Equal Protection versus Due Process in Obergefell v. Hodges
Michael Ramsey

This is my favorite part of the oral argument in the same-sex marriage cases (from Lyle Denniston's analysis at SCOTUSblog):

The federal government’s view is that the Court should rule in favor of same-sex marriage, based upon the Fourteenth Amendment’s guarantee of legal equality.   He [Solicitor General Verrilli] had no answer when Justice Kennedy asked him for the government’s views on whether gays should have a right to enter marriage, under the Fourteenth Amendment’s Due Process Clause, because marriage is a fundamental right.   The government was not prepared to opine on that issue, Verrilli told Kennedy. 

I like the subtle message sent here.

Among other reasons, there's a practical (though originalist-based) argument for preferring the equal protection clause over the due process clause.  A problem with finding a fundamental right to marriage unmoored from the traditional understanding of marriage is that there is no obvious stopping point.  If same-sex couples have a fundamental right to marriage, why not polygamists? Or indeed people who want to marry their brother, or their dog, or their piano?  At some point the Court would have to say what is "really" a marriage and (critically) what is not.  There is simply no way to do this on the basis of anything other than the judge's moral intuition.  Like other arguments from moral intuition purporting to rest on the due process clause, the whole enterprise is corrosive of the rule of law.  No one will think of it as anything but the Court making it up.   (This concern has been raised by commentators generally sympathetic to same-sex marriage, for example here by Elizabeth Price Foley and here by Josh Blackman.) 

But this concern has force only if one thinks of the case as being about marriage (the due process perspective) instead of being about discrimination (the equal protection perspective).  Equal protection offers a more defensible grounding, and a more defensible stopping point.  As I've argued, the key is describing sexual orientation discrimination as a form of caste legislation.  (In modern doctrinal terms, to think of laws discriminating against people of same-sex sexual orientation as targeting a "suspect class" and thus requiring a "compelling" justification.)  It seems fairly straightforward to say that sexual orientation -- but not a preference for polygamy, or for other nontraditional versions of "marriage" -- constitutes such a suspect class.  Put another way, sexual orientation discrimination can be analogized to race discrimination (clearly proscribed by the Fourteenth Amendment) in a way that laws against other kinds of non-traditional marriage cannot.  And that provides a stopping point that can be explained on legal grounds connected to the Amendment's original meaning.  


Originalism and Same-Sex Marriage Revisited
Michael Ramsey

With arguments today on the same-sex marriage cases, here are a few more thoughts from an originalist perspective.

I was interested to read the outstanding amicus brief by originalist scholars (including three of my colleagues) on behalf of the states (discussed here and here).  Despite my role of trying to develop an originalist argument for constitutional protection of same-sex marriage, I was surprised to see how much of the brief I agreed with.  As I read it, the brief accepts (a) that the original meaning of the equal protection clause reflects a rule against caste legislation; and (b) that legislation discriminating against persons of same-sex sexual orientation would be caste legislation today, even if people in the 1860s would not have looked at it that way.  The only point of disagreement, it seems, is whether laws limiting marriage to opposite-sex couples amount to discrimination against persons of same-sex sexual orientation (I say they do, and the brief disagrees).

On a related point, at Liberty Law Blog John McGinnis argues that the European perspective on same-sex marriage should be irrelevant to an originalist interpretation of the equal protection clause.  I'm not entirely sure that's right.

Briefly, the European Court of Human Rights has held that European human rights law does not require nations to recognize same-sex marriage, even though it has also held that various national laws discriminating against same-sex sexual orientation are prohibited.  Put another way, European human rights law is generally aligned with the argument in the originalist scholars' brief: discrimination on the basis of same-sex sexual orientation is prohibited, but laws recognizing only opposite-sex marriage are not prohibited discrimination.

Does this alignment support the originalist scholars' brief?  I think it does.  My argument is that laws against same-sex marriage -- given our modern understanding of sexual orientation -- are necessarily discriminatory (Jack Balkin makes a similar argument here). But the European court concludes that they are not discriminatory -- that is, that there may be good reasons to allow local jurisdictions to refuse to recognize same-sex marriage, even in a legal regime that generally bans sexual orientation discrimination.

Ordinarily this would not seem relevant to an originalist interpretation of the U.S. Constitution, but this isn't an ordinary circumstance.  The argument for constitutionalizing same-sex marriage depends on a claim about how our understanding of sexual orientation has changed and what the necessary implications of that change are; it insists that laws recognizing only opposite-sex marriage are inherently discriminatory.    But the European view shows that is not necessarily so -- a legal regime could plausibly reject sexual orientation discrimination, based on a modern understanding of sexual orientation, and yet still not require recognition of same-sex marriage.  While I don't find that conclusive, I have to admit that it seems relevant.


New Origination Clause Decision
Andrew Hyman

This is an interesting decision about the Origination Clause and standing, especially the last paragraph on page 25:

We recognize that the underlying merits of this appeal present issues of exceptional importance. Although the Origination Clause is rarely litigated, the principle it embodies—that “power over the purse” should be held by the most “immediate representatives of the people,” see The Federalist No. 58, at 350 (James Madison) (Isaac Kramnick ed., 1987)—was critical to the Framers and ratifiers of the Constitution. Furthermore, the statute before us is, of course, a statute of great and wide-ranging importance: it represents a “comprehensive scheme to reform the national markets in health care delivery and health insurance,” Thomas More Law Ctr., 651 F.3d at 534, one that “encompass[es] nine Titles and hundreds of laws on a diverse array of subjects.” Florida, 648 F.3d at 1241.

But the court concludes:

Nonetheless, it is axiomatic that, no matter how important the issue, see, e.g., Raines, 811 U.S. at 819–20, “[f]ederal courts are courts of limited jurisdiction” and “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Here, as we have explained, constitutional and statutory limits combine to prevent our exercising jurisdiction over these plaintiffs’ challenges. The Constitution’s standing requirement bars Dr. Hotze’s challenge to the individual mandate, primarily because the plaintiffs’ complaint provides no reason to conclude that Dr. Hotze’s circumstances do not fully comply with that mandate; consequently, he has not shown an injury to himself resulting from the ACA’s enactment. And a statute with a well-established history—the AIA—bars Braidwood’s challenge to the employer mandate, because the exaction imposed by the employer mandate constitutes a “tax” under the AIA, which may not be challenged through pre-enforcement suit. 26 U.S.C. § 7421(a).

Justice Scalia’s Worst Opinions
Mike Rappaport

Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion.  Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws.  Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.

Scalia’s views on the nondelegation doctrine are potentially important.  While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate.  There are several reasons for that but one important reason is that Scalia would not have gone along.

In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine.  There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine.  The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become.  Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.

Despite Justice Stevens’s apparent intent, the broader, categorical view of Chevron was adopted in the D.C. Circuit when Scalia was on that court.  When Scalia was elevated, he brought that view to the Supreme Court.  In the 1987 case of INS v. Cardoza-Fonseca, Justice Stevens – the author of Chevron – wrote that deference did not extend, in the context of the Immigration and Nationality Act, to pure questions of law (one take on the traditional view).  Evidently, Justice Stevens did not understand Chevron to have the broad meaning.  Scalia wrote a concurrence, for himself only, arguing for the broad interpretation and claiming that Chevron applied to pure and mixed questions.

At this point, it was Justice Scalia alone who adopted the broad view of Chevron.  But later that same term in NLRB v. United Food & Commercial Workers Union, Scalia was able to persuade three other justices (Rehnquist, White and O’Connor) of the broad interpretation.  And since then, the broad interpretation of Chevron has been followed at the Supreme Court.

As I have argued previously, Chevron could not be justified based on the original meaning of the Administrative Procedure Act.  Nor could it be justified based on precedent at the time of its decision.  It was largely a combination of the political preferences of the D.C. Circuit judges at the time – in favor of agencies (instead of judges) and in favor of clear rules.  Scalia’s textualism should have caused him to eschew the decision.

(Cross posted at the Liberty Law Blog)

J. Richard Broughton: The Snowden Affair and the Limits of American Treason
Michael Ramsey

J. Richard Broughton (University of Detroit Mercy School of Law) has posted The Snowden Affair and the Limits of American Treason (Lincoln Memorial University Law Review, 2015, Forthcoming) on SSRN. Here is the abstract: 

The revelations about Edward Snowden’s leak of American national security information helped to reinvigorate public rhetoric about the crime of treason, which Article III of the Constitution defines only as levying war against the United States or adhering to the enemy by giving aid and comfort. Political leaders and others regularly commented on whether Snowden was a “hero” or “traitor.” And more than one American political leader suggested that Snowden should be tried for treason. But these rhetorical episodes simply demonstrate that despite treason’s stature, numerous gaps remain in the public’s (and even in political leaders’) understanding of the rarely-invoked, rarely-discussed Treason Clause. This paper, written for a symposium on the ramifications of Snowden’s disclosures, therefore focuses on the constitutional provision that requires “adhering” to the enemy, giving them “aid and comfort” – what the paper calls Adherence Treason, which is the provision most likely at issue in a treason case involving actions like Snowden’s – and examines the relevance of the actor’s mental state to the interpretation and application of the Treason Clause. Drawing on the Supreme Court’s World War II treason cases, the paper examines treason in light of complicity doctrine in the criminal law. It demonstrates how information that reaches the enemy does not constitute treason – even if the information actually aids the enemy, as Snowden’s disclosures could have done – in the absence of a specific intent to betray America, which is the mens rea required for treason and which Snowden appears to have lacked. Still, when viewed in light of complicity law, even the narrow standard for American treason could be implicated by contemporary aid-to-the-enemy cases that are distinguishable from Snowden’s, such as the terrorist-aid cases that are now prevalent but are being prosecuted under the material support statutes instead. These terrorist-aid cases, especially when combined with the modern technology that can make it easier for one to communicate with and assist the enemy, could potentially keep the Treason Clause alive, but only in narrow circumstances where legally sufficient aid and the intent to betray coalesce.


Anita Krishnakumar: The Sherlock Holmes Canon
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) has posted The Sherlock Holmes Canon (64 Geo. Wash. L. Rev., forthcoming (2015)) on SSRN.  Here is the abstract:

Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a statutory interpretation would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend that interpretation. Failure to comment arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation is advanced that arguably would change the status quo. Surprisingly, this canine canon of construction has received little theoretical attention — and what little attention it has received has tended to be positive, assuming that the canon leads courts to follow congressional intent. But there are several practical and theoretical problems with the assumptions underlying the canon. This essay examines how courts employ the Sherlock Holmes canon in practice and explores the canon’s normative and theoretical implications in detail. Ultimately, it argues that the Sherlock Holmes canon should be invoked only in rare cases, when there is special reason for courts to expect or require Congress to comment on a change in the law.


Ernest Young: Federalism as a Constitutional Principle
Michael Ramsey

Ernest A. Young (Duke University School of Law) has posted Federalism as a Constitutional Principle (University of Cincinnati Law Review, forthcoming) on SSRN.  Here is the abstract:

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and institutional checks powered by political opportunism are important in maintaining the federal system, that system is unlikely to survive and flourish unless Americans continue to feel a meaningful degree of loyalty to their states as distinctive political communities.

Also from Professor Young:  The Volk of New Jersey? State Identity, Distinctiveness, and Political Culture in the American Federal System.  Here is the abstract:

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and psychological support to sustain itself.

This article is the first comprehensive effort to assess whether contemporary American states are meaningfully distinctive from one another and whether contemporary Americans identify with their states. The death of state identity is an empirical claim, but no proponent of that claim has ever marshalled empirical evidence to support it. It is also a claim unique to legal scholarship: Scholars in political science, history, economics, cultural psychology, and other disciplines have developed extensive literatures on state political cultures. This article surveys those literatures and collects evidence on the states’ geographic, demographic, and policy diversity, states’ impact on political preferences, relative trust in state and federal institutions, state’s distinct historical narratives, and the impact of individual mobility among the states. I conclude that reports of the death of state identity are greatly exaggerated — and that has important implications for American federalism.


Michael Stokes Paulsen & Luke Paulsen: The Great Interpreter
Michael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) and Luke Paulsen (Princeton University '14) have posted The Great Interpreter (First Things, 2015, forthcoming) on SSRN.  Here is the abstract:      

This essay examines the constitutional legacy of President Abraham Lincoln, the most important constitutional interpreter in our nation's history. The Civil War was -- in addition to so much else -- a defining act of national constitutional interpretation. The war was fought over fundamental questions of the Constitution's meaning, and over who would have final authority to determine that meaning. The most significant issues of antebellum constitutional dispute -- the present and future status of slavery; the question of who possessed constitutional power to determine that status; the nature of the "Union" and the question of whether a state lawfully could secede; matters of national-versus-state constitutional supremacy and "sovereignty" -- received their final "adjudication" not in any court of law but on the battlefields of the Civil War. It was the case of Grant v. Lee, reduced to final judgment at Appomattox Court House 150 years ago, that constituted the nation's determination of these issues, and that determined also the entire constitutional future of the United States. None of this would have happened had Lincoln not considered himself bound by his oath to advance his independent constitutional views concerning Dred Scott, slavery, Union, national constitutional supremacy, and presidential military powers -- views that frequently placed him at odds not only with the views of nearly half the nation, but often with the Supreme Court as well.


Two Questions on Congress' Power to Declare Natural Birth
Michael Ramsey

Jim Henderson (Just Sayin) sends these questions on the presidential eligibility clause:

If Senator Cruz’s eligibility depends upon his attaining “natural born citizen” status as the result of a grant of that status by Congress, what provision of the Constitution empowers Congress to do so?  

I realize the obvious answer should be the Naturalization Clause. The recent discussions [by Neal Katyal and Paul Clement] offer that the English parliamentary expansions of “natural born subject” status lend credence to a view that the Framers intended to afford to Congress, within the power to provide a uniform rule of naturalization, the power to declare persons not “natural born” by circumstance and common law, to be “natural born” by statutory status. This argument has an appeal, but as I contemplated the possibility that the Constitution extended such a power to Congress, additional questions arose. One I will refer to as the Presidentinator Question. The other is the more common limited powers question.

As to the limited powers question, we know, and should agree, that the general government set up under the Constitution is one of limited, donated, express powers. So given the more common and general understanding of “naturalization,” why isn’t the correct construction the obvious one? By obvious, I do mean the one limited to the power to make citizens of aliens.

As to the Presidentinator Question, what principle that can be justified in the law, in the history of the law, that would confer a power on Congress to create statutory “natural born citizen” status for certain categories of individuals, sufficient to meet the Qualifications Clause requirements of Article II, but that would not also empower Congress to pass this amendment to the Naturalization Act:

”Any naturalized citizen of the United States, having been elected to serve as the Governor of one of the States, shall have the status of, and in all respects be considered,  a ‘Natural Born Citizen.’”

(Note: here is his initial post on the Cruz question, and a followup here).

On the first point, Parliament's power to convey "natural born" status on those who were not natural born subjects under the common law was understood as part of its naturalization power.  The acts that conveyed that status were called acts to "naturalize" certain persons or groups of persons.  As a result, the founding generation in America likely understood the power to make a "Rule of Naturalization" as including the power to declare by statute who might be a citizen (naturalized) by birth.  And, as confirmation, the 1790 Act that made such a declaration was called a "Naturalization" act. 

The second question is a whole lot harder.  I suppose one could say that Congress does have this power (that is, to declare someone with no connections to the United States at birth to be, retroactively, a natural born citizen).  But that would be highly problematic in terms of how we understand the purposes of the presidential eligibility clause.  If the purpose of the clause was to prevent European noblemen (including, perhaps, specific European noblemen) from scheming to become President, that purpose would not be served if Congress could declare them natural born citizens retroactively.  They would just need to scheme to obtain the requisite declaration from Congress.  So I accept the premise of the question, which is that the clause should not be read to give Congress such a power.

One possibility is to say that the power to declare natural birth cannot be exercised retroactively. Unfortunately, there is no historical basis for that proposition.  The English statutes declaring natural-born status for persons born abroad were frequently retroactive (e.g., 4 Geo. II, ch. 21 (1731)).  That is, they said that persons born in specified circumstances were declared to be natural born subjects, whether already born or born in the future.  (The statute of 4 Geo. II, ch. 21 conveyed natural-born status on persons "born ... or which shall hereafter be born" abroad to an English father).   And some of the statutes conferred natural born status on specific living people.  Since the whole basis for Congress' power to declare natural birth stems from Parliament's power to declare natural birth, I see no way to say Congress' power can't be retroactive when Parliament's power obviously was.

My answer instead is this: Congress is limited to recognizing natural-born status for people with some connection to the United States at birth.  That limit is established by Parliament's practice, which was only to convey natural born status upon persons born abroad whose parents (or at least one of them) were English subjects.  Parliament never passed a naturalization statute anything like the one posed in the hypothetical above (with one exception).

The exception is significant and confirms the general practice.  In the 1708 naturalization statute (7 Anne, ch. 5 ), Parliament gave natural born status to all European protestants who would move to England and take allegiance to the English monarch.  But this grant was repealed three years later because of “divers Mischiefs and Inconveniences,” see 10 Anne ch. 9 (1711), and was not repeated.  I think it plausible to conclude that the 1708 Act was regarded as in excess of Parliament's proper naturalization power, and that the general view saw Parliament's (and thus Congress') power to declare natural birth as limited to persons with connections through their parents at birth.

So my answer to the second question is that the hypothetical statute is unconstitutional because it conveys natural born status on someone who had no connection to the United States at birth -- a power not generally exercised by Parliament and thus not included in Congress' naturalization power.

Cass Sunstein: How Star Wars Illuminates Constitutional Law (and Authorship)
Michael Ramsey

At the New Rambler, Cass Sunstein (Harvard) has this review of  How Star Wars Conquerer the Universe: The Past Present, and Future of a Mulitbillion Dollar Franchise, by Chris Taylor (Basic Books 2014): How Star Wars Illuminates Constitutional Law (and Authorship).

(Thanks to Michael Perry for the pointer).