The Supreme Court's OT 2014-15: Not Much Originalism (Plus a Correction)
Michael Ramsey

As the Supreme Court opens its 2014-15 term, my projection is: this is not going to be a big year for originalism.  Unlike last year, which featured major cases like Noel Canning and Bond, I think there is significantly less on the docket of originalist interest.

Two cases have some potential: Zivotofsky v. Kerry, the Jerusalem passport case, and Arizona State Legislature, the meaning-of-legislature case.  (Both have been discussed previously on this blog.)  Here are the questions presented:

Zivotofsky v. Kerry:

Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

With little precedent on point, this one is likely to get into questions of the original meaning of executive power and early historical practices.  I will have more to say in due course.

Arizona State Legislature v. Arizona Independent Redistricting Commission:

(1) Whether the Elections Clause of the United States Constitution [Art. I, Sec. 4]  and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.

Again, there's not much precedent directly on point, so the debate is likely to involve questions about what the framers meant by "Legislatures" of the States.

On a quick review, I don't see other cases likely to produce significant originalist discussion.

RELATED CORRECTION:  Garrett Epps writes that my prior post on the Arizona Legislature case misread his post; he did not intend to indicate support for the lower court (which read "Legislature" to include an independent commission not controlled by the legislature).  To the contrary, he says, he thinks it's a close case.  Apologies. 


Brad Masters: Reconciling Originalism with the Father of Conservatism
Michael Ramsey

Brad Masters (Brigham Young University - J. Reuben Clark Law School) has posted Reconciling Originalism with the Father of Conservatism: How Edmund Burke Answers the Disruption Dilemma in N.L.R.B. v. Canning (Brigham Young University Law Review, Vol. 2013, No. 4) on SSRN. Here is the abstract: 

Recent scholarship argues that conservative and originalist jurisprudences contradict each other. In some cases, original, founding principles are invoked to overturn long-standing traditions. When that occurs, conservative values, such as respect for precedent, are challenged. The problem, as that scholarship points out, is that the same judges that espouse this disruptive originalism also claim to be conservative. As the polemic goes, good Burkean conservatives should reject originalism in favor of a precedent-based approach. This Comment challenges that scholarship by engaging in a more thorough analysis of Edmund Burke's philosophy. After a deep examination of Burke's thoughts on precedent and his doctrine of prescription, I argue that arguments pitting Burke against originalism go too far. Instead, Burke's attitude toward “canonized forefathers” leaves room for an approach that simultaneously respects precedent while drawing upon founding wisdom. I offer an articulation of this approach, which I call Burkean Originalism, in this Comment. Essentially, Burke would resolve these difficulties by investigating both founding wisdom and the established tradition. With a presumption in favor of precedent, Burke would only invalidate longstanding tradition when doing so is consistent with founding principles, reliably determined, and if the consequences are not substantial.


Robert Turner (and Jon Stewart) on War Powers
Michael Ramsey

At Constitution Daily, Robert Turner (Virginia): The So-Called “Islamic State” and the Constitution: What Can the President Do? Part One and Part Two.

On executive power, he writes:

... [I]n interpreting an 18th century document, it is important to understand that words sometimes change their meaning over time. Thus, modern readers might be surprised to learn that a signer of the Constitution described it in a letter to a friend as “awful”—unaware that the word originally meant “to fill one with awe” (or, in the modern vernacular, awesome). Thomas Jefferson once used the words “terrific character” to mean “cruel” and “vindictive,” which was true to the Latin root terrificus (“to frighten”). Today, awful and terrific have very different meanings, and we can be led astray if we fail to appreciate such changes when we seek to understand historic document.


