Originalism and the Stability of Constitutions
Mike Rappaport

In a previous post, I discussed the view of Barry Weingast and his coauthors as to what makes for the stability of a constitution. Weingast argued that there are three basic conditions needed for constitutional stability. First, the Limit Condition: having a constitution that imposes significant limitations on what the government may do, so that people do not have strong incentives to take extraconstitutional action to prevent the other party from securing power. Second, the Consensus Condition: having a constitution that makes clear what are constitutional violations, so that the people can unite together to stop the government from taking such unconstitutional actions. Third, the Adaptation Condition: having a constitution that allows for adaptation so that when social or other changes occur, the constitution can be modified to continue to satisfy these three conditions.

I want to argue that these conditions are much better satisfied when the constitution is interpreted in an originalist way.  Here I will be talking about the U.S. Constitution.

The Limit Condition is better satisfied by following the original meaning of the Constitution. If the original meaning is not followed, then it becomes unclear what limits the Constitution actually imposes. Interpreters can modify its meaning to a significant degree.  Thus, people may fear the exercise of power by a government because that government may exercise dangerous powers that are currently not allowed, but will be permitted when the Supreme Court (or other actor) reinterprets the Constitution. 

It is true that a nonoriginalist interpretation of the Constitution might impose a significant number of constitutional limitations. But the Constitution’s original meaning also imposes significant limitations and these are worth more under originalism than the nonoriginalist interpretations are worth under nonoriginalism, since the originalist limitations can only be  changed with a constitutional amendment.

The Consensus Condition is also better satisfied by following the Constitution’s original meaning. Under originalism, there is an objective meaning to the Constitution. By contrast, under nonoriginalism, the matter turns to a significant degree under what the interpreters believe would be a good idea – interpreters who are appointed by the government. It is true that people sometimes disagree about the original meaning, but the original meaning is more constrained than the evolved meaning under nonoriginalism.

Finally, the Adaptation Condition is also better satisfied by following the Constitution’s original meaning. Unlike the judicial updating of living constitutionalism, the supermajoritarian process of constitutional amendment protects against changes in the Constitution that could pose dangers to important parts of the country. While many people argue that the supermajoritarian amendment process is too strict, John McGinnis and I maintain that it works fine so long as the Supreme Court does not supersede it with judicial updating.

Originalism and Female Presidents, Again
Michael Ramsey

The question whether the Constitution allows only male Presidents (because it refers to the President as "he" in Article II) apparently is back.  In addition to Mike Rappaport's recent post, there is excellent analysis from Rob Natelson (A woman as president? The gender-neutral Constitution) and John McGinnis (Martha Could Have Succeeded George).  And Chris Green sums it up well here, as quoted in US News

“If we take the original meaning, historically ‘he’ was used to refer to both men and women,” says Green, currently a visiting fellow at Princeton University. “The idea that ‘he’ refers only to men, and that we must say ‘he or she’ to refer to a gender-unspecified person, is new.”

Exactly right.  My comments on the issue, from a couple of years ago, are here: Dean Chemerinsky's Lame Critique of Originalism.  I wrote:

[Dean] Chemerinsky argues:

The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.

Preposterous.  I would think that pretty much anyone who has (figuratively) set pen to paper in the modern era knows that until quite recently “he” was used generically to include both men and women when the gender was unknown.  In our more sensitive times we’ve modified that practice to take into account the potential offense it gives women (rightly so, in my view, although we’ve struggled to come up with a satisfactory alternative).  But there isn’t the slightest doubt it was the grammatical custom in the framers’ era.  As Wikipedia puts it:

Problems of usage arise in languages such as English, in contexts where a person of unspecified or unknown sex is being referred to, but the most natural available pronouns (he or she) are gender-specific. In such cases a gender-specific pronoun may be used with intended gender-neutral meaning, as he has been used traditionally in English, although she is now sometimes used instead … 

If there were any doubt, the Constitution sets out (in Article II, Section 1) the specific qualifications to be President; not only is “male” not one of them, but the relevant section speaks of a “Person” with the given characteristics being eligible.

