Prairie Dogs and Interstate Commerce
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: District court strikes down endangered species protections for exceeding the scope of federal power.  

The endangered species is the Utah prairie dog, which, the district court held, had insufficient connections to interstate commerce.  The case is People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service.

Ronald Cass: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine
Michael Ramsey

Ronald Cass (Center for the Rule of Law ; Cass & Associates, PC ; Boston University School of Law) has posted Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine (First Amendment Law Review, Vol. 12 (Winter, 2014 Forthcoming)) on SSRN. Here is the abstract: 

This essay explains why so many law professors, most notably Harry Kalven (my own First Amendment teacher at the University of Chicago) were excited by the U.S. Supreme Court’s decision in New York Times Co. v. Sullivan (announced 50 years ago), why it was so widely embraced as a triumph for the soul of constitutional governance, and why ― despite its virtues ― the New York Times decision was a mistake in constitutional jurisprudence that set First Amendment doctrine down a path that threatened to undermine the very values Kalven embraced. It is an essay not about Harry Kalven, but about constitutional values, interpretive virtues, and unintended consequences.


Gerald Leonard: Jefferson's Constitution
Michael Ramsey

Gerald Leonard (Boston University School of Law) has posted Jefferson's Constitutions (forthcoming in CONSTITUTIONS AND THE CLASSICS: PATTERNS OF CONSTITUTIONAL THOUGHT FROM JOHN FORTESCUE TO JEREMY BENTHAM (D.J.Galligan ed., 2014)) on SSRN. Here is the abstract: 

Between 1787 and 1840, the Constitution gained a far more democratic meaning than it had had at the Founding, and Thomas Jefferson was a key figure in the process of democratization. But, while more democratic in inclination than many of the Framers, he fell far short of the radically democratic constitutionalism of his most important acolytes, Martin Van Buren and Andrew Jackson. This chapter of Constitutions and the Classics explains that Jefferson was actually much less attached to democracy and more to law as the heart of the republican Constitution. Compared to the 1830s founders of the nation’s democratic Constitution, Jefferson retained much of the elitist, law-oriented, antiparty, slavery-protective (though not pro-slavery) convictions of most of the Framers. He broke somewhat from most of the Framers, however, in taking a radical states’-rights view of the Constitution akin to that of the opponents of the Constitution. In practice, his constitutional politics as Republican leader in the 1790s and president in the 1800s built an important bridge to the democratic Constitution of his successors, even if he never fully embraced that development. And his firm defense of states’ rights, especially in connection with slavery, undermined his occasional endorsement of a very limited antislavery authority in the federal government. The ascendancy of the Jacksonian Democratic party would entrench essentially Jeffersonian constitutional principles of states’ rights and slavery protection but would substitute democratic will for reason and law at the foundation of the Constitution.

Gerard Magliocca on John Bingham and Thomas Jefferson
Michael Ramsey

At Concurring Opinions, Gerard Magliocca: John Bingham and Thomas Jefferson. Here is an excerpt: 

I think I’ve come across an interesting inflection point in constitutional discourse (or what others might call an example of intergenerational synthesis.)

In 1871, John Bingham gave an address on the House floor in support of the Ku Klux Klan Act that offered a detailed explanation of his view that Section One of the Fourteenth Amendment extended the Bill of Rights to the States.  At one point, Bingham declared:  “Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.”

Lash's Incorporation-Only View of the Privileges or Immunities Clause
Chris Green

Mike Ramsey has rightly called Kurt Lash's book from last spring, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, an "early contender for most important originalist book of 2014." Lash argues that the Fourteenth Amendment's "privileges or immunities of citizens of the United States" are those personal rights textually enumerated elsewhere in the Constitution, mostly in the Bill of Rights, but some elsewhere, like the habeas rights of Article I section 9 clause 2 (I/9/2) or  the comity rights of IV/2/1. Because "incorporation" has become the shorthand term for the use of the Fourteenth Amendment to apply rights like those in the Bill of Rights against the states--though the term itself is not the most perspicuous--I will abbreviate Lash's view of the Privileges or Immunities Clause as ITINBI: incorporation, total incorporation, and nothing but incorporation. 

Scholars devoted a great deal of attention to ITINBI following Justice Black's adoption of the view in his dissents in Adamson and Griswold and his concurrence in Duncan. However, Lash makes clear that the debate is far, far from exhausted; neither Black nor his opponents were able to consider nearly as much data as Lash has been able to consider with the aid of modern searchable databases.

