing for conflicts of interest. And it would limit opportunities for public debate over important questions of foreign policy.

Finally, it bears emphasis that the current model is not the original model. In the late eighteenth century, as Professor Ramsey seems to concede, the President did not nominate and the Senate did not approve the appointment of any individual to exercise roving, general authority to negotiate treaties. Instead, the Senate approved the designation of each negotiator shortly prior to each new negotiation. This approach enabled Senators to advise and consent to the appointments in an informed manner, with a specific negotiation in mind. True, the Constitution does not specifically say that such case-by-case approval is necessary, and the mere existence of a pattern of early practice does not necessarily mean that the Founders understood it as constitutionally required. But this practice was not merely occasional. It was the custom throughout the administrations of Washington, Adams, and Jefferson, and it manifested in relation to over two-dozen international negotiations. It is hardly a stretch to imagine that the practice would have acquired a certain normative gravity in these circumstances, such that departures would have been viewed with suspicion and even opposed on constitutional grounds.

Calvin TerBeek: Was Originalism Born in Sin?
Michael Ramsey

At The Faculty Lounge, Calvin TerBeek (guest blogging): Was Originalism Born in Sin?  From the introduction:

The standard account of the origins of originalism, especially those set forth in the law reviews, is that Robert Bork's 1971 Indiana Law Journal article building on neutral principles was proto-originalism, the beginnings of what we now know as original public meaning originalism. (Political scientists appear to have accepted this narrative). This account is not confined to academic settings—National Review’s Matthew Franck translated Bork’s article for a later generation of conservatives in an article titled, “The Original Originalist.” But the story appears to be more complex than generally supposed. While Bork invoked "framer's intent" and privileged reliance on "text and history," these analytical constructs had already taken hold on the Right as a way to critique Brown and as a shorthand to attack Warren Court "sociological" jurisprudence. 

And from later in the post:

But Bork’s language, though academic in tone, would have rung familiar to conservative ears. In 1960, Senator Barry Goldwater's ghost-written The Conscience of a Conservative talked about constitutional rights claims in a similar manner. “For the federal constitution,” Goldwater intoned, “does not require the States to maintain racially mixed schools.” Through L. Brent Bozell, a National Review editor and de facto author of this popular political tract, Goldwater sought to demonstrate this with repeated invocations of the “intentions of the founding fathers” and the “intentions of the Fourteenth Amendment’s authors." Bork, who served as an academic adviser, along with Milton Friedman, to the Goldwater campaign almost certainly would have been familiar with this line of reasoning.

Building on Conscience, Bozell set out to demonstrate to NR-style conservatives the historical mistake the Court made in Brown in The Warren Revolution (1966). A relatively quiet polemic, The Warren Revolution’s introduction is sophisticated and at times scholarly in tone. Bozell’s thesis was straightforward: until 1954, the year Brown was handed down, the “fluid” provisions of the Constitution, such as the Fourteenth Amendment’s equal protection clause, had been decided on the basis of interbranch dialogue. No one department of government dictated the meaning of these open-ended provisions; instead, through “organic processes” constitutional politics were settled collectively. (Impressively, the idea of interbranch dialogue in constructing constitutional meaning prefigures well-known legal scholarship from the 1990s).

However, the Warren Court, “with the encouragement of the country’s intellectual establishment,” had instituted a form of judicial supremacy. Brown was the epitome of this troubling trend. Prior to 1954, the “race problem” was, as “the original framers in effect decided,” left to be solved through interbranch coordination. No more. The Brown decision, relying on “psychological and sociological treatises” which were mere “opinion rather than fact” ignored “the views of the Constitution’s framers." Mocking the Court’s reasoning—the Fourteenth Amendment’s framers “after all, had not read Freud”—Bozell reasoned that, “in 1954, thanks to the sociologists and the psychologists” the Court had taken upon itself write a “concept” of equality “into the Constitution.” Fond of italics, Bozell summed up his argument thusly: “The States that ratified the Fourteenth Amendment, equally with the Congress that proposed it, had no intention of outlawing separate schools” (all italics are Bozell's).

...

An interesting, challenging and scholarly post.

05/09/2017

BJALS Symposium on Justice Scalia
Michael Ramsey

In the latest issue of the British Journal of American Legal Studies, a symposium on Justice Scalia.  Here is the table of contents:

SPECIAL ISSUE: IN MEMORY OF JUSTICE ANTONIN SCALIA (1936-2016)

Introduction, by Jess Bravin

Justices as “Sacred Symbols”: Antonin Scalia and the Cultural Life of the Law, by Brian Christopher Jones & Austin Sarat

One of My Favorite Judges: Constitutional Interpretation, Democracy and Antonin Scalia, by James Allan

Justice Scalia: Tenured Fox in the Democratic Hen-House?, by Jane Marriott

The Sexual Orientation Cases, by Ian Loveland

Scalia’s Legacy: Originalism and Change in the Law of Standing, by James E. Pfander

Missed Opportunities, Good Intentions: The Takings Decisions of Justice Antonin Scalia, by Richard A. Epstein

Postscript: Textualism and Judicial Authority, by Jeremy Waldron

(Thanks to Brian Christopher Jones for the pointer.  I previously noted James Allan's contribution here.)

Addendum:  The British Journal of American Legal Studies (BJALS) is a peer-reviewed, faculty-managed journal which may not be familiar to U.S. audiences but has outstanding content.  Seth Barrett Tillman (well-known to readers of this blog) is one of the associate editors.

 

05/08/2017

Frances Rooney: The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination
Michael Ramsey

M. Frances Rooney (Georgetown University Law Center, J.D. '17) has posted The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination (Georgetown Journal of Law & Public Policy, forthcoming 2017) on SSRN.  Here is the abstract:

The Privileges or Immunities Clause of the Fourteenth Amendment provides a constitutional right not to be discriminated against on the basis of gender. Original public meaning originalism provides the structure to find that the clause includes a right to practice a lawful profession that extends to all citizens, irrespective of gender. The clause is a guarantee of rights to every “citizen of the United States,” not every male citizen; because of that, the clause is a positive grant of rights to all citizens in the United States. 

The central thesis of this Note is that women who are citizens of the United States have rights guaranteed by the Privileges or Immunities Clause, specifically the right to practice a profession. This right cannot be denied on the basis of gender, because adult women have the same capacity as men to practice law. Had this been recognized in 1873, the time The Slaughter-House Cases and Bradwell v. Illinois were decided, and had the erroneous interpretation of the clause in Slaughter-House not prevailed, Bradwell would have recognized this right. Given the contemporary knowledge of the capacities of women and an originalist approach to constitutional interpretation and construction, the decision in Bradwell should be overruled. Taking this step would lead to the development of an originalist gender equality jurisprudence.