No Person except a natural born Citizen … shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years …

Moreover, the founding generation knew how to limit things to men when they wanted to: typically voting was extended to “adult male citizens” with certain qualifications. 

I’m not aware of any originalist or originalist-oriented scholar who thinks Chemerinsky's view is even plausible, much less that an originalist "would have to say" what Chemerinsky argues.

To reiterate the conclusion: no one who takes originalism seriously thinks it even plausible that the Constitution might bar women from the presidency.  This is a talking point by non-originalists who want to discredit originalism but don't bother to understand it.

And to be clear: it's not because barring women from the presidency is a bad outcome.  Of course it is a bad outcome, but originalism does not guarantee good outcomes.  Sometimes it will lead to results we will find uncomfortable under modern morality.  This just isn't one of those times.


Does the Constitution Allow a Female President? Originalism Says Yes. Some Types of Nonoriginalism May Say No.
Mike Rappaport

This might seem like an odd question, but a journalist recently asked me my opinion about the matter.  It turns out that Article II of the Constitution refers to the President as a him.  For example: “He shall hold his Office during the Term of four Years.”  If this “he” meant only a male person, there would be a strong argument that the President had to be a male.

But I believe that this interpretation is mistaken.  It is my understanding that the term “he” at the time of the Constitution had multiple meanings or usages.  While one of those was to refer to a male person, another was to use the term “he” to mean “he or she.”  Under that usage, a female President would be constitutional.

The same issue arises as to members of Congress as well.  For example, Article I, section 2, clause 2 provides “No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”  (Emphasis added.)

There are strong reasons for preferring the “he or she” meaning over the “he” meaning.  Most importantly, the Constitution contains explicit qualifications for serving in Congress and in the presidency.  These are normally thought to be the exclusive qualifications set by the Constitution.  Reading in another qualification – maleness – would thus conflict with the constitutional structure.

This conflict is especially evident in the language of Article I, section 2, clause 2 quoted above.  The provision speaks of “no person” who does not satisfy certain qualifications, thereby suggesting that persons may serve, not just males.  Moreover, the provision could have easily added that no person can serve “who shall not be a male” as a qualification.

While the original meaning appears to indicate that females can serve as members of Congress or as President, I am not sure that all versions of nonoriginalism support this result.  Consider the view that we should interpret the Constitution based on the modern meaning of its terms.  In an effort to induce writers not to use “he” to mean “he or she”, feminists and others have suggested that “he” always means a male person and does not have the “he or she” meaning.  Suppose they have succeeded in changing the meaning of the word he.  Then, under the modern meaning interpretive view, they might have had the unintended effect of prohibiting women from serving as President or in Congress.  Another example that illustrates the weakness of the view that interprets the Constitution based on the modern meaning of the words.

The Stability of Constitutions
Mike Rappaport

What makes for the stability of a constitution?  In the United States, we take stability for granted, but “the median country faces violent political change about once every eight years.”  So what promotes constitutional stability?

Over the past several years, Barry Weingast has argued (along with some other authors, especially Sonia Mittal) that there are three basic conditions that are needed for constitutional stability.  Satisfying these conditions operates to promote a self stabilizing constitution.

1. The Limit Condition. The first condition concerns the fact that citizens are fearful of governments that pose a threat to their assets and well being. When a regime threatens citizens, they often will support extra constitutional actions to prevent the government from taking hostile actions.  Self stabilizing constitutions address this problem by lowering “the stakes of politics . . . by placing limits on legitimate government actions.”  In other words, if a constitution places significant limits on the actions that the government can take, then people have less to lose if the other party prevails.  They will then have less incentive to take violent or extra-constitutional actions to prevent a government they fear from governing.

2. The Consensus Condition. The second condition allows citizens to unite together to remove officials and governments that violate the constitutional limits. Since diverse citizens may disagree amongst themselves as to what the appropriate limits are, it is important to have focal points that people will agree upon.  Thus, the clearer the constitutional rules, the more likely there is to be agreement among the people and among the different branches of the government so that they check a government that exceeds its limits.

3. The Adaptation Condition. The third condition involves how the constitution responds to the shocks, such as technological innovations and demographic change, that all countries face.  The constitution must allow for it to adapt to these changes so that the three conditions are successfully maintained over time.

This question of what makes for a stable constitution is one that most constitutional theorists have ignored.  Yet, it is an essential issue for the development and maintenance of a successful, long term constitution.  The U.S. Constitution does well in terms of these conditions.  But, as I will argue in my next post, it does much better if it interpreted according to its original meaning.

David Kopel on Guns and English History
Michael Ramsey

At Volokh Conspiracy, David Kopel: English legal history and the right to carry arms.  From the introduction: 

A few weeks ago, I joined several legal historians in filing an amicus brief about the Second Amendment right to carry arms; the case is Wrenn v. District of Columbia, currently before the D.C. Circuit. The brief addressed English legal history, and also American legal history through the 19th century. Stanford history professor Priya Satia has written an article in Slate, asserting that our description of English legal history is incorrect–that it is “incongruous” with “well-established history.” So let’s take a look at what the history really says...

(A long, interesting post, starting in 1328).


Corey Yung: Constitutional Communication
Michael Ramsey

Corey Rayburn Yung (University of Kansas School of Law) has posted Constitutional Communication on SSRN.  Here is the abstract:      

Scholars from various normative and positive perspectives endorse the notion that the Constitution is communicative of its meaning. However, there has been little discussion as to what “communication” means in the constitutional context. This Article addresses the communication gap by introducing and applying communication-based concepts and models to constitutional theory. The results of the integration of communication theory into debates about constitutional interpretation are twofold. First, the account in this Article offers a richer framework and vocabulary for ongoing debates about interpretative theory and constitutional meaning. Second, the addition of communication concepts and norms into the debate about constitutional meaning points toward a new approach to interpretation: constitutional contextualism. This flexible approach contends that the constitutional provision being interpreted, and not a pre-selected universal theory, dictates the tools that should be used to analyze it. Significantly, this approach does not seek to negate the dominant theories of constitutional interpretation. In fact, the insights of various originalist and living constitutionalist theories are essential for selecting or synthesizing which interpretive methods are preferable in specific situations. By adopting a flexible, contextual, communication-based approach to identifying the best constitutional meaning in particular cases, we can end the growing fetishization of global interpretive theories and better adapt to the real-world needs of constitutional readers.


David Berstein Reviews Philip Hamburger's "Is Administrative Law Unlawful?"
Michael Ramsey

David Bernstein (George Mason University School of Law) has posted Book Review: Philip Hamburger, Is Administrative Law Unlawful? (Law and History Review, Vol. 33, No. 3, pp. 759-760, 2015 ) on SSRN.  Here is the abstract:     

This is a review of Philip Hamburger’s book, Is Administrative Law Unlawful? [ed.: see here]. Most scholars believe that administrative law began with the rise of administrative agencies in the late nineteenth century. Hamburger, by contrast, suggests that administrative law — by which he means legally binding rules that are developed through unilateral actions by the executive branch — has existed since colonial times and beyond, and that claims of administrative autonomy are direct descendants of the claims of the English monarchy to executive omnipotence. The Framers of the Constitution were well aware of such claims, and utterly rejected them. Yet, Hamburger argues, modern administrative law embodies precisely the evils that the Constitution and its separation of powers sought to prevent. 

I predict that most readers will find Hamburger’s historical analysis compelling. Somewhat fewer will share his “originalist-ish” claim that the Constitution, properly understood, is at odds with modern administrative law. Many fewer, given pre-existing ideological commitments, will agree that the administrative state is despotic and must be dismantled, with power flowing instead back to the judiciary and Congress. Nevertheless, anyone interested in the rise of the American administrative state will benefit from this original, erudite, and thought-provoking book.


