Barry Friedman on Justice Scalia and the Police
Michael Ramsey

At The Atlantic, Barry Friedman (NYU):  How Did Justice Scalia Shape American Policing? Donald Trump wants a Supreme Court appointee like the formidable late judge. But Scalia had a controversial and sometimes conflicted opinion on law enforcement. 

From the discussion:

[W]hen it came to the parts of the Constitution that governed policing ... Scalia often was the critical swing vote. And not infrequently he was the one writing the majority opinion.

One place Scalia’s passing might very well spell change is with regard to the Miranda ruling. ... Conservatives hate the Miranda rule, and Scalia was no exception. ...

When it comes to searches and seizures, though—the lifeblood of policing, governed by the Fourth Amendment to the Constitution—the picture of Scalia is far more complicated.

In recent years, Scalia emerged as the Fourth Amendment’s greatest champion, often ruling against the police. He was particularly steadfast in guarding the sanctity of the home, or limiting police use of new technologies. He wrote the main opinion in United States v. Jones, holding that the Fourth Amendment governed long-term GPS surveillance of a suspected drug dealer’s car. And he wrote a critical opinion saying that the police have to get a warrant before they use new technologies to gather information from inside homes—in that case the police had used a thermal heat sensor to figure out the defendant was growing pot with heat lamps. ...

[But] even though Scalia could be extremely protective of Fourth Amendment rights, the real curiosity is that he didn’t seem to think you should have any remedy if your rights were violated. He loathed the exclusionary rule—which requires tossing out evidence collected in violation of the Constitution—and played a big part in dismantling it. ...

Some commentary on Justice Scalia has accused him of following his policy preferences despite his purported attachment to originalism.  As this essay illustrates, criminal procedure is one area that is hard to square with that thesis.  If one is looking for pro-police or anti-police tendencies, Scalia seems all over the place.  But thinking in terms of originalism, his record is neither "conflicted" nor "a curiosity."  To take two of Professor Friedman's examples, Miranda and the exclusionary rule are judicial inventions; that, and not partiality to the police, accounts for Scalia's hostility to them.  But the Fourth Amendment, given its original meaning, plausibly imposes material limits on modern police practices, and so Scalia was much more sympathetic to such claims.

Ironically, Professor Friedman concludes:

Merrick Garland, President Barack Obama’s pick for the Court ... is a former prosecutor whose rulings typically are pro-police. In a Garland-for-Scalia swap, the police actually might have more license, rather than less.

(Via How Appealing).


Ian Bartrum: Wittgenstein's Poker
Michael Ramsey

Ian Bartrum (University of Nevada School of Law) has posted Wittgenstein's Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism on SSRN. Here is the abstract:   

The last two decades have seen an explosion in scholarship exploring the intersection between linguistic indeterminacy (usually vagueness), as analyzed within the philosophy of language, and legal interpretive theory. This essay claims that such indeterminacies are an inevitable, and even valuable, part of contested language games—such as our contested constitutionalism—which employ linguistic uncertainty to further different communicative or political ends. It further suggests that two particular types of constitutional indeterminacy—intentional contemporary ambiguity and incidental evolutionary vagueness—present substantial problems for public meaning theories of originalism. Resolving an intentional ambiguity seems to require at least some recourse to authorial intentions, which are beyond the scope of public meaning originalism; and historical usages can offer little guidance when new constitutional problems reveal a latent textual vagueness.

When combined with the problems of intentional vagueness—which the New Originalists already concede to modern construction—these types of indeterminacy seriously undermine the practical value of public meaning originalism as an interpretive method. Indeed, many—if not most—of our non-trivial constitutional disputes are contests over just these sorts of textual uncertainties. In all of these cases, then, the New Originalist must either resort to intentionalist theories—with all of their well-known epistemological and jurisprudential problems—or concede the question to modern judicial construction. This, in turn, means that public meaning originalism’s claims about the existence of “empirical” constraints on our constructive practices can inform only a small, and relatively uncontroversial, set of actual constitutional controversies.