05/07/2017

Gerard Magliocca: Revisiting Madison's Notes on the Constitutional Convention
Michael Ramsey

Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted A Faction of One: Revisiting Madison's Notes on the Constitutional Convention (Law and Social Inquiry, forthcoming) on SSRN.  Here is the abstract:

This Essay on Madison’s Hand: Revising the Constitutional Convention, Mary Bilder’s revisionist account (2016) of James Madison’s Notes on the Constitutional Convention [ed.: book description here] argues that her central thesis, which is that Madison substantially revised the Notes long after the Convention adjourned, is groundbreaking but will have no effect on constitutional law. Madison’s Hand is groundbreaking because the book yields many powerful insights into the deliberations of the Convention and into the evolution of Madison’s thought. Nevertheless, constitutional practice in the Supreme Court and among elite lawyers is so divorced from the Notes that even a dramatic shift in their interpretation will not disturb the evolution of judicial doctrine applying the text written in 1787.

Notably, as I discuss here, Justice Scalia did not rely very much on Madison's notes (although he did occasionally).

05/06/2017

Calvin TerBeek on Justice Alito
Michael Ramsey

At The Faculty Lounge, Calvin TerBeek (guest blogging): Is Justice Alito a Crit (or Just a Movement Conservative)?  From the introduction: 

Given the larger current political environment, it is perhaps understandable a rather remarkable speech Justice Alito gave at the Claremont Institute in early February received relatively little media attention (Mark Joseph Stern excepted). In addition to setting forth a robust constitutional conservatism—not, notably, couched in the narrative of originalism--Alito also explicitly advocated for the larger conservative political agenda, in the process invoking decades-old resentments and through lines in postwar conservatism. This was not a Scalian speech arguing for originalism, but more in the spirit of William F. Buckley, one of Alito’s intellectual heroes--Alito's 1985 DOJ application, declared, "I am and always have been a conservative" and that the "greatest influences on my views" were Buckley and Goldwater. While the critical legal studies movement is rightly associated with the Left, Alito appears to be the mirror image of a still-hypothetical Leftist crit justice (Douglas was the closest, Brennan's story is more complex). It is difficult to read the Claremont speech and think otherwise. Alito is not only hinting at where he sees the Court moving with five conservative votes now, but how the conservative movement, from NR-style “fusionism,” Goldwater, the New Right, to the Federalist Society ecosystem, all shaped his worldview. This is a speech worth paying attention to.

I'm not sure, though, that the post or the speech establishes that Justice Alito is not an originalist (or at least not originalist-influenced) in his judicial opinions.  Indeed, the first substantive example the post goes on to give, involving the growth of the administrative state, seems strongly originalist-influenced to me.  Nonetheless, it is interesting to speculate about the possible emergence of a nonoriginalist conservative judicial voice, and what that would mean for originalism.

05/05/2017

David E. Weisberg: Originalism is Dead...Long Live Identicalism!
Michael Ramsey

David E. Weisberg (Independent) has posted Originalism is Dead...Long Live Identicalism! on SSRN.  Here is the abstract:

The late Justice Antonin Scalia deplored ill-founded Court opinions purporting to establish that “my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” He argued strenuously against what can be called juristocracy—rule by judges—and in favor of the rule of law. His theory of Originalism, with its presumption of time-dated original meanings for words and phrases in the Constitution, was designed specifically to restrain jurists from crossing the sometimes indistinct but always important boundary that separates interpreting the Constitution from amending it.

But, in formulating Originalism, Justice Scalia botched the job. The theory is irreparably flawed, because it generates:

The Paradox of Originalism: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

The Paradox ensnares the conscientious Originalist in an infinite regress.

The close association of the idea of an objectively-determined rule of law with Originalism ultimately serves only to discredit the former. Those who would advance the rule of law and resist a “living” Constitution ironically but actually work against those goals by propping up an inherently flawed Originalism. 

Originalism was founded on the rebuttable presumption that words and phrases in the Constitution have time-dated original meanings that differ from their current meanings. We can avoid all of Originalism’s flaws, and still retain an objectively-determined approach to constitutional interpretation, if we adopt the converse presumption: words and phrases in the Constitution are presumed to have original meanings that are identical to their current meanings, unless the contrary is established. I present such an approach, which I call Identicalism.

Nobody tell Jonathan Gienapp!  (See here and here).

Seriously, treated just as a rebuttable presumption (in which case the label "identicalism" is a bit of an overstatement), I think this proposal is as a practical matter how many originalists proceed.  That is, they look first at the text itself and see what it seems to mean in modern terms; then they look to see if historical evidence suggests that the meaning has shifted over time, so that the modern meaning is not actually equivalent to the historical meaning.  For example, we think that each state gets to elect two Senators regardless of population because (a) that's what the text says, given its ordinary modern meaning, and (b) we are not aware of any possible historical meaning that would suggest otherwise.  As a practical matter, I'm not sure that's wrong.

I can see at least one difficulty, however.  The modern meaning of some constitutional provisions may be heavily influenced by what the Supreme Court has said they mean, even if what the Court has said has little relationship to what we would otherwise think of as their common meaning.  For example, we may now think that the phrase requiring "due process of law" precludes some substantive results that a legislature might reach.  But that's just because the Court has said so.  Absent the Court's intervention, the modern meaning of "due process" would likely be limited to, well, "process" -- not substance.  But  arguably the Court's equation of process and substance did not arise from any ordinary meaning of the term; it arose because that is how the Court could get to where it wanted to be.  To be sure, it's possible that the original meaning of "due process" had a substantive component -- that point depends on a historical assessment.  But it is not clear why the presumption should run one way rather than another just because the Court has, for its own purposes, intervened.

UPDATE:  David Weisberg responds:

I’d like to make three points in response to Mike Ramsey’s comments.  First, what I’ve called the Paradox of Originalism is in my mind a theoretical or logical point.  Whether or not many Originalists in practice use a method that avoids the Paradox is beyond my ken.  Regardless, the Paradox is alogical point, and it will remain valid no matter what practices people follow.
 