Does the Privileges and Immunities Clause Apply to the Federal Government?
Michael Ramsey

An interesting originalist analysis from the D.C. Circuit (Judge Douglas Ginsburg writing) in Pollack v. Duff (from last summer, but I missed it when it came out).  In a job announcement, the Administrative Office of the U.S. Courts said that it would consider applications from any federal employee and (bizarrely) anyone else only if they lived in the D.C. metro area. Pollack, then living in Kentucky, objected under the Article IV, Sec. 2:  "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states."

After extended analysis, the court found that the clause does not apply to the federal government.  Pollack apparently relied principally on a statement by James Iredell, which the court found ambiguous.  But the court went on to say:

To the extent Iredell’s pamphlet reflects this view [that the clause bound the federal government], it is relevant evidence of how a reasonable person might have understood the clause when the Constitution was ratified. Or, as the defendants put it, Pollack’s pamphlet is “a guide to understanding the original meaning” of the Constitution, but not a source of “rights not explicitly found in the text.” Appellees’ Br. at 27; see Noel Canning v. NLRB, 705 F.3d 490, 500 (D.C. Cir. 2013), aff’d on other grounds, 134 S. Ct. 2550 (2014) (“When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution”).

The defendants also caution that Iredell’s statement is subject to the caveat that the views expressed by either a proponent or an opponent of ratification are not necessarily indicative of how a reasonable person would have understood the text of the document. As the defendants point out, some essays authored by both Federalists and Anti-Federalists were designed to bring skeptics around to the author’s position and do not necessarily reflect the common understanding of the meaning of the text of the Constitution. See John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337, 1358–61 (1998). The defendants’ point is well taken. We note, for example, that in 1788, when Iredell authored the pamphlet Pollack quotes, he also published notes from the ratifying convention in North Carolina. The historical record shows “[v]arious Federalist speakers tinkered with” the notes from that convention before Iredell published them, so they would “serve as Federalist campaign literature,” not as an accurate account of the views expressed at the convention. James H. Huston, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 24 (1986).

After finding little else in the drafting or ratifying history to be helpful, the court continued:

We find more definitive guidance in cases decided by the state and federal courts soon after ratification of the Constitution. See Noel Canning, 705 F.3d at 501 (“The interpretation of the Clause in the years immediately following the Constitution’s ratification is the most instructive historical analysis in discerning the original meaning … because it reflects the ‘public understanding’ of the text” (quoting District of Columbia v. Heller, 554 U.S. 570, 605 (2008))).

Several interpretations of the clause are evident in the early cases and commentary. See Lash, 98 Geo. L.J. at 1259–60. As Pollack points out, at least two state courts held it prevented the federal government from discriminating on the basis of state citizenship. See Douglass v. Stephens, 1 Del. Ch. 465, 477 (1821) (holding the Privileges and Immunities Clause was “designed to restrict the powers of Congress as to legislation, so that no privilege or immunity should be granted by it to one citizen of the United States, but such as might be common to all”); Kincaid v. Francis, 3 Tenn. 49, 53 (1812) (White, J. concurring) (“It seems to us most probable that [the Privileges and Immunities Clause] was intended to compel the general government to extend the same privileges and immunities to the citizens of every State, and not to permit that government to grant privileges or immunities to citizens of some of the States and withhold them from those of others”).

The view advanced by these courts was not widely shared, however. The “vast majority of cases decided in this early period of the Republic” concluded the clause limits the extent to which a state may discriminate against nonresidents but it does not apply to the federal government. Lash, 98 Geo. L.J. at 1262 n.108; see, e.g, Livingston v. Van Ingen, 9 Johns. 507, 577 (N.Y. 1812) (Chancellor Kent, concurring) (“The provision that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states … means only that citizens of other states shall have equal rights with our own citizens …. This is a very clear proposition, and the provision itself was taken from the articles of the confederation.”); Campbell v. Morris, 3 H. & McH. 535, 548 (Md. 1797) (“When the new constitution was formed … there was reason to fear that particular states might not allow the citizens of other states the same privileges enjoyed by their own citizens; and had a provision securing them been omitted in the constitution, they might have been deprived of them”). The interpretation of the Privileges and Immunities Clause that “came to dominate case law and scholarly commentary from the Founding until Reconstruction” — and that is still evident in the Supreme Court’s more recent jurisprudence — provides the clause merely “require[s] states to grant visiting citizens some of the same privileges and immunities that the state conferred upon its own citizens.” Lash, 98 Geo. L.J. at 1260.

