02/09/2015

We the People of the United States I: One People in a Country of Distinct States that are United
Mike Rappaport

One of the key arguments made by constitutional nationalists is that the Constitution provides that “We the People of the United States . . . do ordain and establish this Constitution.”  The idea is that a single people throughout the country as a whole established the Constitution and therefore sovereignty resides at the national level in that people.  Moreover, this national sovereignty negates any inferences that might otherwise follow from the idea that the Constitution consists of a compact of states.  While this is certainly one interpretation of this language, it is certainly not the only one.  And here I want to suggest an intermediate understanding – one that is in between national and states rights sovereignty.

We the People of the United States has two concepts in it: (1) the People and (2) the United States.  Each of those ideas has two possible interpretations.   The People might refer either to a single people of the nation or to the separate peoples of the different states.  Similarly, the United States might refer to a single national country – as France does – or it might refer to a country that consists of multiple states.  In the latter case, the meaning of the United States would be similar to the meaning of United Nations – an organization that consists of multiple different nations.

The nationalist view works best if both of  these concepts have the nationalist interpretation – if it is one people and a single national country.  The states right view works best if both of these concepts have the compact between states interpretation – if it is multiple peoples and a country consisting of multiple states.

While it is possible to view both concepts in either way, I believe that the stronger interpretation of people is the national view and the stronger interpretation of the country is the states view.

We the People of the United States is best understood as referring to a single people.  After all, if the Framers had intended for the Constitution to reflect the actions of multiple peoples, it could have easily provided “We the Peoples of the United States.”  But it does not say that.  The better reading is that it establishes a single people.  Also supporting this conclusion is the Tenth Amendment, which says that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The United States, however, is best understood as referring to a country consisting of multiple states.  The Constitution uses the term as a plural noun.  The Constitution provides that “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”  This suggests that the United States was referring to a group of individual states that were united together.

It is sometimes said that it matters that the Constitution used the term the United States rather than listing the 13 states in the way that the Articles of Confederation did.  An early draft of the Constitution, produced by the Committee of Detail, provided "We the people of the States of New Hampshire, Massachusetts . . .  do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”

While this language was changed, it is likely that it was not changed for a substantive reason.  Instead, listing the individual states would have been a problem if some of the original 13 did not ratify (as was the case initially with both North Carolina and Rhode Island).   Under the plural understanding of the United States, We the People of the United States pretty much means the same thing as “We the People of the States of New Hampshire, Massachusetts, etc.”  In both cases, there is a single people consisting of individual states that are united together.

In my next post, I will discuss some of the implications of this analysis of the Constitution’s language.

Ronald Turner: A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education
Michael Ramsey

Ronald Turner (University of Houston Law Center) has posted A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education (62 UCLA L. Rev. Disc. 170 (2014)) on SSRN. Here is the abstract:

How would Justice Antonin Scalia, an avowed and prominent originalist, have voted if he were a member of the U.S. Supreme Court at the time of the Court’s seminal 1954 decision in Brown v. Board of Education? In a public appearance Justice Scalia stated that he would have voted with Justice John Marshall Harlan, the lone dissenter from the Court’s 1896 validation of the separate-but-equal doctrine in Plessy v. Ferguson. Additionally, in his recently published book, Justice Scalia stated that Justice Harlan’s dissent in Plessy is “thoroughly originalist” and, in a 1990 dissenting opinion, noted that Plessy was “upheld only over the dissent” of Justice Harlan, “one of our most historically respected Justices.” This Essay examines and criticizes Justice Scalia’s reliance on Justice Harlan as iconic authority for the proposition that Brown can be squared with Justice Scalia’s original public meaning variant of originalism.

And from the core of the argument (footnotes omitted):

"[L]ike most of his contemporaries, Harlan believed in the centrality of race and in the legitimacy of racial thinking. . . . Although Harlan was highly unusual in the courage, integrity, and decency he showed in racial matters, he nonetheless remained a person of his time.” He joined the Court’s pre-Plessy decision holding that a state criminal law’s penalty enhancement for adultery and fornication engaged in by black-white couples did not violate the Equal Protection Clause. And, three years after Plessy, Justice Harlan wrote the Court’s opinion in Cumming v. Richmond Board of Education.  In that case, the Court held that a county school board did not violate the Equal Protection Clause when it closed an all-black high school and continued to operate a high school for whites. The school board’s “separate and unequal scheme” was deemed to be reasonable and therefore constitutional.

In light of Harlan’s views on white superiority and his prior rulings, what does Justice Scalia mean when he says that he would have voted with Justice Harlan in Plessy and characterizes the Harlan dissent as “thoroughly originalist”? What is originalist about Justice Harlan’s dissent? One possibility is that Justice Scalia agrees with Justice Harlan that the issue of the constitutionality of state mandated racial segregation in railway cars concerned the civil but not the social rights of African Americans. If Justice Scalia does not recognize the Reconstruction-era distinction between civil rights and social rights, the originalist ground for disregarding the views of that day and time remains unclear. If he is cognizant of and accepts the civil-social distinction, he must conclude that attending a desegregated school is a social, and therefore not a constitutionally protected, right.

UPDATE:  The article is also available on the UCLA Law Review website, here.

Thanks to Michael Perry for the pointer.

02/08/2015

Samoan Citizenship on Monday
Michael Ramsey

On Monday the D.C. Circuit (Silberman, Sentelle, and Brown -- as high-powered a panel as one can draw) will hear arguments in Tuaua v. United States, the Samoan citizenship case in which I joined a law professors' amicus in support of the plaintiff.  My prior discussion is here and here.  Briefly, the issue is whether people born in American Samoa, a U.S. territory, are U.S. citizens at birth under the Fourteenth Amendment.  Oddly, a statute says they are not, but we think the Constitution says they are ("All persons born ... in the United States and subject to the jurisdiction thereof, are citizens of the United States ...").  Somewhat like Noel Canning and recess appointments, the case pits what I believe to be a powerful originalist/textualist argument against a longstanding but unexamined assumption.

At Just Security, Steve Vladeck has an overview of the case and discusses a different amicus (this one, by various academic luminaries including Gary Lawson, addresses the Insular Cases, on which the government relies; the brief I joined addresses the original understanding of citizenship in the Fourteenth Amendment).

02/07/2015

Richard Reinsch Replies to Randy Barnett
Michael Ramsey

Continuing this discussion, Richard Reinsch has this post at Liberty Law Blog: Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett.  The core of the response is pretty much summed in this sentence:  "So if judges, on the basis of a robust, natural-rights-protecting Privileges or Immunities Clause, can nullify state laws conflicting with said rights, we still need to know how judges will identify these rights."  And in conclusion: 

Justice Kennedy has said that prohibitions on the legal recognition of gay marriage are basically a pretextual basis for discrimination. He is dealing, in effect, with bigots all the way down. Is Kennedy right? If so, then aren’t we right back to the point I made in my initial post: ever new dimensions of liberty arise, and a wise justice knows of their substance.

We are told that a philosophy of judicial engagement will not lead to dueling natural rights jurists usurping republican government. I won’t believe this until they tell me what rights they see.

Sean Francis Bigley: The Constitutionality of the State Secrets Privilege
Michael Ramsey

Sean Francis Bigley (Legal Aid Foundation of Los Angeles) has posted The Constitutionality of the State Secrets Privilege: The Reynolds Privilege in Originalist Context on SSRN. Here is the abstract:

The following essay analyzes the state secrets privilege in its present incarnation, an evidentiary privilege capable of causing pre-discovery dismissal, in order to determine whether it can be reconciled with the original meaning of the Constitution. Part I traces the judicial origins and explanations of the privilege, in order to define its scope and effects at present. Part II discusses the textual, structural and historical arguments in favor of the constitutionality of the present incarnation of the state secrets privilege. As will be explained later, the constitutional text permits, implicitly, the use of the state secrets privilege, in its capacity as an adjunct to the executive power. Second, the constitution’s structure necessitates the existence of such a privilege. The nature of the judicial and legislative branches, confronted with the exigencies of statecraft, especially in light of the shortcomings of the Articles of Confederation, required a unitary executive capable of controlling and prioritizing information implicated by matters of foreign affairs, even by restricting the flow of information to Congress and the Courts. Finally, presidential practice, judicial acquiescence and the understandings of the framing generation augur for the privilege’s constitutional legitimacy. When judges have confronted its exercise, they have, by and large, abdicated any ability to countermand it. Rather, they have tied its use to two sources, the Anglo-American common law of evidence and the structural position of the executive within the constitutional framework. This article analyzes the latter source, to show that courts are correct to say that the privilege “performs a function of constitutional significance.”

02/06/2015

Frederic Bloom & Nelson Tebbe: Countersupermajoritarianism (UPDATED: Larry Solum Responds)
Michael Ramsey

Frederic Bloom (University of Colorado Law School ; Brooklyn Law School) and Nelson Tebbe (Brooklyn Law School) have posted Countersupermajoritarianism (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation.

In this Review, we press two main arguments. First, we contend that McGinnis and Rappaport’s core thesis sidesteps critical problems with elevated voting rules. We also explain how at a crucial point in the book — concerning Reconstruction — the authors trade their commitments to supermajoritarianism and formalism away. Second, we broaden the analysis and suggest that constitutional change can and should occur not just through formal amendment, but also by means of social movements, political mobilizations, media campaigns, legislative agendas, regulatory movement, and much more. Changing the Constitution has always been a variegated process that engages the citizenry through many institutions, by way of many voting thresholds, and using many modes of argument. And that variety helps to make the Constitution good.

UPDATE:  At Legal Theory Blog, Larry Solum has extensive critical comments.

02/05/2015

My Response on the Boehner/Netanyahu Invitation
Michael Ramsey

At Constitution Daily, Nicandro Iannacci has a good overview of last week's blog-driven constitutional debate regarding Prime Minister Netanyahu's address to Congress: An invitation to constitutional conflict? (surveying the views of David Bernstein, Peter Spiro, Seth Barrett Tillman (on this blog), Gerard Magliocca, Ryan Scoville and me). 

In this post I want to briefly respond to Seth Barrett Tillman's views on the other side.  To recap, my view is that (a) Congress lacks an Article I, Section 8 power to receive foreign diplomatic agents, at least absent the President's approval; (b) the President has diplomatic power from Article II, Section 1's vesting of executive power; (c) moreover, specifically as to this situation, the President has exclusive power to receive ambassadors and other public ministers; and (d) all this is confirmed by George Washington's conduct as President, as he claimed exclusive power to deal with representatives of foreign nations.

Professor Tillman principally takes issue with points (a) and -- especially -- (c):

“Public minister” in everyday modern American-English might extend to all foreign government officials. However, as I understand it, back in 1788-1789, the language “other public Ministers” extended to diplomatic officials having lesser status or rank than “Ambassadors”. That is (I suspect) the reason “public Minister” follows “Ambassadors” in Article II, Section 3. There are further diplomatic officials having even lower status than “public Ministers”; they are called “consuls”. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power); Article 3, Section 2, Clause 1 (extending the judicial power to “Ambassadors, other public Ministers and Consuls”); Article 3, Section 2, Clause 2 (same). ...
 
As an abstract matter, the answer to the original query should be resolved as a competition between two sets of implied powers: on the one hand, the President’s power to act as the sole channel of official communications between the national government and foreign powers, and, on the other hand, Congress’ power to inform itself and to maintain exclusive control over access to its physical facilities.
 
On the Article II, Section 3 point, I agree that "public minister" was sometimes used at the time in a technical way to refer to lesser diplomatic officials.  But it would be odd -- to the point of incoherence -- to use it this way in the Constitution, so that the protections accorded ambassadors and lower ranking diplomats did not also encompass other high-ranking diplomats.  I think Article III, Section 2 cuts in exactly to opposite way from Professor Tillman.  Consider, in this regard, its grant of original jurisdiction for cases affecting "Ambassadors, other public Ministers, and Consuls" [the latter being very low ranking diplomats].  It seems wholly implausible that the Constitution would give the Supreme Court original jurisdiction over cases involving consuls but not over cases involving a nation's foreign minister acting in a diplomatic capacity, since the point was to put the most sensitive cases directly to the Court.  Rather, the list seems clearly designed to encompass all representatives of foreign nations, of whatever rank.  The reception clause omits consuls (because they rank too low for the President to be bothered with them), but in other respects it is parallel: all major diplomatic representatives are received by the President.  It would make no sense to give the President an exclusive power and duty to receive mid-level diplomats but not high ranking ones. 
 
Rather, I think "minister" was used generally to mean a diplomatic representative of whatever rank. Ambassadors were called ministers -- hence the "other" in "Ambassadors and other public Ministers").   Diplomatic representatives ("ministers")  who were not ambassadors -- whatever their status -- were "other" ministers.  And reading the clause to mean "ambassadors and other diplomatic representatives" makes perfect sense of both the reception clause and the original jurisdiction clause, conveying on the President (and, in a different respect, on the Court) full power in matters concerning diplomatic representatives of whatever description.  So while there may be a possible narrow reading, there is also a possible broad reading, and the broad reading is the only one that makes sense in the context of the reception clause (and the original jurisdiction clause).
 
Finally, as to Congress' power, I agree that Congress generally may have inherent power to inform itself about matters related to its enumerated powers (derived from Parliament's power, I assume).  But once the communication is not just with an ordinary person but with the representative of a foreign nation, it's a different matter.  Relations with foreign nations are executive in nature, as described by Montesquieu and Blackstone, among others.  I would be fairly surprised if Parliament had thought it had power to communicate with representatives of a foreign nation over the king's objection.  Thus unlike ordinary information seeking, such communications are not a traditional inherent power of a legislature; for Congress to have them, they would have to be granted expressly.  Perhaps individual members of Congress may communicate individually and informally on their own behalf, but an appearance before Congress as a whole, formally assembled, is an official act of Congress, not the private act of a member, and so requires a specific constitutional source of power.

02/04/2015

Natural Rights, Substantive Due Process and Originalism
Michael McConnell

[Ed: For this guest post we welcome Michael W. McConnell, the Richard & Frances Mallery Professor at Stanford Law School, Director of the Stanford Constitutional Law Center, and Senior Fellow at the Hoover Institution.  This is a comment on the exchange between Richard Reinsch and Randy Barnett, noted here.]

Originalists should beware of any claim that substantive due process has roots in natural rights jurisprudence from the founding period. To our founders, the social compact was an exchange. Certain natural rights were relinquished in exchange for a more effectual protection for the natural rights which were retained (plus positive rights). The only way to know what rights were relinquished and what rights were retained is to examine the terms of the Constitution (and the relevant state constitution). Substantive due process, by contrast, posits that some (unspecified) set of rights are so fundamental that they cannot be relinquished. It is not logically possible to treat “natural rights” as congruent with “substantive due process rights” because this would render the social compact unintelligible.

That is why defenders of the Constitution said a bill of rights would be harmful. The enumeration of some natural rights would, by the expressio unius principle, relinquish the others. If natural rights may be relinquished by inference, they surely may be relinquished by explicit legislation that comports with constitutional allocations of power. The founders believed that natural rights would be protected by a combination of a carefully limited enumeration of powers and a robust republican form of government.

The Ninth Amendment was Madison’s solution to the expressio unius problem. Because of the Ninth Amendment, it would be a mistake to assume that because a subset of natural rights were expressly enumerated, the others were denied or disparaged. But this did not transmute unenumerated natural rights into constitutional rights. They remained natural rights, which would control only when specific, properly enacted positive law did not abrogate them. Unenumerated natural rights have the same legal status they had before enactment of the bill of rights.

I will not multiply citations of authority, but this understanding of natural liberties finds corroboration in the impeccable authority of the transmittal letter from the Constitutional Convention to the Congress on September 17, 1787: “Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.” In other words, in the making of a constitution, the people “give up” a share of their natural liberties “to preserve the rest.” Which rights are given up and which are preserved is a political choice, dependent on circumstance and constitutional objectives, made through constitution drafting and subsequent legislation.

Our founders believed in natural rights. They also believed that natural rights were trumped by specific and authorized positive law. The notion that substantive due process is a modern version of natural rights theory is historically inaccurate.

Lawrence Solum: The Fixation Thesis
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted The Fixation Thesis: The Role of Historical Fact in Original Meaning on SSRN.  Here is the abstract:      

The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice—paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis—the claim that the linguistic meaning (or communicative content) of the constitutional text was fixed when each provision was framed and ratified. Although the Fixation Thesis is a basic assumption of almost every version of originalism or textualism, it has never been the explicit focus of an extended examination and defense. This essay remedies that lacunae by providing a precise formulation of the fixation thesis, making the affirmative case for fixation, and answering potential objections. The most important claim made by the essay is that the Fixation Thesis is entailed by our common sense understanding of how communication works. Communicative content is created by using conventional semantic meanings (fixed by linguistic practices at the time words are used) and context (which is fixed by the understanding of author and reader at the time a writing is created).

The essay proceeds in five steps. Part One clarifies the Fixation Thesis by situating it in the content of contemporary debates about originalism. Part Two states the affirmative case for the fixation thesis and articulates several versions of the argument corresponding to different members of the originalist family of constitutional theories. Part Three provides additional clarification and answers objections. Part Four examines rival theories of constitutional meaning that deny fixation. Part Five explores two examples, “cruel and unusual punishment” and “privileges or immunities of citizens of the United States.”

Professor Solum presented an earlier version of this paper at the University of San Diego Originalism Works in Progress Conference earlier this year.  He's too modest to say it on his blog, so I will: Highly Recommended.  Download it while it's hot!

02/03/2015

More from Ed Whelan on Originalism and Same-Sex Marriage
Michael Ramsey

At NRO, Ed Whelan: Originalism, Marriage, and a Black Sable Ferret (commenting on the debate between Ilya Somin and Orin Kerr noted here, and also this post by me).

In response to my claim that  "a win for same sex marriage on [a purported originalist basis] would be a win for originalism, even if one is not persuaded," he objects:  "It’s no 'win for originalism' to reduce it to something that has no intelligible content, to something that can be manipulated to achieve any result that living constitutionalists desire."

I am not persuaded.  First, the originalist argument for same-sex marriage is not easily transposed into other fields; it depends on the particular history and meaning of the equal protection clause and the changed understanding of sexual orientation.  I would not equate it to breaking down the barriers between originalism and living constitutionalism.

Beyond that, I think it is a win for originalism that everyone (it almost seems) wants to speak its language and invoke its arguments, even if they do so poorly or implausibly.  That is an enormous shift from not so long ago: As I remember too well, this was not the case when I was in law school, and perhaps not even when I began teaching.  At that time, few people (or at least few law professors or Supreme Court advocates) felt it necessary, or even helpful, to make originalist arguments; originalism was the domain of the iconoclast, or worse. True, as it has become more mainstream, it has become part of lawyers' and law professors' arsenals, whether or not they really embrace it.  But I would rather be co-opted than mocked.

RELATED:  Ed Whelan also has two interesting posts on same-sex marriage and judicial supremacy: Madison, Jefferson, and Roy Moore? and Re: Madison, Jefferson, and Roy Moore?  From the latter: 

Consider this hypothetical: In the immediate aftermath of the Supreme Court’s Dred Scott ruling, a federal district court, applying the principle of Dred Scott, enjoins a northern state from enforcing a law providing that a slave who is voluntarily taken by his master into the state thereby becomes free. Must state officials comply with the injunction?

If your answer to the question is no (or maybe not), then you agree (or might agree) with [Alabama Chief Justice Roy Moore, speaking in the context of same-sex marriage] that state officials have a right to resist federal orders they regard as constitutionally unsound (even as you of course might disagree about his application of that principle).

My answer is yes (under the Constitution).  Although the state official might be morally obligated to resign rather than comply, or even (in the hypothetical) act extraconstitutionally.