Secondly, although it may well be that “many originalists” as a practical matter presume that original meaning and current meaning are identical (unless the contrary is established), I know for a fact that Justice Scalia himself did not entertain such a presumption—unless, that is, he was intentionally misleading us in his Court opinions and other writings.  One has only to read his quintessentially Originalist opinion in Heller (which I discuss in great detail in my paper) to appreciate that Justice Scalia embraced the converse presumption.  To determine the meaning of the word “arms,” he consumes an entire page of the US Reports and refers to five secondary literary sources, the most recent of which was published in 1828.  Justice Scalia never once cites a modern dictionary in Heller; when he relies on secondary literary materials, those materials are all roughly contemporaneous with the Second Amendment.
 
Finally, about labels—it is true that, in the end, they probably don’t much matter.  But, I myself find it very odd that, if a person acknowledges that an important antique text might have an original meaning that differs from its current meaning, and that same person nevertheless decides to presume that those meanings are identical (unless the contrary is established), he or she would think that “Originalism” is an appropriate name for that interpretive approach.  There is, I guess, no accounting for taste.

05/04/2017

Who are Officers of the United States? The Inadequacy of the Buckley Standard
Mike Rappaport

Jennifer Mascott gave a talk at the University of San Diego Originalism Center on her new paper, which is to be published in the Stanford Law Review, on Who are the Officers of the United States?

The paper engages in originalist research on an important topic that modern originalist scholars have largely neglected: how to distinguish between officers, who are subject to the Appointments Clause procedures, and employees, who are not.  Mascott concludes that many more government positions constitute offices than modern law allows and therefore are subject to the requirements of the Constitution’s Appointments Clause.

For many years, the question of who is an officer of the United States has been answered based on the standard announced in Buckley v. Valeo -- a person who exercises significant authority pursuant to the laws of the United States.  The significant authority standard has been applied by looking to the importance of the position, to whether the person exercises significant discretion, and whether the person exercises the sovereign authority of the United States.

But people tend to forget that the Buckley v. Valeo standard, while intuitive, was not based on originalist research.  Part of the reason for this is that the narrow result in Buckley no doubt was a strong step in the originalist direction.  In Buckley, the Congress had established a Federal Election Commission, for which the commissioners were not appointed in accordance with the Appointments Clause.  Two commissioners were appointed by the House, two by the Senate, and two by the President, with all six commissioners subject to confirmation by both the House and Senate.  The Supreme Court held that all six members were officers of the United States, who had to be appointed in accord with the Appointments Clause.  Clearly, the heads of an agency, like the commissioners, were Officers of the United States under any plausible view of the Appointments Clause.

One question is how the Congress concluded that it could get away with such a blatantly unconstitutional commission?  The likely answer is that it the law was passed in 1974.  The Supreme Court had stopped enforcing the separation of powers against laws enacted by Congress during the New Deal and so Congress believed that anything would go.  But the Court in Buckley announced to the world that the Separation of Powers would start to be enforced.  In that respect, Buckley seemed like an obviously good and originalist decision.

But merely because Buckley got the right originalist result does not mean its analysis was correct.  So the question remains – which Mascott’s paper addresses – what is the dividing line between officers and nonofficers?

Structural Reasoning in Venezuela v. Helmerich & Payne
Michael Ramsey

Venezuela v. Helmerich & Payne International, a statutory case decided by the U.S. Supreme Court early this week, illustrates a broader interpretive point.  The case concerns the Foreign Sovereign Immunities Act (FSIA), specifically the part of the FSIA that provides an exception for immunity for claims involving takings in violation of international law.  Helmerich, the plaintiff, claimed that Venezuela took its property in violation of international law.  The question for the Court was a narrow one: whether, as a jurisdictional matter Helmerich had to actually show at the outset of the case that a violation of international law occurred, or whether (as the lower court held) Helmerich could get past the threshold jurisdictional issue just by making a non-frivolous claim that international law had been violated.

I don't think the text of the FSIA does much to answer that question.  But (as the Court found unanimously) the statute's structure and background does a lot to answer it.  The central point of the FSIA is to keep foreign sovereigns out of U.S. court -- not just to protect them from U.S. judgments, but to protect them from U.S. litigation -- except in specific well-defined circumstances.  That's apparent from the structure -- a broad jurisdictional immunity followed by a list of exceptions.  It's also apparent from the background of foreign sovereign immunity, which traditionally held that it was an insult to sovereignty for one nation to take jurisdiction over another (subject, in more modern times, to limited exceptions).  As a result, it should not be enough to find jurisdiction for a plaintiff to make a non-frivolous argument for a taking in violation of international law; jurisdiction should depend on there actually being a taking in violation of international law.  This is roughly what the Court, per Justice Breyer, said.  From a summarizing paragraph part way through:

To find jurisdiction only where a taking does violate international law is thus consistent with basic international law and the related statutory objectives and principles that we have mentioned. But to find jurisdiction where a taking does not violate international law (e.g., where there is a nonfrivolous but ultimately incorrect argument that the taking violates international law) is inconsistent with those objectives. And it is difficult to understand why Congress would have wanted that result

Note first that Justice Breyer's opinion is statutory originalism -- that is, it turns on the statutes's original objectives and its international law background.  It just isn't especially textualist -- Breyer admits the text is ambiguous and the key structural and background points come from outside the text.  I think this connects with a broader point about originalist interpretation and some work I have been doing about Justice Scalia's originalism in practice.   Scalia was criticized for several lines of cases that seemed to go beyond the constitutional text, especially in standing, state immunity and federalism.  What he was applying in those cases, though, were the objectives and background assumptions -- what he called the "essential postulates" -- of the provisions in question.  Critics said he was not being faithful to his methodology, but I think this simply was part of his methodology.    Being a textualist (in Scalia's sense of it) does not mean giving up when the text alone is ambiguous.  I think Scalia would have been fine with the decision in Helmerich (as Justice Thomas was) for parallel reasons: the "essential postulate" of the FSIA is that foreign sovereigns should be protected from coming under the authority of U.S. courts except in narrow circumstances.  Thus a claim that one of the narrow circumstances exists must be proved up front, before the sovereign is subject to extensive litigation.  The text doesn't say this directly, but it was part of the background structural assumptions that produced the statute.

