Another Round on Originalism and Liberty from Ilya Somin and Ed Whelan
Michael Ramsey

At Liberty Law Forum, Ilya Somin has a thoughtful reply to commentary (from Ed Whelan, Peter Lawler and Hadley Arkes) on his initial post How Constitutional Originalism Promotes Liberty (discussed here).

Ed Whelan has further thoughts in response at NRO here, and there is a further reply from Professor Somin here.

(Professor Somin mentions me in passing in his latest post, saying that I "agree[ ] that the rule of law is an instrumental rather than intrinsic justification for originalism."  I do believe that.  I'm not sure that this puts me on his side of the Somin/Whelan debate, however).

Declining to Enforce Court Orders Was All in a Day’s Work for Abraham Lincoln
Andrew Hyman

Regarding the 1861 case of Ex Parte Merryman, Mike Ramsey recently quoted Seth Barrett Tillman’s opinion that there is no evidence proving that, “President Lincoln believed he could legally authorize his subordinates to ignore or defy judicial orders, much less establish that Lincoln did so either in Merryman or in relation to any other civil war case.”

On the contrary, there is plenty of such evidence, which I will get to in a moment.  But first let’s go back to Lincoln’s first inaugural address in March of 1861.  A man very careful with his words, Lincoln said: “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit….”  He obviously did not endorse the position that constitutional questions are to be ultimately decided by the Supreme Court, nor did he actually affirm that such decisions must be binding even upon the parties (he merely declined to deny it).  Only a few weeks would pass before Lincoln would have to confront these very same issues.

In May of 1861, Chief Justice Taney issued a writ of habeas corpus ordering General Cadwalader to let John Merryman appear in court. When Cadwalader refused, Taney issued another writ, called a writ of body attachment, to bring Cadwalader himself into court.  Again, Cadwalader refused. Cadwalader’s refusal lasted not for hours or days or weeks, but throughout the entire month of June.  And that refusal was explicitly authorized by Abraham Lincoln, who later explained his position to the reconvening Congress on July 4:  “it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.”  Now that Congress had assembled, Lincoln gave the judiciary access to Merryman on July 10, on which date Merryman was indicted.

There is plentiful evidence that Cadwalader’s refusal to comply with Taney’s orders was authorized by Lincoln, even putting aside Lincoln’s speech of July 4.  For example, on May 28, Cadwalader received an order from the Assistant Adjutant General at Army headquarters acknowledging the writ of habeas corpus for Merryman, and adding: “The general-in-chief [Winfield Scott] directs me to say under authority conferred upon him by the President of the United States and fully transferred to you that you will hold in secure confinement” the prisoner John Merryman.  Thus, there is no doubt that President Lincoln believed he could legally authorize his subordinates to ignore or defy judicial orders, in the Merryman case.

And, the Merryman case was not unique in this regard.  For another instance of Lincoln ordering non-enforcement of a direct court order, see the less famous case of United States ex rel. Murphy v. Porter.  According to an October 22, 1861 entry in the diary of Lincoln’s secretary, John Hay, a Deputy U.S. Marshal asked Hay and Secretary of State William Seward what should be done about a court order directing General Andrew Porter to appear in court.  Seward replied: “The President ... forbids you to serve any process upon any officer here.” Hay then confirmed that those were “Precisely his words.”

None of this should be surprising.  To borrow some language from Alexander Hamilton, if there should happen to be an irreconcilable variance between the Constitution and a court order, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the court order, the intention of the people to the intention of their agents.  That presidents always show great deference to court orders, and almost always give them efficacy, does not mean that they must.  This is an essential element of separation of powers, and of checks and balances, and if judicial supremacy runs amok in the United States it may well be because these checks and balances have atrophied, and have become stigmatized.

More on Appointing Originalists
Michael Ramsey

Byron York notes 10 themes to watch in 2016 race, reporting on the Western Conservative Summit held over the weekend in Colorado, and one of the ten is this: 

Gay marriage is really about the Supreme Court. Even though it was the story of the hour, no candidate dwelled at great length on marriage. Neither Walker nor Carson even mentioned it in their prepared remarks. The one thing all [of the six candidates present] agreed on was that the next Republican in the White House has to avoid the mistakes of previous GOP presidents and find some way to identify true constitutional originalists to appoint to the Court. [emphasis added].  Look for future discussions to focus more on that question than on the morality of gay marriage itself.

Assuming this is fair characterization, it's notable (following up on Randy Barnett's thoughts here) that the focus is apparently on originalism rather than judicial restraint.