Lash's version of ITINBI attaches a great deal of importance to 1868, when the Fourteenth Amendment was ratified (on the standard view, though see here for my contrarian 1867 view). On Lash's reading, 1868 is critical, however, not just for states, but for Congress as well. The Privileges or Immunities Clause functions, on Lash's reading, as a sort of rebooting of the entire Bill of Rights, so that we should interpret the words "freedom of speech," either as a restriction on Congress or as a restriction on states, based on what those words expressed in 1868, not 1791.

I should disclose that I am not a neutral observer of the Privileges or Immunities Clause: my own book on the Clause will come out next March (draft here). For what it is worth, I read the Clause to forbid states to shorten the rights of citizens of the United States relative to similarly-situated fellow citizens, either in the same state or in other states. The same-state component would reproduce much current equality law (allowing the Equal Protection Clause to focus on literal "protection of the laws," as I advocate here and here), while the other-states component would guard fundamental rights against outliers from the American tradition of civil liberty, producing incorporation of most privileges in the Bill of Rights in virtue of their prevalence in that tradition, but not necessarily in the precise form they bind Congress.

Despite our disagreements, Lash and I have a great deal in common. We both seek what the constitutional text expressed to reasonable observers at its enactment, and we both advocate the reinvigoration of the Privileges or Immunties Clause to do the work accomplished today by substantive due process. We agree that the restrictive language of the text--"of citizens of the United States"--is far more important to the Privileges or Immunities Clause than are the mere terms "privileges" and "immunities," and thus that provisions like the Louisiana Cession's promise of the "rights, advantages, and immunities of citizens of the United States" are closer to the Privileges or Immunities Clause than is the text of IV/2/1. We agree that the Privileges or Immunities Clause goes beyond comity, but does not go so far as to constitutionalize natural rights as such.

After the jump, I'll summarize the several fields of evidence that Lash's book surveys. In upcoming posts, I'll consider several categories of difficulties with either the ITINBI thesis or Lash's arguments for it.

Continue reading "Lash's Incorporation-Only View of the Privileges or Immunities Clause
Chris Green" »


Philip Hamburger on the Second Commerce Clause
Michael Ramsey

Philip Hamburger (Columbia) sends the following:

Recent posts by Mike Greve,  Mike Ramsey,  and Mike Rappaport have drawn attention to the dormant-commerce-clause question that will soon come before the Supreme Court in Comptroller v. Wynne. The constitutional question is important, and the justices therefore should consider not only the familiar Commerce Clause but also the second Commerce Clause. Yes, that’s right, there are two of them!

The details are laid out in my new (and very short) article on SSRN called “The Second Commerce Clause.” The following abstract suggests the second clause’s significance:

The Commerce Clause has long figured as the only commerce clause in the United State Constitution. It is, indeed, The Commerce Clause. Nonetheless, it has a doppelgänger—another commerce clause that inconspicuously shadows the first and reveals its outlines with unexpected clarity. And this second Commerce Clause is particularly interesting because it calls into doubt the doctrine on the so-called “dormant Commerce Clause.”

Thanks to Professor Hamburger for the tip.  It is indeed an interesting (and short) piece, pointing out a clause I had not previously thought about.


The Dormant Commerce Clause and the Exclusive Commerce Power
Mike Rappaport

Mike Ramsey has another post about the Dormant Commerce Clause (DCC), following up on my previous post and this post by Mike Greve.  Mike Ramsey attempts to set forth the strongest arguments against the DCC, with which I agree.  There is no good original meaning argument for the DCC.

There is, however, a somewhat stronger argument for an exclusive Commerce Power.  Unlike the DCC, one could conceivably conclude that the Commerce Clause provides exclusive authority to the federal government to regulate interstate commerce.  That would differ from the DCC because the exclusive authority would take away from the states all authority to regulate interstate commerce, not just the power to discriminate against interstate commerce.

While Chief Justice Marshall toyed with this argument, and there us something textually to be said for it, I still don’t think it works for three reasons.  First, the Commerce Clause does not say that it is exclusive and one would not normally infer from the language that the power was exclusive.  Second, as Mike Ramsey notes, the Constitution seems to provide for exclusive power by doing so expressly, as when it states that Congress shall have the power “to exercise exclusive  legislation in all cases whatsoever” over the District of Columbia.  Third, the Constitution seems to recognize that the states can pass laws involving interstate and foreign commerce, as it provides that “no state shall, without the Consent of the Congress, lay any Imposes or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws” (although there is a complicated counterargument involving this provision).