 

05/03/2017

Philip Wallach on "Congress' Constitution" by Josh Chafetz
Michael Ramsey

At Liberty Law Blog, Philip Wallach (Brookings Institution) reviews (mostly favorably) Josh Chafetz's new book Congress' Constitution (Yale University Press, forthcoming 2017):  Congress’s Constitution – If They Can Keep It.  From the introduction:

Our Constitution makes Congress the first branch of government, but the Capitol is today regarded almost as a house of ill-repute, both for the character of its members (not necessarily ours, but theirs) and its general contribution (or lack thereof) to the national well-being.  As a legislature, its primary means of asserting itself must be to pass legislation, but it has become infamously inept in that work in this age of severe polarization and powerful interest groups happy to block changes to a status quo they find lucrative.  Given the apparent permanency of these underlying factors, many observers now see the waning of Congress’s importance as both inevitable and unequivocally desirable.

In his new book, Congress’s Constitution, Cornell legal historian Josh Chafetz persuasively shows that this increasingly fashionable view of Congress is wrong: historically ignorant of the ways in which Congress and its legislative predecessors have asserted themselves, and normatively oblivious to the importance of such assertions in the overall constitutional scheme of separated powers.  Chafetz shows how Congress’s powers go well beyond legislation. They encompass the “hard” (coercive) powers of the purse, personnel (both through advice and consent and impeachment), and contempt, as well as the “soft” (attractive) powers often seen as mere housekeeping details but actually crucial to regulating the terms of political debate, disciplinary powers over members, and cameral rule-making powers.  Together these powers furnish Congress with “a potent toolbox” it has historically shown the ability to use “judiciously” to gain the public’s trust, though by no means has it always done so.

And from the more critical part:

Chafetz is less effective, however, in meeting the more general challenges of justifying Congress and explaining how it might recover some of the legitimacy it has clearly lost in recent years.  As a closing chapter, he offers a rather clipped brief in favor of Congress’s importance and particular virtues.  He gestures in some promising directions, including defending Congress’s importance to a politics that “is our peaceable means for dealing with deep and persistent conflicts” in a “diverse political community.”  But he is mostly operating on faith here rather than presenting evidence.  As an example of Congress promoting “interbranch deliberation” that usefully educates the public, he points to Congress’s performance in the confirmation hearings of Robert Bork, without addressing clearly what makes an argument a useful one, or what cost in terms of heightened partisan animosity might be worth paying for the benefit of a robust political debate.

Chafetz avoids undertaking a sustained assessment of why Congress is failing to live up to its best self, and that is a shame.  He rightly points out that we have seen Congress rather meekly acquiesce in the diminishment of funds subject to annual appropriations, thereby ratifying a major shift in the constitutional balance of power—but does not probe the sources of that meekness.  He could well have added that by increasingly relying on continuing resolutions, rather than passing annual departmental appropriations,  Congress’s abdication has become even more nearly complete, and the discipline that its power of the purse is supposed to provide is a distant memory. He does not much consider whether the incentives facing individual representatives may have shifted over time, thereby making it less likely that the legislators of the 21st century will play the constructive, combative role he envisions.  And, having bracketed off Congress’s legislative function at the outset of the book, he does not return to it in his big picture thinking about Congress, which is a bit frustrating.  It would have been nice to see Chafetz engage the work of one of his mentors, Guido Calabresi, who in A Common Law for an Age of Statutes tried to envision ways in which Congress and the courts should be adapting our system of separated powers to a governing regime made qualitatively different by many decades of legal accumulation.

And here is the book description from Amazon:

Congress is widely supposed to be the least effective branch of the federal government. But as Josh Chafetz shows in this boldly original analysis, Congress in fact has numerous powerful tools at its disposal in its conflicts with the other branches. These tools include the power of the purse, the contempt power, freedom of speech and debate, and more.

 Drawing extensively on the historical development of Anglo-American legislatures from the seventeenth century to the present, Chafetz concludes that these tools are all means by which Congress and its members battle for public support. When Congress uses them to engage successfully with the public, it increases its power vis-à-vis the other branches; when it does not, it loses power. This groundbreaking take on the separation of powers will be of interest to both legal scholars and political scientists.
 
I would say, in response to the book description -- for which Professor Chafetz surely isn't responsible -- that there is nothing inconsistent in (a) Congress being the least effective branch, and (b) Congress having ample tools at its disposal.  As the review implies (but I would also say -- and have said -- more strongly): Congress needs to get its act together for the sake of separation of powers.
 
RELATED:  Via Volokh Conspiracy, President Trump criticizes the filibuster (in an interview with Martha MacCallum):
 
[TRUMP:]  We don’t have a lot of closers in politics and I understand why. It’s a very rough system, it’s an archaic system. You look at the rules of the Senate, even the rules of the House, [but] the rules of the Senate and some of the things you have to go through, it’s really a bad thing for the country in my opinion.

There are archaic rules and maybe at some point, we’re going to have to take those rules on because for the good of the nation things are going to have to be different. You can’t go through a process like this. It’s not fair, it forces you to make bad decisions. I mean, if you’re forced into doing things that you would normally not do except for these archaic rules, so

[MARTHA] MACCALLUM: Like what, how would you change them?

TRUMP: Well, you know, you look at the voting and you look at the filibuster system. And it used to be. You know, I always thought of filibuster where you stand up and you talk all day and then somebody else–

MACCALLUM: You don’t have to do that anymore.

TRUMP: No, you don’t have to do it anymore. Today you say filibuster guys sit home and they watch television or whatever they do. I think, you know, the filibuster concept is not a good concept to start off with but if you’re going to filibuster, let somebody stand up for 20 hours and talk and do what they have to do or even if they are reading comic books to everybody, let them do it but honestly, the whole with so many bad concepts in our rules and it’s forcing bad decisions. I really see. I see just — I’ve seen this — I’ve seen it over the years where bad decisions are made, decisions that nobody wanted are made because of archaic rules and that’s something that I think we’re going to have to change.

Agreed, except I think the President is mistaken on two points.  (1) Eliminating to filibuster (and similar reforms) is not necessarily in the President's (or the presidency's) long-term interest.  It will make Congress stronger as compared to the President.  That's why it should be supported in the interest of separation of powers.  Sometimes it may help the President get what he wants, but that's not the reason to support it.  (2) As he acknowledges toward the end of the remarks, it's wrong to attribute Congress' current underperformance to "archaic" rules.  The rules, and the way they are implemented,  are not longstanding ones, other than in name.

05/02/2017

Ryan Scoville on Renegotiating NAFTA
Michael Ramsey

At Lawfare, Ryan Scoville (Marquette): The Appointments Clause as a Hurdle to the President’s Trade Agenda.  From the core of the argument:

As I see it, there is a fair argument that the President cannot renegotiate a trade agreement without specific, prior approval from the Senate.

The argument is based on the Appointments Clause, which requires the Senate’s advice and consent for the appointment of “Ambassadors” and “other public Ministers.” Many contemporary observers assume that the President holds independent power to appoint any and all U.S. negotiators of international agreements. On this assumption, President Trump need not, at least as a constitutional matter, seek advice and consent in selecting those who would renegotiate NAFTA or any other trade agreements because the negotiators would not qualify as “public Ministers” and “Officers of the United States” under the Appointments Clause.  

This assumption is not unreasonable. It draws support from the Justice Department’s Office of Legal Counsel and an apparently significant volume of modern practice. It is one that the Senate has done little to oppose in recent years. And it is functionally sensible as a position that facilitates the making of international agreements.

But it is likely at odds with original meaning. As I explain in much greater detail elsewhere, there is ample evidence that the Framers expected the President not only to obtain the Senate’s advice and consent in appointing those who would negotiate an international agreement, but also to do so for each and every separate negotiation. On this understanding, President Trump cannot pursue any new trade negotiations without first obtaining fresh advice and consent for the designation of those who would serve as the negotiators.

The logic of this position is straightforward: “public minister” is a term of art under the historical law of nations; the definition of that term plainly encompassed treaty negotiators; and the Framers appear to have understood that one who qualifies as a public minister for the U.S. government under the law of nations constitutes both a “public Minister[]” and an “Officer[] of the United States” as a matter of domestic constitutional law. Thus, the advice and consent of the Senate is necessary for the appointment of such officials.

I highly recommend Professor Scoville's article (linked in the above excerpt) on the original meaning of officers and public ministers. It has caused me to rethink and perhaps retreat from some strong positions I took in this article about the President's power to appoint informal representatives.  In particular, I think he is right that a person negotiating a trade agreement on behalf of the U.S. would be a "public minister" requiring Senate confirmation.

However, I don't follow the next step in the argument, namely that confirmation is required "for each and every separate negotiation" such that "President Trump cannot pursue any new trade negotiations without first obtaining fresh advice and consent for the designation of those who would serve as the negotiators."  Suppose there is an office that's created by Congress for the general purpose of overseeing trade negotiations, and a person is confirmed to that office by the Senate.  And suppose also that person has deputies (again, offices created by Congress) and people have been confirmed to those offices (or appointed as "inferior officers" pursuant to statute, as the Constitution allows).  Why can't those people negotiate specific trade agreements, as part of their general duties to oversee the negotiation of trade agreements?  I do not see anything in the Constitution that requires the appointment/confirmation to be done on a negotiation-by-negotiation basis.  It may well be true that in the immediate post-ratification period the Senate did confirm negotiators on a negotiation-by-negotiation basis.  But that does not prove it was constitutionally required.  It only proves that at that time there were no offices, apart from the Secretary of State,  with general negotiation powers.

Now, there are such offices, namely the Secretary of Commerce and the Secretary's deputies (and the U.S. Trade Representative (USTR), although currently the Senate has not confirmed a USTR and the status of the acting USTR is more complicated).  I do not see why the Commerce Secretary (the person appointed for the purpose of coordinating the U.S. negotiations on trade issues) and his deputies can't renegotiate trade deals such as NAFTA as part of their existing duties.  (This probably goes for the acting USTR as well).  If Congress creates a general office of trade negotiator, and the Senate confirms a person to that office, the appointments clause seems satisfied.  Nothing in the Constitution says that offices cannot be created with general negotiation powers (as opposed to only specific ones).

In sum, the best argument for the President isn't that trade negotiators would be informal and thus not subject to confirmation (which is wrong for the reasons Professor Scoville says it is); it's that there are already officers in place with general powers to negotiate on behalf of the United States, and nothing in the Constitution says that those officers must be appointed for specific negotiations rather than for negotiations in general.

(But again, the key to assessing this debate is Professor Scoville outstanding article).

05/01/2017

Why Justice Thomas Was Correct in Nelson v. Colorado
Andrew Hyman

This was a Fourteenth Amendment due process case, and co-blogger Michael Ramsey blogged about it here in January and again in April.  I disagree with Mike about it, and would like to briefly say why.  

SCOTUSblog has background information about the case here.  It was decided  by SCOTUS on April 19 in an opinion by Justice Ginsburg, by a vote of 7-1, with Justice Alito concurring only in the judgment, and Justice Thomas dissenting (Justice Gorsuch did not participate).

Basically, the case was about a Colorado “Exoneration Act” that allowed convicted criminals to be compensated by the state if their convictions are later overturned (e.g. the Act offered compensation for restitution already paid to the victims plus $70,000 per year of wrongful imprisonment), provided the exoneration did not result only from insufficient evidence or from a legal error unrelated to innocence. Neither of the petitioners in this case attempted to get compensation via the Exoneration Act, and instead they sued to have that Act declared unconstitutional without giving the Colorado courts a chance to find in their favor under the Act.

Justice Ginsburg suggested a reason why the petitioners did not try to get relief under the Exoneration Act: “A successful petitioner under the Exoneration Act can recover reasonable attorney’s fees, §13–65–103(2)(e)(IV), but neither a defendant nor counsel is likely to assume the risk of loss when amounts to be gained are not worth the candle.”  Ginsburg noted that the Exoneration Act offered $70,000 for each year of imprisonment, but omitted that the petitioners, Shannon Nelson and Louis Alonzo Madden, were imprisoned for four years and two years, respectively, so there was a substantial pot of money potentially available under the Exoneration Act. 

I agree with Sherry Colb: “If the money Nelson seeks is indeed compensation, then it is no different in substance from the compensation that she might seek for her incarceration. And if the latter is not available to her as a matter of right under the Due Process Clause, then neither should the former be.”  Colb goes on to say that they are different, but I don’t buy it.

In this case, the restitution money was apparently given to the victims upon conviction.  Ginsburg’s opinion glossed over key issues such as whether the state had power to give that restitution money to the victims upon conviction in the first place, and if so whether the state should have subsequently retrieved that restitution money from the victims upon exoneration despite the property rights of the victims.  Justice Ginsburg apparently thinks Colorado taxpayers must fork over the money to give to the exonerated petitioners.  Ginsburg did not dispute that the victims had in fact been victimized (e.g. by persons other than those accused).  In my opinion, if federal judges are going to decide what the law should be instead of what the law is, then they should at least forthrightly discuss the factors that are relevant from a moral perspective.  And, make no mistake, this was an opinion about what the law should be: the Court acknowledged that the petitioners did not initially prevail at trial, but said that that fact “should be inconsequential....[T]o get their money back, defendants should not be saddled with any proof burden” (emphasis added).    Should should should.