Obergefell and the Activismometer: a Slightly Different Sort of Level 5
Chris Green

My chief criticism of Obergefell was its failure to substantiate its many claims of knowledge regarding the similarity of same-sex and opposite-sex relationships with respect to the purposes of marriage. The one place in which the Court descended into the particular details--on the immutability issue--it cited evidence which actually contradicted its claim, as well as ignoring the bulk of the arguments and evidence before it.  Does that make Obergefell "activist"? Ryan Anderson calls it "as clear of an example of judicial activism as any we have seen in recent years."  

In an article last year, I suggested that we define activism and restraint epistemically--that is, in terms of knowledge and the standards it requires. This distinction is independent of the ontological question at issue in debates over originalism, i.e., the temporal extent--intergenerational, or not?--of constitutional truthmakers. I coined the word "activismometer" for the result of applying these epistemic principles and norms of conversation, describing five levels of judicial activism and passivity. Level 1 ignores relevant evidence or enforces knowably-unconstitutional laws, level 2 requires proof beyond reasonable doubt, level 3 requires clarity, level 4 requires mere preponderance, and level 5 does not even require knowledge of relevant considerations or--as in Obergefell, though I did not mention this sort of example in my article--ignores relevant counter-evidence and counter-arguments.

The basic norm of judicial statements about constitutionality is the basic norm of human discourse in general--stick to what you know. Don't make stuff up--follow "the moral rule that persons who tell what they do not know to be true, falsify as much as those who knowingly tell falsehoods." To admit ignorance of relevant considerations about the Constitution, but impose requirements based on one's declarations about it anyway, violates this norm most straightforwardly. I call this level 5 on my activismometer.  Central examples are Roe and Justice Jackson in Youngstown. Some of the lower court opinions on the same-sex-marriage question likewise claimed that they need not resolve questions about the whether same-sex and opposite-sex relationships are similarly situated with respect to issues like child-rearing; I place them as well at level 5.

Levels 2, 3, and 4 represent courts who accept that knowledge is required for judicial statements about the Constitution, but who use different standards for assessing what counts as knowledge in the context of judicial review. Many contemporary epistemologists hold that as the stakes increase, the amount of evidence requisite for knowledge likewise increases. If we've got a lot riding on whether the bank is open on Saturday, we are more likely to be agnostic in the face of evidence that might suffice for knowledge in a low-stakes context. Whether we require proof beyond reasonable doubt, clarity, or mere preponderance of the evidence (levels 2, 3, and 4 on the activismometer) depends on our assessments of the stakes involved in judicial review. (I agree with John McGinnis that the right level is 3.)

Level 1 represents the abandonment of judicial review even in the face of knowledge that a statute is unconstitutional or the failure to investigate constitutional claims fully. For a court, this is appropriate only if it lacks jurisdiction over a case, or it is otherwise not in a conversational context appropriate to judicial declarations about the Constitution.  (In Paul Grice's terms, this is the violation of a "quantity" norm, as opposed to the "quality" norm requiring knowledge for assertions.)  A court in a conversational context where statements about the Constitution are appropriate, however, ought to consider all relevant evidence.  In particular, it ought neither to (a) ignore evidence and arguments that have emerged since the legislature passed the law that that a court could use to clarify the constitutional issue, even if it might not have been clear to the legislature itself (James Bradley Thayer's chief mistake), nor (b) ignore the state's failure to supply a justification for its laws (the mistake of O'Gorman in 1931, Williamson in 1955, and generally modern rational-basis-review law).  (This adverse inference from silence would impose a burden of production on the state, but not a burden of persuasion.)  These mistakes are level 1 on the activismometer, which is too low.

Level 1, then, results from the failure to consider relevant evidence that could support an assertion about the Constitution. Evidence can, however, either support or undermine constitutional claims. Epistemologists call evidence that undermines a claim a "defeater"; they distinguish undercutting defeaters, which show that one's other evidence is unreliable, but without suggesting the opposite belief, from rebutting defeaters, which point the other way from one's other evidence.

To ignore either undercutting defeaters (e.g., criticisms of studies' methodology) or rebutting defeaters (e.g., alternative studies with the opposite conclusion) is to make a mistake precisely akin to the Level 1 mistake in O'Gorman of ignoring relevant evidence.  To the extent that Obergefell failed to adequately explain its rejection of contrary evidence, as I have argued here and here, its activismometer level should be set at 5. Roe claimed it didn't need knowledge at all, while Obergefell claimed implicitly it didn't need to rebut criticisms of its view in order to have knowledge. These correspond to the two Level-1 errors of (a) knowing that a statute is unconstitutional, but enforcing it anyway, and (b) ignoring evidence of a statute's unconstitutionality, and enforcing it anyway. Obergefell is thus a new kind of level-5 activism.