It is too bad that Congress does not have the exclusive commerce power, because I believe it would be better than the original meaning.  An exclusive power would make it less likely that the states would have agreed to the New Deal expanded, concurrent commerce power.  Thus, the exclusive power would have been unlikely to have been expanded into the broad scope that the current commerce power has.  With a more limited scope, the federal government would have limited authority, as would the states.  There would not be two governments exercising the same authority and neither would have complete power to create cartels.  This arrangement came close to being followed in the pre New Deal era, when the Court came pretty close to recognizing a limited federal Commerce Power that was largely exclusive.   But it is now, sadly from a policy perspective, gone with the wind.

Mitchell Berman: Judge Posner's Simple Law
Michael Ramsey

Mitchell Berman (University of Pennsylvania Law School) has posted Judge Posner's Simple Law (Michigan Law Review, 2015, Forthcoming; U of Penn Law School, Public Law Research Paper No. 14-36) on SSRN. Here is the abstract: 

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely — from the Bluebook to the law school curriculum. But the principal culprit, in Reflections as in many of Posner’s previous writings, is legal formalism and, in particular, the textualist and originalist approaches to legal interpretation associated with Justice Antonin Scalia. Indeed, the book’s centerpiece is a substantially expanded version of a scathing, previously published review of Scalia’s book, co-authored with Bryan Garner, Reading Law: The Interpretation of Legal Texts. Accordingly, this article, a review of Reflections produced for the Michigan Law Review’s annual book review issue, focuses on the debate between Posner and Scalia.

After offering a scorecard of blows landed and missed, I argue that the debate reveals two ironies. First, Posner’s criticisms often misfire precisely because he fails to appreciate the irreducible complexity of law. Despite common rhetoric, the central thesis of contemporary originalism is not about the activity denominated “interpretation.” Rather, it is fundamentally a claim about the content of law. Contemporary originalists by and large believe that what the law is — what our legal powers, duties, and rights are — is fully determined by semantic qualities of promulgated texts. What those texts say is, for that reason, what the law is. This is not true of all originalists, but it is true of the dominant (Scalian) branch. It is a picture of law of breathtaking simplicity. In short, the canard that law is simple is vastly more congenial to originalism than to whatever nonoriginalist picture of law Posner might have inchoately in mind. 

Second, if this orthodox originalist conception of law is mistaken, we are far from agreed on an alternative account. If we are ever to understand the underpinnings of legal precepts — how the normative entities that are legal powers, duties, rights, and permissions, correspond to or are produced by such facts as the enactment of legal texts, the issuance of judicial opinions, and the dispositions and behaviors of legal actors — that understanding will come, almost certainly, from advances in legal theory. Yet Posner is disdainful of legal and constitutional theory — of the field, and not only of its current practitioners. That is unfortunate. What are the determinants of legal content is a theoretical question of great difficulty. Posner should not be so dismissive of the field that tries to resolve it.

More from Eugene Kontorovich on Zivotofsky
Michael Ramsey

Eugene Kontorovich has further thoughts on Zivotofsky v. Kerry (responding to the posts noted here):

Zivotofsky  is not about recognition (I)

Zivotofsky  is not about recognition (II)

I agree that Zivotofsky is not about recognition (and therefore that the challenged statute does not infringe the President's exclusive recognition power, even if he has one).  But there's this: 

A major feature of the statute makes it exceedingly difficult to characterize it as official speech about the status of Jerusalem. The law allows citizens born in Jerusalem to choose whether to put “Jerusalem” or “Israel” on their passports. Thus it is if anything the bearer’s speech, and Congress is simply allowing the passport to be a “public forum” for citizens, like affinity license plates [on a] car.

Again, I agree ... but how does this fit into any power of Congress?  Putting it this way seems to me to show that it's not a commerce power being exercised here, or any other power that might in some circumstances allow some regulation of passports.  Congress isn't empowered to offer private citizens a forum to speak on official documents such as a passport, and permitting such speech does not serve any of the powers Congress actually has.

UPDATE:  Argument transcript here (via How Appealing); argument analysis from Lyle Denniston at SCOTUSblog here.


Andrew Friedman: Can Constitutional Drafters See the Future?
Michael Ramsey

Andrew Friedman (Independent) has posted Can Constitutional Drafters See the Future? No, and It's Time to Acknowledge That on SSRN. Here is the abstract: 

Perhaps the greatest trouble with constitutional drafting is its tendency to look backward, at the country’s own political and legal history along with international comparative sources. This makes it difficult for provisions to have a textual basis for modern technologies. While such technologies must be dealt with, they are often brought in by judges who can be unprepared for such technological analysis. This paper provides a history of “influential” constitutions and the circumstances that brought about privacy and search and seizure provisions, along with drafting recommendations that will alleviate this problem for future drafters.