Congratulations to Kurt Lash for some influential originalist scholarship.

The court's last point is textual/structural: 

Finally, the location of the Privileges and Immunities Clause in § 2 of Article IV supports the conclusion that it is directed at the states and not at the national government. Article IV is the “so-called States’ Relations Article.” Baldwin, 436 U.S. at 379. Section 2 of Article IV, in addition to the Privileges and Immunities Clause, included the Interstate Rendition Clause and the Fugitive Slave Clause, both of which were concerned with comity among the states. ... If the Privileges and Immunities Clause applied to the federal government, then we might expect to find it in Article I, § 9, alongside other limitations upon the powers of the Congress to discriminate against residents of certain states, such as the Export Taxation Clause and the Port Preference Clause; in any case, it would not be in Article IV.

And in conclusion: 

Although the historical record is not pellucid, we think the weight of the evidence indicates the Privileges and Immunities Clause was not originally understood as a limitation upon the authority of the federal government. We agree with the defendants, therefore, that the geographical limitation in the AO’s hiring process is not subject to scrutiny under that clause.

So maybe originalism is our law, in this case anyway.

(Thanks the Mila Sohoni for the pointer).


Charles Cooper on Justice Thomas and the Administrative State
Michael Ramsey

At National Affairs, Charles Cooper: Confronting the Administrative State.  From the introduction: 

The Supreme Court's 2014-15 term will undoubtedly be remembered as one of the most significant of the Roberts Court. From the definition of marriage to the legality of Obamacare's implementation, the Court issued several landmark decisions that grabbed headlines and consumed commentators.

Less noticed, however, were four opinions authored by Justice Clarence Thomas that call into question the constitutionality of the massive and largely unaccountable bureaucracy that we commonly refer to as the administrative state. In bold and clear prose, Justice Thomas explained how the basic principles of our Constitution's separation of powers are incompatible with the system of bureaucratic rule that took root in the Progressive era and now reaches into virtually every realm of American life.

In Department of Transportation v. Association of American Railroads, Justice Thomas described the violence done to the structure of our constitutional system when Congress delegates its lawmaking powers to administrative agencies. In B&B Hardware v. Hargis Industries, he stressed that agencies may not, consistent with Article III of the Constitution, usurp the federal courts' judicial power. And in Perez v. Mortgage Bankers Association and Michigan v. Environmental Protection Agency, he argued that federal courts shirk their constitutional duty when they defer to an agency's interpretation of federal law. Together, the principles articulated by Justice Thomas in these opinions attack the very existence of the modern administrative state.

(Via Ed Whelan at NRO).


Nelson Lund: Promise and Perils in the Nascent Jurisprudence of the Second Amendment
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted Promise and Perils in the Nascent Jurisprudence of the Second Amendment (Georgetown Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:      

In Heller v. District of Columbia, the Supreme Court held that the Second Amendment protects the right of individuals to keep and bear arms for self-defense. In McDonald v. City of Chicago, the Court held that this right is also protected from infringement by the states under the Fourteenth Amendment. Thus, many important decisions about the reach of government’s regulatory authority will henceforth come from the federal courts. The scope of the Second Amendment right, however, has not yet been clarified, either by the Supreme Court or by a consensus of the lower courts.

This short symposium contribution sketches out several possible approaches to defining the scope of the right, and argues that one of them is better than the others, at least for purposes of adjudication under the Second Amendment. The essay argues that Judges Diarmuid O’Scannlain and Diane Sykes have shown — more clearly than the Supreme Court has yet done — the right way to decide cases in this nascent area of constitutional law.