My Reactions to King v. Burwell
Mike Rappaport

I am a strong opponent of Obamacare.  But once I realized that a decision in King v. Burwell denying subsidies to people who purchase insurance under the federal exchanges would not help the cause of repealing Obamacare and might hurt it, my attitude towards the case changed.  I felt much less politically invested in the issue and could more easily view it in an impartial manner.

Thus, I read with a relatively open mind the opinions by Chief Justice Roberts and Justice Scalia in the case.  Although I am a formalist (albeit a soft formalist), I do believe that conflicting provisions in a statute can render it ambiguous and that purpose is permissibly used to resolve an ambiguity – two key premises of Chief Justice Roberts’s opinion.  But in the end, I concluded that Justice Scalia had the better of the argument by a significant margin. 

In my view, Justice Scalia effectively rebutted the claim that the Affordable Care Act contained contradictory provisions.  The provisions limiting subsidies to exchanges established by the state were clear.  The other provisions emphasized by Roberts that appeared to contemplate subsidies in federal exchanges could be reconciled with the “established by the state” provision.  The drafting was hardly exemplary, but there was no clear contradiction, especially when one considered the important canon that one should try to reconcile two apparently contradictory provisions.

Since there was no contradiction, one would only depart from the clear statutory language if there was an absurdity.  For those who are less formalistic, one might find Roberts’s meaning of the statute if there was a much stronger evidence of purpose for that interpretation than for Scalia’s.  But neither standard justifies Robert’s decision.

Roberts claims that the purpose of preventing adverse selection (“death spirals”) justifies providing subsidies on federal exchanges, but as Scalia points out there is another plausible purpose – providing states with an incentive to establish exchanges.  And Congress in at least one other place actually prohibited charging applicants for insurance more based on their health condition under conditions similar to those that would govern insureds under federal exchanges.  Thus, Congress cannot be seen as eschewing such a result.

I have been debating some of my colleagues about this opinion, and their main argument is that Congress would not have wanted to allow “death spirals” merely to provide the states with an incentive.  But I don’t know how they know this.  Certainly, Jonathan Gruber didn’t think this.  Given that my colleagues support subsidies on federal exchanges, it is awfully convenient that they find this purpose argument compelling, which is the basic problem with modern versions of purposivism (as opposed to the narrower version that Hart & Sachs advocated in the Legal Process).

But it seems to me that there is an even stronger argument against their view.  Under the ACA, Congress provided that if a state chose not to accept the New Medicaid program (which vastly expanded the old Medicaid program), the state would lose all of its federal Medicaid funding.  That would have had enormous consequences for the poor people of that state.  Yet, Congress allowed that to happen, because it wanted the state to choose the New Medicaid program.  If Congress allowed that choice under the ACA, I do not know why one would doubt it would also allow the similar choice at issue in King.

(Cross posted at the Liberty Law Blog)

The Chief Justice's Dissent in the Arizona Legislature Case
Michael Ramsey

Chief Justice Roberts has been the target of much criticism for his majority opinion in King v. Burwell, but I think we should instead be celebrating his outstanding originalist dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission (arguing that "Legislature" means, well, the legislature.)  As he puts it:

The relevant question in this case is how to define “the Legislature” under the Elections Clause. The majority opinion does not seriously turn to that question until page 24, and even then it fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, ante, at 24, that “the Legislature” encompasses any entity in a State that exercises legislative power. That circular definition lacks any basis in the text of the Constitution or any other relevant legal source.

Robert's affirmative case begins with dictionaries: 

The majority’s textual analysis consists, in its entirety, of one paragraph citing founding era dictionaries. The majority points to various dictionaries that follow Samuel Johnson’s definition of “legislature” as the “power that makes laws.” Ibid. (internal quotation marks omitted). The notion that this definition corresponds to the entire population of a State is strained to begin with, and largely discredited by the majority’s own admission that “[d]irect lawmaking by the people was virtually unknown when the Constitution of 1787 was drafted.” Ante, at 3 (internal quotation marks omitted); see ante, at 27. Moreover, Dr. Johnson’s first example of the usage of “legislature” is this: “Without the concurrent consent of all three parts of the legislature, no law is or can be made.” 2 A Dictionary of the English Language (1st ed. 1755) (emphasis deleted). Johnson borrowed that sentence from Matthew Hale, who defined the “Three Parts of the Legislature” of England as the King and the two houses of Parliament. History of the Common Law of England 2 (1713). (The contrary notion that the people as a whole make the laws would have cost you your head in England in 1713.) Thus, even under the majority’s preferred definition, “the Legislature” referred to an institutional body of representatives, not the people at large.