Let’s suppose (as seems to be true in this case) that the restitution money became property of the victims upon valid receipt by the victims, and the legislature decided that taxpayers should not have to foot the bill for compensating the exonerated petitioners unless the petitioners succeed under the Exoneration Act.  One can argue that legislators "deprive" people of property whenever they decide not to give out taxpayer money, but I would have to see a much stronger case for it than this one.  A much better approach than the one taken by SCOTUS in this case would have been to remand to the Colorado Supreme Court for determination of whether the petitioners retained a property interest (i.e. a right to an automatic refund)  even after exoneration, as Justice Thomas suggested.  After all, such a property interest is prerequisite to any constitutional due process requirement.  Thomas was also correct to mention in a footnote that the word “due” in the Due Process Clause may well mean “owed according to the law of the land” (as the framers of at least the Fifth Amendment clearly meant and intended) rather than owed according to whatever a majority of SCOTUS happens to want.

My friend Mike Ramsey wrote, “I would think an originalist would say that the due process clause locked in traditional common law protections for traditional property, and material departures are per se unconstitutional.”  This assertion does not distinguish between traditional procedures under common law versus traditional substantive rights under common law, and therefore is vastly overbroad.  Even as to procedure alone, the common law was crystal clear that the word “law” in the phrase “due process of law” does not merely refer to common law but also to statutory law: "lex terrae is not confined to the common law….”

I see no more need under the Due Process Clause to compensate for the restitution money than to compensate for the imprisonment, and the Exoneration Act potentially offered both, if only the petitioners in this case had exhausted their remedies in state court.  Mike writes, “Under traditional common law principles, I assume that the government could not take property pursuant to an invalid conviction.”  But the government takes liberty pursuant to an invalid conviction all the time, between trial and appeal, often without any subsequent compensation of the kind offered by Colorado.  In this case, the state’s denial of compensation for both the deprivation of liberty and for the deprivation of property were ongoing after the exoneration, so I do not remotely see why SCOTUS thinks it has any authority to rid the world of one denial but not the other denial under the Due Process Clause (which addresses both liberty and property on equal terms).  There may be other constitutional clauses that justify the result in this case, and there may be ways to make the Exoneration Act fairer, but I very much oppose using the Due Process Clause as a catch-all replacement for legitimate constitutional argumentation and for legitimate democratic self-governance; my opposition on that score applies to both momentous matters and trivial ones alike. 

This was a classic case of the judiciary saying what they think the law should be instead of what the law is.  I will even take it a step further, and say that if I had authority over the U.S. Marshals Service, I would probably decline to take any enforcement action in this case, and instead would leave it up to the state authorities, given that federal executive branch authorities take an oath to the Constitution rather than to another branch's clearly erroneous or extremely doubtful interpretations of that document.  At some point, the Court ought to meet resistance in construing "due process" to mean whatever it wants.  So sue me.

Latest Issue of the Harvard Journal of Law and Public Policy
Michael Ramsey

Volume 40, Issue 1 (April 2017) is available here.  It features essays from the 2016 Federalist Society National Student Symposium plus (as usual) several articles of originalist interest.  Here is the table of contents:

POVERTY, INEQUALITY, AND THE LAW THE THIRTY‐FIFTH ANNUAL FEDERALIST SOCIETY NATIONAL STUDENT SYMPOSIUM ON LAW AND PUBLIC POLICY—2016

IMMIGRATION, FREEDOM, AND THE CONSTITUTION, Ilya Somin

THE POWER TO CONTROL IMMIGRATION IS A CORE ASPECT OF SOVEREIGNTY, John C. Eastman

JUMP‐STARTING K–12 EDUCATION REFORM, Clint C. Bolick

ECONOMIC EQUALITY IS AN IMMORAL IDEAL, Yaron Brook

AMERICA’S EXCEPTIONAL SAFETY NET, Julia D. Mahoney

THE FREEDOM TO FAIL: MARKET ACCESS AS THE PATH TO OVERCOMING POVERTY AND INEQUALITY, Jason Scott Johnston

LESSONS FROM THE LEAST OF THESE, Robert Woodson

ARTICLES

DEFYING CONVENTIONAL WISDOM: THE CONSTITUTION WAS NOT THE PRODUCT OF A RUNAWAY CONVENTION, Michael Farris

DELEGATION RECONSIDERED: A DELEGATION DOCTRINE FOR THE MODERN ADMINISTRATIVE STATE, Ronald A. Cass

“AN ARTIFICIAL BEING”: JOHN MARSHALL AND CORPORATE PERSONHOOD,  Christopher J. Wolfe

ESSAY

A PROPOSAL TO RESTRUCTURE THE CLEMENCY PROCESS—THE VICE PRESIDENT AS HEAD OF A WHITE HOUSE CLEMENCY OFFICE, Paul J. Larkin, Jr.

04/30/2017

New Book: Thomas West, "The Political Theory of the American Founding"
Michael Ramsey

Recently published: Thomas G. West (Hillsdale College), The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (Cambridge Univ. Press 2017).  Here is the book description from Amazon: 

This book provides a complete overview of the American Founders' political theory, covering natural rights, natural law, state of nature, social compact, consent, and the policy implications of these ideas. The book is intended as a response to the current scholarly consensus, which holds that the Founders' political thought is best understood as an amalgam of liberalism, republicanism, and perhaps other traditions. West argues that, on the contrary, the foundational documents overwhelmingly point to natural rights as the lens through which all politics is understood. The book explores in depth how the Founders' supposedly republican policies on citizen character formation do not contradict but instead complement their liberal policies on property and economics. Additionally, the book shows how the Founders' embraced other traditions in their politics, such as common law and Protestantism.

Via Steven Hayward at Powerline, who adds:

First, West’s account is not just at another rich synthesis of the various intellectual traditions and currents that most historians attribute to American political thought, but instead makes a powerful case for the centrality of the idea of natural law and natural right above other ideas: “If I am correct, the founders embraced ‘other traditions’—common law. Protestantism, etc.—only to the extent they helped to ‘secure these [natural] rights.’”

Second, West directly and powerfully rejects the smug historicism typical of most accounts of the American founding today even by some authors who regard themselves as sympathetic to the founding. Historicism assumes our current opinions, even consciousness itself depending on how far out you travel on the historicist spectrum, are limited by our own historical horizons. For people trapped in the prison of historicism, the “truth” of the founders may have been true for their time, but our times and ideas are—and must be—different. (This is the root of that laziest of liberal tropes about “the side of history.”) West believes (and I agree) that the achievement of the American founding was crystalizing the accumulated and hard-won political wisdom of two millennia of western civilization into a truly novus ordo seclorum—a new order for the ages, meaning an advance of human social order based on permanent principles of right. As George Washington wrote in 1783: “The foundation of our empire was not laid in the gloomy ages of ignorance and superstition; but at an epoch when the rights of mankind were better understood and more clearly defined, than at any other period.

04/29/2017

Michael Perry: Human Rights, Democracy, and Constitutionalism
Michael Ramsey

Michael J. Perry (Emory University School of Law) has posted A Global Political Morality: Human Rights, Democracy, and Constitutionalism on SSRN.  Here is the abstract: 

 This SSRN posting consists mainly of the introduction to my new book: A GLOBAL POLITICAL MORALITY: HUMAN RIGHTS, DEMOCRACY, AND CONSTITUTIONALISM (Cambridge University Press 2017). [ed.: The Amazon book page is here.] The “global political morality” to which the title refers is what I call “the morality of human rights”. In the book, as I explain more fully in the introduction, I pursue several related inquiries that lie at the interface of human rights theory, political theory, and constitutional theory.

The first two inquiries concern the morality of human rights: 1. What are “human rights”? 2. What reason (or reasons) do we have--if indeed we have any — to take human rights seriously?

The next two inquiries concern the relationship of the morality of human rights to democratic governance: 3. How does the morality of human rights support democratic governance? 4. How does the morality of human rights limit democratic governance? I address the latter question with particular reference to the human right to religious and moral freedom.

The final three inquiries concern the relationship of the morality of human rights to certain constitutionalism-related questions: 5. In the context of the Constitution of the United States, what theory of judicial review takes seriously both the human right to democratic governance and the other human rights that are limits on democratic governance? 6. What are the implications of that theory of judicial review — a theory that comprises a (limited) affirmation of an originalist understanding of constitutional "interpretation" — for the constitutional controversies over, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion? 7. Should human rights of the socioeconomic sort, such as the human right to adequate healthcare, be constitutionalized — and if so, should they also be judicialized?

Note that points (5) and (6) in the abstract are of particular interest to originalist scholars.

Plus, at the Amazon page, strong endorsements from, among others, Richard Kay and Robin Bradley Kar.

04/28/2017

Last Week's Decision in Nelson v. Colorado
Michael Ramsey

At Volokh Conspiracy, David Post on last week's Supreme Court decision in Nelson v. Colorado: Whose money is it?: Clarence Thomas and the due process clause.  As Professor Post explains:

Here’s the background, for those unfamiliar with the case: Colorado imposes court costs and various other fees on anyone convicted of a crime; those whose convictions are subsequently overturned can obtain a refund of those fees, but only through a special proceeding at which they have the burden of showing, by clear and convincing evidence, that they were innocent of the crime(s) with which they were charged.

The court held that this was a violation of the 14th Amendment’s due process clause — i.e., that this procedure deprives these individuals of property without due process of law. Why? Because it is their money; the state’s claim to the funds was based “sole[ly] on the fact of their criminal convictions,” and once the convictions are voided, Colorado has “no legal right to exact and retain petitioners’ funds.”

I entirely agree, as I wrote at the time the case was argued: Nelson v. Colorado and Some Tricky Aspects of an Easy Case.  Disappointingly, the Court majority used the Mathews v. Eldridge balancing test, an entirely nonoriginalist construct, to reach this conclusion.  It does not seem to me (as I wrote in my prior post) that any balancing is required.  There are traditional ways to deprive people of property consistent with the due process of law, and Colorado's is not one of them.

The Court's approach is, however, consistent with Justice Scalia's concurring opinion in Connecticut v. Doehr (1991), in which Scalia said, for procedures that were not known to the common law, constitutionality could be evaluated under Mathews (as a matter of precedent, I suppose).  In contrast, procedures accepted under the traditional common law, Scalia said in Doehr, should automatically be validated.  I have come to think Scalia's approach in Doehr (with which I had some incidental association) is wrong.  Mathews may well be appropriate for so-called "new" property (statutory entitlements, as in Mathews itself).  But for traditional property, doesn't the due process clause call for traditional procedures prior to deprivation?  If states (such as Colorado) invent some deprivations that fundamentally depart from traditional protections, why should their validity turn on how a modern court "balances" matters that are essentially policy assessments?  Instead, I would think an originalist would say that the due process clause locked in traditional common law protections for traditional property, and material departures are per se unconstitutional.

But then there's Justice Thomas' dissent.  I was surprised he dissented, given his usual strong impulse to protect property. As Professor Post explains, the Justice got worried about whose property it was: 

[Thomas] begins with the uncontroversial assertion that in order to prevail on their due process claim, the petitioners “must first point to a recognized property interest in that money, under state or federal law.” You can’t, in other words, be deprived of property without due process of law unless what you have been deprived of is actually your property and you can show some “substantive entitlement” to it.

Fair enough. But here, he goes on to say, the money that the petitioners seek is not “their money” at all; it’s Colorado’s money.  It used to be “their money”; but once it was “lawfully exacted pursuant to a valid conviction,” it became the state’s money. This, Thomas points out, is what the Colorado Supreme Court had held in the proceedings below, that “moneys lawfully exacted pursuant to a valid conviction become public funds” under state law.

Professor Post objects strongly, and I agree.  The key is that the money was not "lawfully exacted pursuant to a valid conviction"; it was exacted pursuant to a conviction that appeared valid at the time but was later invalidated.   Justice Thomas erred, in my view, in focusing only on the attempt to get the money back, and not on the exaction of the money in the first place.  It's true that if the money had been lawfully taken, his focus would have been the right one.  But the whole point of the case was (or should have been) whether the money was lawfully taken in the first place -- that is, whether due process allows the state to take property pursuant to a conviction that is later found to be invalid.  If the initial taking did not comport with due process, then it seems fairly clear that the state's lame post-deprivation remedy (allowing reimbursement only if the claimant could prove actual innocence) was insufficient.  Thomas got to his conclusion only by assuming that the initial deprivation was valid.  But that just seems wrong.  Under traditional common law principles, I assume that the government could not take property pursuant to an invalid conviction.  With the focus put that way, that's all that needs to be said to decide the case.

04/27/2017

Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment
Mike Rappaport

In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand.  In these cases, one might expect that the skills of the professional historian would be the most valuable.  Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians.  Instead, originalists have a made a large number of important advances in this area.  Thus, even in the hard areas, one cannot dismiss the methods of originalists, especially when conducted in the proper way.

Back in the 1980s before I became a law professor, I was first exposed to originalist interpretation of 14th Amendment.  At the time, I thought the Privileges or Immunities Clause probably incorporated the Bill of Rights; the Due Process Clause was simply procedural due process, and the Equal Protection Clause provided for equality generally.  Various people made these arguments and they seemed to make sense.

But then I remember reading through the congressional debates on the Amendment and having the toughest time.  Members of Congress seemed to be saying the most absurd things.  How could they be so confused?

Obviously, someone was confused but it wasn’t necessarily the members of Congress.  I had come to the debate with preconceived notions about the meaning of the Amendment and somehow the debate did not conform to my ideas.

But that was back in the 1980s when the rebirth of originalism was in its infancy.  Over time, as the movement and your author have matured, the obvious mistakes of that approach have been recognized.  In particular, the problem of assuming that we know the meaning of the clauses, when we know one plausible meaning of the words, is seen as a serious problem.  There may be many possible meanings (including legal meanings that do not conform to ordinary language understandings).

Originalists have made great progress in the last generation in appreciating the many possible meanings of the 14th Amendment.  Thus, they have come to understand that the Privileges or Immunities Clause might protect various fundamental common law rights in the states instead of (or in addition to) protecting the Bill of Right.  They also recognize that the Clause might be understood as either protecting substantive rights or protecting only against unequal treatment as to the rights.

Originalists have also recognized many additional possible meanings of the Due Process Clause.  In addition to the possibility that the Clause only protects “procedural due process,” it might protect certain vested rights and certain equality rights.  Other scholars have argued it protects natural rights.  Yet other scholars have argued that it has the narrow meaning by only applying to departures from existing law, but does not forbid the legislature from establishing whatever procedures it desires.

Finally, there is the Equal Protection Clause.  One significant advance is that the recognition that the Clause might not require equality as to all laws, but instead might identify a category of matters, “protection of the law, that involves remedial matters (such as protecting people from having the rights they enjoy under the law infringed).  Under this view of the Clause, the state has an obligation to provide to people this type of protection (but only this type) equally.

Clearly, then, originalists have uncovered a significant number of historically plausible meanings of the Amendment.  This number of possibilities has represented a great advance.  But it now places the burden on originalists to determine what is the correct meaning.  In my view, this will depend on considering a variety of factors, including the more common meaning and the underlying purposes of the provision.

One might have thought that these advances, in this very difficult area, would have been the result of historians who were more conversant with the historical usage of these terms and concepts.  But to my mind, it has not been primarily the result of historians.  Instead, originalist scholars have made significant progress, such as Akhil Amar, Jack Balkin, Randy Barnett, Steve Calabresi, Nathan Chapman, Chris Green, John Harrison, Kurt Lash, Mike McConnell, Melissa Saunders, Ryan Williams and others who I am no doubt forgetting.

In some cases, I am sure the originalist scholars have benefitted from the work of historians.  I know, for example, that one of these originalist scholars greatly learned from William Nelson’s book on the 14th Amendment, even though that scholar does not agree with Nelson’s read on the Amendment.  Instead, some of the material Nelson discussed and some arguments he made proved persuasive or useful, even though some of the remainder was problematic.  Of course, I am more familiar with the law review literature and I may be missing some important contributions by historians.  But overall, my strong sense is that these developments have been more the result of law professors than historians.

There is, of course, an important role for historians.  But even in the area where we have been most at sea, historians have not dominated the field.  Instead, it has been a joint effort of many scholars, some of whom are historians, but one where originalists have made, at least to my mind, the principal contributions as to the specific original meanings.

Two from Steven Calabresi
Michael Ramsey

In the mail, from Steven Calabresi (Northwestern):

(1) Steven G. Calabresi and Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648 (2016).  Here is the abstract:

This article examines the original meaning of the equality guarantee in American constitutional law. It looks [at] the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

Even if one doesn't accept the ultimate conclusion, the article's historical evidence on the focus by the Fourteenth Amendment's framers on prohibiting the idea of a caste system is impressive and important for analyzing multiple issues under the Amendment.

(2) Steven G. Calabresi, Annual B. Kenneth Simon Lecture: On Originalism and Liberty, 2015-2016 Cato S. Ct. Rev. 17 (2016).  From the introduction:

My talk is titled “Originalism and Liberty” because I am an originalist when it comes to constitutional interpretation and thus agree with the methodological approach of Justices Antonin Scalia and Clarence Thomas. I should mention at the outset that I clerked for former Justice Scalia, and I deeply admire him and am grateful to him because he was my mentor for 34 years. Nonetheless, in the 25 years since I left Washington, D.C., to teach law at Northwestern University, I have studied the history of the Constitution and of the Fourteenth Amendment and Magna Carta in great depth and have concluded that the original meaning of those documents is somewhat more libertarian than Justice Scalia, for example, realized. I want today to present briefly my reasons for reaching the conclusion that originalism means endorsing a presumption of liberty and not a presumption of constitutionality when courts decide the cases that are before them.1 In endorsing a presumption of liberty, I am agreeing with Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty, even though I do not agree with everything Randy says in that book.

And also:

Before beginning my proof that originalism leads to a presumption of liberty, I need to explain what I think it means to be an originalist. I think originalism requires that when one interprets any legal text, whether it be the Constitution, a statute, a contract, or a Supreme Court precedent, one must give the words of the text one is interpreting their original public semantic meaning. This means consulting dictionaries, grammar books, and newspapers published at the time the legal text became law. I do not believe it is appropriate for judges to consult the original intent that animated the adoption of a clause but only the original semantic public meaning of the words of the text. Laws adopted by dead people bind us but their unenacted intentions do not. My view of originalism is thus the view expressed by Justice Scalia when he spoke at Catholic University in the fall of 1996. In that speech, he said:

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. . . . The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the  intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.

My task in this essay is to explain what I think was the original semantic public meaning of several words and clauses that appear in the text of the Constitution, the Bill of Rights, and the Fourteenth Amendment, which I think should lead to a presumption of liberty.