An interesting and challenging paper.  Without dismissing the problems of indeterminacy in public meaning originalism, I would make two quick points.  (1) Most originalist approaches do not suppose that there will be 100% certainty on most questions; the inquiry is rather which of two competing interpretations more probably reflects the original meaning.  (2) Although public meaning originalism focuses on the meaning of the text, that does not prevent originalists from consulting historical sources, both as to the common usage of words and as to the goals and interpretations of the enactors.  These points, among others, make the inquiry more manageable than it might appear.

Also see some of my further thoughts on originalism and indeterminacy here.


Originalism, Changing Meanings, and Stable Meanings
Mike Rappaport

One of the criticisms of originalism by historians is that originalism fails to take into account that word meanings change over time.  In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed.  Therefore, originalism is problematic because it assumes that traditional word meanings are stable.

Unfortunately, this charge by historians turns out to be largely mistaken.  If some originalists assume that word meanings were stable, then that would be an argument against those originalists.  But it would not condemn originalism generally, since nothing in originalism requires that word meanings be stable.  And in fact, I believe very few, if any, originalists assume that words meanings are unchanging.

How does originalism properly address the issue of changing meanings?  If an originalist were seeking to interpret a constitutional term, then the originalist would look to the meanings that existed at the time of the Constitution.  If the traditional meaning continued to exist at that time, then that would certainly be one possible meaning.  But a good originalist would also look and see if a new meaning had developed.  If a different meaning had developed, then of course the originalist would consider that as another possible meaning.

If there were two possible meanings, that would mean the term was ambiguous.  The originalist should them employ the interpretive rules at the time to resolve the ambiguity.  One consideration in choosing between the two meaning is which one was more common.  Another would involve the evident purpose of the provision.  A third would be the structure of the document.  There are, of course, others.

The criticism of originalists for assuming stable meanings are often wide of the mark.  It is sometimes claimed that the originalist argument, which maintains that the Executive Power Vesting Clause provides the President with a limited foreign affairs powers, assumes stable meanings.  But this is not true.

This originalist interpretation argues that the language vesting the executive power in the President provides him with the powers that executives, such as the King of England, typically enjoyed in the 18th Century, minus the executive powers that were given to the Congress (such as the power to declare war) and minus the executive powers that were limited in other ways (such as the power to appoint executive officers, which was to be exercised only with the advice and consent of the Senate).

While this interpretation relies on the traditional meaning of executive power, it does not simply assume that meaning continued.  It shows that this meaning fits the structure of the Constitution, providing for an interpretation that fully accounts for the foreign affairs powers of the federal government.  And it also shows that the traditional understanding of executive power continued to be used in the Philadelphia Convention itself as well as after the Constitution was adopted by officials as different as Thomas Jefferson and Alexander Hamilton.

Stable meanings certainly make the job of originalist interpretation easier.  But good originalism does not assume that they exist and originalist interpretation can be done without them.

Jonathan Adler: The Senate Has No Constitutional Obligation to Consider Nominees
Michael Ramsey

Jonathan H. Adler (Case Western Reserve University School of Law) has posted The Senate Has No Constitutional Obligation to Consider Nominees (George Mason Law Review Developments, forthcoming) on SSRN.  Here is the abstract:      

After the death of Justice Antonin Scalia, Senate Republicans announced they would refuse to consider any nomination for his seat on the Supreme Court prior to the next presidential election. In response, some have argued that the Senate has a constitutional obligation to act on a Supreme Court nomination. This argument finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous.

I agree.


The Tiers of Scrutiny: A Public Choice Analysis
Mike Rappaport

In a prior post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power.

One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit the discretion of the court.  If racial classifications are subject to strict scrutiny, it makes it difficult for the Court to allow them, even the ones that the Court might approve of.  Instead, a Court seeking to maximize its discretion would employ entirely vague standards – or individual edict like judgements – so that it could do as it pleased.

There are, however, two problems with this approach.  The major problem is that this approach would make it difficult for the Supreme Court to control the lower courts.  The Supreme Court cannot review every decision of the lower courts.  In fact, it can only review a small percentage of their decisions, even in the politically salient cases.  The tiers of scrutiny – as well as doctrine generally – is a device the Court uses to control the lower courts.  This seemingly rule like jurisprudence places real limits on the inferior courts.