Then he looks at other founding-era sources: 

Any ambiguity about the meaning of “the Legislature” is removed by other founding era sources. “[E]very state constitution from the Founding Era that used the term legislature defined it as a distinct multimember entity comprised of representatives.” Morley, The Intratextual Independent “Legislature” and the Elections Clause, 109 Nw. U. L. Rev. Online 131, 147, and n. 101 (2015) (citing eleven State Constitutions). The Federalist Papers are replete with references to “legislatures” that can only be understood as referring to representative institutions. E.g., The Federalist No. 27, pp. 174–175 (C. Rossiter ed. 1961) (A. Hamilton) (describing “the State legislatures” as “select bodies of men”); id., No. 60, at 368 (contrasting “the State legislatures” with “the people”). Noah Webster’s heralded American Dictionary of the English Language defines “legislature” as “[t]he body of men in a state or kingdom, invested with power to make and repeal laws.” 2 An American Dictionary of the English Language (1828). It continues, “The legislatures of most of the states in America . . . consist of two houses or branches.” Ibid. (emphasis deleted).

He next turns to other uses of "Legislature" in the Constitution:

The unambiguous meaning of “the Legislature” in the Elections Clause as a representative body is confirmed by other provisions of the Constitution that use the same term in the same way. When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself. Our precedents new and old have employed this structural method of interpretation to read the Constitution in the manner it was drafted and ratified—as a unified, coherent whole. See, e.g., NLRB v. Noel Canning, 573 U. S. ___, ___–___ (2014) (slip op., at 19–20); id., at ___ (SCALIA, J., concurring in judgment) (slip op., at 32); McCulloch v. Maryland, 4 Wheat. 316, 414–415 (1819); Martin v. Hunter’s Lessee, 1 Wheat. 304, 328–330 (1816); Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999). The Constitution includes seventeen provisions referring to a State’s “Legislature.” See Appendix, infra. [Ed.:  Yes, he includes an appendix listing every use of "Legislature" in the Constitution.] Every one of those references is consistent with the understanding of a legislature as a representative body. More importantly, many of them are only consistent with an institutional legislature—and flatly incompatible with the majority’s reading of “the Legislature” to refer to the people as a whole.

And some drafting history: 

The history of the Elections Clause further supports the conclusion that “the Legislature” is a representative body. The first known draft of the Clause to appear at the Constitutional Convention provided that “Each state shall prescribe the time and manner of holding elections.” Debates on the Federal Constitution 146 (J. Elliot ed. 1836). After revision by the Committee of Detail, the Clause included the important limitation at issue here: “The times and places, and the manner, of holding the elections of the members of each house, shall be prescribed by the legislature of each state; but their provisions concerning them may, at any time, be altered by the legislature of the United States.” Id., at 225 (emphasis added). The insertion of “the legislature” indicates that the Framers thought carefully about which entity within the State was to perform congressional districting. And the parallel between “the legislature of each state” and “the legislature of the United States” further suggests that they meant “the legislature” as a representative body.

As the majority explains, the debate over the ratification of the Elections Clause centered on its second part, which empowers Congress to “make or alter” regulations prescribed by “the Legislature” of a State. See ante, at 25–27. Importantly for our purposes, however, both sides in this debate “recognized the distinction between the state legislature and the people themselves.” Brown v. Secretary of State of Florida, 668 F. 3d 1271, 1275–1276, n. 4 (CA11 2012).  ... [going on to discuss specific evidence, with a cite to originalist scholar Rob Natelson].

And finally, he rejects the majority's appeal to purpose:

The majority contends that its counterintuitive reading of “the Legislature” is necessary to advance the “animating principle” of popular sovereignty. Ante, at 24. But the ratification of the Constitution was the ultimate act of popular sovereignty, and the people who ratified the Elections Clause did so knowing that it assigned authority to “the Legislature” as a representative body. The Elections Clause was not, as the majority suggests, an all-purpose “safeguard against manipulation of electoral rules by politicians.” Ante, at 26. Like most provisions of the Constitution, the Elections Clause reflected a compromise—a pragmatic recognition that the grand project of forging a Union required everyone to accept some things they did not like. See The Federalist No. 59, at 364 (describing the power allocated to state legislatures as “an evil which could not have been avoided”). This Court has no power to upset such a compromise simply because we now think that it should have been struck differently. ...

This is a strong an orignialist/textualist opinion as anyone should hope for or expect from any Justice.  (And Justice Scalia liked it so much he joined it even though he thought the legislature didn't have standing and so the Court shouldn't be deciding the case in the first place).

Of course, it's a dissent.  So as in the recess appointments case, the question is: should we view this as disappointing, because the textualist/originalist position got "only" four votes, or encouraging, because it got as many as four (!) votes?

(I prefer the latter, because I remember when the orignialist/textualist view would get one vote.)

In any event, the Chief Justice is likely to be on the Court for a long time, and if conservative commentators were thinking for the long term it would seem more constructive to celebrate this fine opinion than to complain about King v. Burwell.

RELATED: In the New York Times, Jeffrey Rosen: John Roberts, The Umpire in Chief.  From the conclusion:

It’s understandable that liberals and conservatives are disappointed with the chief justice for rejecting positions they deeply favor. But Chief Justice Roberts’s relatively consistent embrace of judicial deference to democratic decisions supports his statement during his confirmation hearings that judges should be like umpires calling “balls and strikes.” As he put it then: “Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Although the chief justice’s statement was subsequently mocked, both the Affordable Care Act cases and the marriage equality case show that he meant what he said. Whether writing for the majority or in dissent, he believes that judges should set aside their policy views and generally uphold laws unless they clash with clear prohibitions in the Constitution. In the long term, if he continues to pursue this conception of the deferential role of the court, he may help liberals and conservatives more readily accept their Supreme Court defeats.

Agreed, but the Arizona Legislature case -- and the many others Rosen notes where Roberts has invalidated laws or executive actions -- show that the Chief has a fairly robust view of the "clear prohibitions in the Constitution," based in significant part on an originalist/textualist approach.


A bit more on Obergefell's immutability claim
Chris Green

I didn't have time on Friday to put links into my SCOTUSblog piece given the "ASAP" deadline, but here is the American Psychological Association's brief on which Kennedy's opinion relies. Surveying the rest of the briefing turns up quite a lot of other material on the immutability issue--see herehere, here, and here for some of the briefs surveying scientific literature, here for anecdotal accounts to consider alongside the Court's use of the plaintiffs' personal histories, and here at 15-16 for a brief making the same point about the APA-cited Herek survey that I made in my essay--i.e., that it actually contradicts a claim of general immutability. 

The Court's cavalier approach to the relevant facts in Obergefell would have trouble, I think, passing muster under administrative-law standards like Overton Park (requiring "adequate explanation"), State Farm (agency must "examine the relevant data and articulate a satisfactory explanation for its action"), Fox ("a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy"), or this morning's Michigan v. EPA ("reasoned decisionmaking").  In another case this morning (the execution-protocol case, Glossip) the Court reiterated that "federal courts should not embroil themselves in ongoing scientific controversies beyond their expertise." That general principle would have served the Court well last week. For much more on the relevance of standards of knowledge to judicial review, of course, see here.

Randy Barnett: Appoint More Originalists to the Court
Michael Ramsey

Reflecting on last week's decisions, Randy Barnett (guest blogging at Instapundit) says for future appointments:

The key is a demonstrated commitment to following the original meaning of the Constitution, whether that leads to upholding or invalidating a “popularly-enacted” law. Avoid those who advocate “judicial deference,” “judicial restraint,” “judicial minimalism” or who condemn “judicial activism” or “legislating from the bench.” None of those catch phrases concern how to interpret the Constitution, and those who utter these largely empty homilies about judicial role are very likely to disappoint.

More from Professor Barnett here (rejecting Jeb Bush's call  for Justices committed to judicial restraint).

I agree, if the conservative concern with last week's decisions is that they don't reflect the rule of law.  As I've argued, originalism is a way (in my view about the only way) to have a rule of law as opposed to a rule of judges.  (To be sure, it does not guarantee a rule of law, for several reasons, but it offers the possibility of the rule of law).  And of course, done right it does not guarantee conservative results.

UPDATE:  Further thoughts from Professor Barnett: Constraint vs. Deference: Two possible meanings of ‘judicial restraint’.