A classic example of this is the term “executive power.” Today, most Americans assume that when in Article II, Section 1, of the Constitution the Framers vested “The executive Power” in the president, it conveyed the power to “execute” or carry out the laws that would be enacted by Congress. But, to men raised on the writings of John Locke, Montesquieu, and Blackstone, the term “executive power” also included the general management of the nation’s external intercourse—what Locke described as authority over “war, peace, leagues, and alliances.” As Professor Quincy Wright noted in his classic 1922 treatise, The Control of American Foreign Relations: “[W]hen the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant . . . .”

Thus, when in April 1790 President George Washington asked Secretary of State Thomas Jefferson where the Constitution had vested the details of foreign policy not specifically addressed in the instrument, Jefferson noted that the Constitution had “declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate . . . .” From this, he reasoned: “The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”

Of course, I agree (see here [111 Yale L.J. 231], which sets out a good bit of the historical evidence Professor Turner is relying on).  Professor Turner and I disagree a little on how this plays out in the war powers area (see his earlier post here), although as to the Islamic State we agree that it doesn't all need to be resolved, as there's a fair argument Congress has approved.

RELATED: At CNN, Paige Hymson: How Thomas Jefferson would have handled ISIS -- relying on Professor Turner to suggest that, as with the so-called Barbary pirates in 1801, congressional approval may not be needed because ISIS has declared war on the US: "'Jefferson's belief was that when war is declared against the United States we don't need Congress' approval to fight back,' said Turner."  I agree with that too.

ALSO RELATED:  Via Kristen Boon at Opinio Juris, here's Jon Stewart's take, on the Daily Show.


Supreme Court Will Hear Argument in the Arizona Legislature Case
Michael Ramsey

On Thursday the Supreme Court indicated that it will hear arguments in the Arizona State Legislature case that Seth Barrrett Tillman and I discussed here earlier.  From Lyle Denniston at SCOTUSblog:  Fate of Non-Partisan Redistricting on the Line (and this related commentary at Constitution Daily).  (Note this is an appeal not a certiorari, but the Court could have decided it without full briefing and argument, as the appellees suggested).

In addition to the merits, the Court will consider the question of legislative standing.

I've generally been pretty dismissive of legislative standing without thinking about it too much.  But this case seems like as good a claim for legislative standing as could be found: the plaintiff is the legislature as a whole, not just some individual members; the case concerns the (alleged) loss of a legislative privilege (the ability to draw House districts) that's of specific interest to the legislature; the case turns on the interpretation of a constitutional provision, not on the assessment of difficult facts or application of a political judgment; and a court can easily redress the injury (if it finds an injury) by invalidating the redistricting commission.

Scott McLamee Reviews Zephyr Teachout's "Corruption in America"
Michael Ramsey

In Inside Higher Ed, Scott McLemee: Snuffing Corruption, part 1 and part 2 (reviewing Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (Harvard University Press 2014)).

Thanks to Seth Barrett Tillman, who is quoted in the reivew, for the pointer.


Jack Balkin on Scalia and Noel Canning
Michael Ramsey

At Balkinization, Jack Balkin: Is Noel Canning a Victory for the Living Constitution? Constitutional Interpretation in an Age of Political Polarization.

This is a outstanding long post and no excerpt could begin to capture it, but here is the introduction:

When Noel Canning v. NLRB was decided last June, several commentators noted that the 5-4 vote marked a victory for living constitutionalism (represented by Justice Breyer's opinion) and a defeat for originalism (represented by Justice Scalia's concurrence, which read like a dissent).

In fact, Breyer's opinion isn't particularly living constitutionalist. It is traditionalist. It is strongly rooted in past practice. It argues that we should not disturb conventions that are of long-standing. If living constitutionalism is the idea that the Constitution should be interpreted to keep abreast of changing times and conditions, Breyer’s Noel Canning opinion doesn't seem all that interested in *that* project. The opinion argues, instead, that there is a long history of interpreting the recess appointments clause in a particular way, and we should retain it unless there are strong considerations otherwise.  If you applied the logic of this opinion to same-sex marriage, you would quickly discover that Breyer sounds much more like a conservative traditionalist than a living constitutionalist.  Indeed, I can easily imagine parts of Breyer's opinion being quoted by conservatives to criticize liberals in later cases.  (You read it here first.)
Conversely, Scalia's opinion, although framed in the language of originalism and textualism, is the truly revolutionary opinion. Here (in marked contrast to many of his other writings) Scalia is skeptical of arguments from tradition. He argues that deferring to an imagined tradition tends to favor stronger parties (Presidents, who can act decisively) over weaker ones (Congress, which faces collective action problems). He asserts that there is no unbroken history of established practice. And even if there is such a history, (1) it may not be worthy of our respect because it reflects past usurpations of power; and (2) we should disregard it in favor of the text. Scalia’s argument in Noel Canning is radical, not in the sense of being left-wing, but radical in the sense of seeking to return to the root of things and argue them once again based on first principles.  But of course, that’s what originalism is—radical, not conservative.
And from the conclusion:
Whether one agrees with Scalia or not, his opinion is far more attuned to the new realities of party polarization than Breyer's majority opinion, and therefore it has a far greater claim to be an attempt to keep the interpretation of the Constitution in line with changing circumstances. Because of political polarization and conflict extension, presidents will increasingly be tempted to use recess appointments as a means of circumventing the other party, whether the opposition party controls either the Senate or (as in this case,) the House.  In order to prevent these end-runs from occurring, the Court must adopt an interpretation of the Recess Appointments Clause that prevents most recess appointments.  Although it is couched in the language of originalism and textualism-- and therefore would seem to be a timeless claim about the correct interpretation of the Constitution at any point in history--it is an adaptation to changed circumstances.  But that should hardly be surprising. Self-styled originalist arguments by legal officials and movement advocates-- no matter how much they may present themselves as timeless truths--are often responses to perceived defects in current conditions.  That is because—although originalist academic theory may be separated from politics—originalism in practice is very often tied to reform projects in politics.


John McGinnis on Republican Constitutionalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Constitutional Interpretation in Republican and Mixed Regimes.  From the introduction:

In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods.  This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty.  In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history.   The distinctive interpretative method of republican constitutionalism is originalism:  the meaning chosen by the people when the constitution is passed binds the people at later times.

In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element. Support for a mixed regime can be traced to Aristotle, and, in modern constitutionalism, the aristocratic element is supplied by the judiciary, whose current judgments constrain the people.


Originalism and Ideology
Mike Rappaport

I missed this article – Originalists, Politics, and Criminal Law on the Rehnquist Court by Rachel Barkow – when it came out, but I thought this part of the abstract was interesting:

By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. [Mike Rappaport insertion: the attitudinal model holds that the votes of the Justices are based on their political views, not the law.]  While a review of those cases confirms the conventional view that the Court's liberal bloc voted for criminal defendants more frequently than the Court's conservatives in non-unanimous cases, the more interesting pattern is the variation among the Court's conservatives in non-capital criminal cases in which the five conservatives disagreed among themselves. In the fifty-five non-capital criminal cases in which the Court's conservatives did not vote as a bloc, Justices O'Connor, Scalia, and Kennedy each voted for the defendant twenty-four times, Justice Thomas voted for the defendant in eighteen cases, and Chief Justice Rehnquist in fourteen cases. In several of the most important constitutional decisions of that period, including but not limited to the jury cases, the conservative originalists voted for defendants while the pragmatist conservatives ruled for the government. The jury cases are therefore part of a larger pattern that reveals the relationship between originalism, politics, and criminal law to be far more complicated than is commonly believed.

The question whether the justices vote based on their ideology or on the law is an interesting one.  I tend to have mixed views on this matter.  On the one hand, I believe that justices do, as a general matter, vote based on ideology in cases where they care about the outcomes.  That, of course, does not mean the opinions read that way, but in my view the underlying cause of their votes is ideology.

That said, I believe that the justices will vote based on a view of the law if they are strongly committed to that legal view.  Thus, Justices Scalia and Thomas are committed originalists and therefore will often vote based on their view of the original meaning, even if it leads them to vote in favor of specific results which they would not otherwise support.  In the block of cases reviewed in this article, Justices Scalia and Thomas supported the original meaning of (1) the right to a jury trial in a criminal case and (2) the right to confront witnesses, and this original meaning often provided more protection to criminal defendants than court precedent did.  As a result, these justices ended up voting for criminal defendants more often than their ideologies would otherwise have suggested.

Christopher Walker: An Empirical Study on Agency Statutory Interpretation
Michael Ramsey

Christopher Walker (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Faithful Agency in the Fourth Branch: An Empirical Study on Agency Statutory Interpretation (Stanford Law Review, Vol. 67, Forthcoming) on SSRN. Here is the abstract: 

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. Such broad delegation creates a principal-agent problem in the modern administrative state. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected regulatory state is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent theory to the regulatory state, we know very little about whether federal agencies are faithful agents.

This Article is the first comprehensive investigation into this black box of agency statutory interpretation. The Article reports the findings of a 195-question survey of agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Of the 411 officials sent the survey, 128 responded, and their responses shed considerable light on the tools and approaches they use to interpret statutes and draft regulations. The findings uncovered both challenge some theories on agency statutory interpretation while reinforcing others. As Congress, courts, and scholars gain more insight into how federal agencies use interpretive rules, legislative history, and judicial deference doctrines in agency statutory interpretation, the principal-agent relationship between Congress and federal agencies should improve as should the judicial branch’s ability to monitor and faithfully constrain lawmaking in the Fourth Branch.


Two Essays from Judge Jeffrey Sutton
Michael Ramsey

Judge Jeffrey Sutton (Ohio State University (OSU) - Michael E. Moritz College of Law; U.S. Court of Appeals for the Sixth Circuit) has posted Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) on SSRN. Here is the abstract: 

Review of Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (2013).

In claiming that Americans are looking for rights in all the wrong places, Professor Emily Zackin targets two flawed mindsets: (1) that the exclusive source of new individual rights is the federal Constitution, as opposed to the state constitutions; and (2) that constitutional rights in general are exclusively negative, just libertarian prohibitions on governmental action, not affirmative calls for the government to act.

The first point returns to a once dominant, then forgotten, now reemerging, insight — that constitutional rights do not originate solely in the U.S. Constitution or come only from decisions of the U.S. Supreme Court. There are fifty-one constitutions and fifty-one high courts, and all of them protect a wide variety of individual rights. The second point, the central thesis of Zackin’s book and the useful insight offered in it, acknowledges that the American constitutional law tradition focuses on negative protections — structural and individual-rights limitations on government — but claims that this perspective does not describe that tradition in full. To get the full picture, she urges, one must account for a strain of positive constitutional rights dating from the nineteenth century and found in most state constitutions, rights that operate by compelling governments to act, not by prohibiting them from acting. To support the point, Zackin offers three examples of positive-rights traditions in the states’ constitutions: the right to a free and adequate public education, the rights to safe working conditions and fair pay, and the right to a clean environment. The book purports to tell what is, not what should be. But some will take Zackin’s description to suggest, if not to call for, a norm-changing view: that the American constitutional tradition ought to account for such positive rights and appreciate the possibility of more.

Also from Judge Sutton: Courts, Rights, and New Technology: Judging in an Ever-Changing World (NYU Journal of Law & Liberty, Vol. 8, pp. 260-278, 2014) on SSRN. Here is the abstract: 

Friedrich A. von Hayek was primarily an economist and political philosopher, but I plan to discuss another side of him: Hayek the constitutional theorist. Hayek had a lot to say about constitutions in general, and the American Constitution in particular.

Note: A version of this essay was presented at the Ninth Annual Friedrich A. von Hayek Lecture at New York University School of Law on October 17, 2013.