Another problem with exceedingly vague standards is that it would reduce the legitimacy of the Supreme Court.  If the Court were seen as simply announcing its preferences, that would reduce its legitimacy. If the Court can argue that its decisions follow from more general principles, it can be seen as enforcing a prior jurisprudence.

While this approach has these advantages for the Supreme Court, it also is not all that constraining in the way that the Court implements it.  As Justice Thomas suggested, the Supreme Court applies the approach in an inconsistent way, thereby generally allowing it to reach the results it prefers.

Ed Whelan on Randy Barnett's "Our Republican Constitution"
Michael Ramsey

At NRO, Ed Whelan has a four-part review of Randy Barnett's Our Republican Constitution (Broadside Books 2016).  Here are part 1, part 2, part 3 and part 4.

Parts 3 and 4 are, I think, the most important, and illustrate the two core differences between libertarian orignialism and more conventional originalism.  First, from part 3:

Barnett particularly criticizes the “Thayerian” version of “judicial restraint” or “judicial deference,” and the readers of his book might well be left with the impression that the only viable alternative is Barnett’s “judicial engagement.” Such an impression would be mistaken.

In an 1893 law-review article, Harvard law professor James Bradley Thayer adopted an extreme view of deference under which a federal court should not strike down a federal law merely because it “conclude[s] that upon a just and true construction the law is unconstitutional”; rather, it should do so only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question.”

As I have observed before, among the many originalist proponents of judicial restraint, there might be one Thayerian. ...  As law professor John McGinnis has explained in “The Duty of Clarity,” there is ample middle ground between Thayerian deference and no deference. Specifically, McGinnis makes the originalist case for a more modest “deference theory” that “requires the judiciary to decline to displace legislation unless it conflicts with a meaning of the Constitution that can be clearly ascertained after applying all legal methods.”

The amount of judicial deference owed to the political branches is a major point of disagreement among originalists.  I agree that it is a spectrum rather than a dichotomy.  But I would add that the McGinnis model is not necessarily the preferred model, even among conventional originalists.  For example, I wouldn't say that Justice Scalia (for all his exalting of democratic values) was deferential in applying actual provisions of the Constitution (as opposed to propositions he regarded as invented by judges).  For example, he voted in favor of the constitutional challenge to Obamacare, where more deferential originalist judges such as Jeffrey Sutton and Laurence Silberman voted the other way.

Next, from Part 4: 

Barnett contends that the[ ] Due Process guarantees mean that any person subject to a law that restricts his life, liberty, or property must have a “fair opportunity to contest whether [that law] is within the ‘proper’ or ‘just power’ of a legislature to enact and therefore carries the obligation of a law.” (P. 228 (emphasis in original).) A law that is “irrational or arbitrary” is by definition “not within the just powers” of a legislature—even if it is enacted through an exercise of a constitutional power. (P. 228.) Further, if a power is being exercised for a just purpose, “we must next ask if the restriction of liberty is necessary to serve” that purpose. “Strict logical necessity is not required,” but “some degree of means-ends fit must be shown.” (P. 231.)

My basic question for Barnett is: Where does all this come from? How, in particular, does it flow from the original-meaning principles that he advocates?

Even more than judicial deference, I think this is the fault line between libertarian originalists and conventional originalists. While sometimes mis-described as a question of deference, it's really a question of substance: does the due process clause give judges the ability to assess the substantive rationality of a law?  (Scalia, representing conventional originalism, thought no -- even though he was, as noted, not especially deferential in applying other constitutional provisions).  Even here, though, there may be a spectrum of views.  See this post from yesterday.


John McGinnis on the Constitution and Rent Seeking
Michael Ramsey

At Liberty Law Blog, Johm McGinnis: The Constitution Constrains Rent-Seeking Without Eliminating Politics.  From the introduction:

Greg Weiner, in a characteristically thoughtful post, suggests that libertarian constitutionalism wrongly eliminates democratic politics from the polity in favor creating a republic of reason where rationality is judicially determined. While I am not a libertarian, but a classical liberal, I think that the correct reading of the U.S. Constitution does impose important constraints on the politics of rent-seeking. But it does not suppress politics so much as redirect it.