But what does “judicial restraint” mean?  There are two quite different possibilities:

    1. Constraint: “Judicial restraint” could refer to confining oneself to following the meaning of the text of the Constitution (and of statutes) — by which is meant its original meaning — whether this leads to upholding or invalidating properly enacted statutes; or
    2. Deference: “Judicial restraint” could refer to deferring to the will of the majority as reflected in the acts of the more “democratic” branches — i.e. “unelected unaccountable” judges should avoid wherever possible thwarting the will of the people, by which is meant the political preferences of the majority of the electorate. The emphasis here is not on the correctness of constitutional analysis, but on judicial deference to majority will.

What is of utmost importance is that these are not the same thing.

And in conclusion:

In short, because of both the ambiguity of “judicial restraint” and its historical association with deference to legislative majorities, demanding “a proven record of judicial restraint” is very likely to lead to judges who disappoint conservatives and libertarians. Republicans should not be fooled again. And the only way to avoid being fooled again is to demand judges with a proven commitment to the original meaning of the text — by which I mean the whole text, not just the parts that lead to the results they like.

My further thoughts: The problem with judicial restraint (meaning simply deference to legislative majorities) as an interpretive philosophy is that it isn't an interpretive philosophy.  No one (except those who don't believe in judicial review at all -- and they are unlikely to be appointed to the Supreme Court) thinks the Court should always defer.  Rather, they think the Court should mostly defer, unless something points strongly the other way.  But what is that "something"?  Unless "judicial restraint" judges have some interpretive philosophy (such as originalism) informing their decisions, nothing tells them what can overcome the principle of restraint.  So, most likely, they will abandon restraint when intuitively there seems a moral imperative to do so -- that is, in the most important cases.  So paradoxically the advocate of restraint becomes unrestrained when it matters most.

To be clear, I'm not saying this always happens, just that it's a risk.  And there are very good restrained originalist judges, such as the Sixth Circuit's Jeffrey Sutton (who deferred in both the first ACA case and in the same-sex marriage case).  But I'm skeptical of an approach that says, I'll be restrained except when I think it's really important not to be.  And I think that's the way a lot of judges look at it.


Edward Purcell: Democracy, the Constitution, and Legal Positivism in America
Michael Ramsey

Edward A. Purcell Jr. (New York Law School) has posted Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History (Florida Law Review, Vol. 66, No. 4, 2014) on SSRN.  Here is the abstract:     

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s theory of legal positivism in the United States after the Civil War and the way successive generations of Americans interpreted positivist ideas to develop their theories of democracy and constitutionalism. It argues that Austin inspired rival jurisprudential approaches that quickly, but misleadingly, became entangled with opposing theories of democracy and constitutionalism. Positivist ideas subsequently became the instrument first of Progressives who criticized the “Lochner Court,” then of New Deal justices who preached “judicial restraint,” then of many critics of the Warren Court, and finally of the conservative originalists in the present day who broadly condemn “liberal judicial activism.” The Article shows that, as American politics changed over the years, so too did the alleged significance and practical uses of positivism for arguments about both democracy and constitutionalism. The Article concludes that positivism contributed — and is able to contribute — little to coherent normative theories of either democracy or constitutionalism but that it nonetheless has substantial practical value for both. Positivism’s emphasis on the social and behavioral realities that underlie the law highlights the need to constantly examine the extent to which the legal system honors a society’s democratic values and constitutional principles not just in words and slogans but in the actual operations and social consequences of its legal system.

Via Larry Solum at Legal Theory Blog, who comments

Highly recommended, but readers should be warned that Purcell's understanding of positivism is historical and practical and not conceptual or contemporary.  His understanding of the association between originalism and positivism simply does not hold for contemporary versions of legal positivism--which understands all law as "positive" in the sense that it is necessarily the case that legal content is determined by social facts, not moral facts.  Thus, even the most extreme forms of living constitutionalism (for example, a form that embraced the proposition that the Supreme Court may adopt amending constructions of the constitutional text) do not (and cannot) involve anything other than positive law, albeit law that is made by the Supreme Court.


Shoba Sivaprasad Wadhia: The History of Prosecutorial Discretion in Immigration Law
Michael Ramsey

Shoba Sivaprasad Wadhia (Penn State Law) has posted The History of Prosecutorial Discretion in Immigration Law (American University Law Review, Vol. 64, 2015) on SSRN.  Here is the abstract:

This Article describes the historical role of prosecutorial discretion in immigration law and connects this history to select executive actions announced by President Obama on November 20, 2014.