Professor Weiner correctly observes that many libertarians want to use the Constitution to prevent rent-seeking. The provision commonly referenced for this purpose is the Fourteenth Amendment. Note first, however, that the Fourteenth Amendment’s provisions apply only to the states. Thus, under a proper reading of our Constitution, the federal government may countenance rent-seeking within the scope of its enumerated powers. The difference between the strictures on states and on the nation may comport with the greater confidence that the extended republic will not be dominated by particular factions.

Moreover, at least under the appropriate reading of the Fourteenth Amendment, the restrictions on state legislation are relatively modest. The state must show that the legislation possesses a public regarding rationale and is not simply an instrument to transfer of resources or opportunity from one group to another. The great error of Williamson v. Lee Optical was that it permitted judges to make up a rationale for the legislation, and one that was not actually pleaded by the state, let alone supported by any evidence. Under the proper interpretation of the Fourteenth Amendment, legislation does not have to be perfectly rational, but it does have to some palpable basis in the public interest, such as health and safety. ...


Amy Coney Barrett and John Copeland Nagle: Congressional Originalism
Michael Ramsey

Amy Coney Barrett (Notre Dame Law School) and John Copeland Nagle (Notre Dame Law School) have posted Congressional Originalism (University of Pennsylvania Journal of Constitutional Law, forthcoming 2016) on SSRN. Here is the abstract:     

Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents -- are so well baked into government that reversing them would wreak havoc. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution’s original public meaning. The problem is especially acute for an originalist member of Congress. While the stylized process of adjudication narrows the questions presented to the Court, in Congress the question of a measure’s constitutionality is always on the table. And because framing constraints do not narrow the relevant and permissible grounds of decision as they do in litigation, evaluating a bill’s constitutionality arguably requires analysis of every possible constitutional flaw.

We argue that Congress may employ a working presumption that super precedents are constitutional and thereby refrain from re-examining them. Presuming that a super precedent is correct is different from endorsing its correctness. If the precedent is erroneous, the latter course gives priority to precedent rather than text. The former course, however, is a technique for avoiding the question whether the precedent is right or wrong. Congress may assume arguendo that well settled precedents are correct and focus its attention on questions that are politically salient. If the Court reconsiders super precedent in response to litigants, Congress does so in response to constituents. The responsibility for initiating a correction of constitutional error lies with the People. If the People want Congress to examine the soundness of constitutional precedent, they must convince it to do so.


Andrew Coan: The Foundations of Constitutional Theory
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted The Foundations of Constitutional Theory  on SSRN. Here is the abstract:     

Normative constitutional theory asks at least two distinct questions: How should judges and other officials approach constitutional decision-making? And what counts as a good reason — or “normative foundation” — for adopting a particular approach? The two questions are obviously related, but the first has filled libraries while discussion of the second has been largely unsystematic and ad hoc. There is no well-recognized taxonomy of the types of reasons on which an approach to constitutional decision-making might be premised. Nor is it widely appreciated that competing approaches might rest on the same type of normative foundation or that multiple normative foundations might be invoked to support a single approach to constitutional decision-making.

This Article proposes a taxonomy organizing the normative foundations of constitutional theory into four distinct categories: metaphysical, procedural, substantive, and positivist. This taxonomy clarifies that theoretical disagreement can concern the proper approach to constitutional decision-making, what counts as a good reason for adopting a particular approach, or both. It also permits analysis of the attractions and limitations common to each type of normative claim, revealing significant points of overlap between apparently divergent approaches. Positivist originalism, for instance, may in some respects share more in common with positivist common-law constitutionalism than with metaphysical originalism. These points of overlap should serve as the basis for new and more productive discussion among theorists who have previously considered themselves completely at loggerheads.

(Note: this is a different paper from this one, noted earlier).


Josh Blackman: Government by Blog Post
Michael Ramsey

Josh Blackman  (Houston College of Law) has posted Government by Blog Post (11 Florida International University Law Review 389 (2016)) on SSRN.  Here is the abstract:  

During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.

Each of these executive actions — implemented through formal notice-and-comment rulemaking or informal social-media blogging — came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.

One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.

This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.

(Via Josh Blackman's Blog).  Video of the symposium is here.  Professor Blackman's slideshow is memorable.  My much-less-memorable contribution  is this article: Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements.