The Originalism Blog

Andrew Hyman Replies to David UphamMichael Ramsey

Andrew Hyman replies to this post by David Upham, continuing their conversation on whether a constitutional protection for interracial marriage is best located in the equal protection clause or the privileges or immunities clause:

The contract provision of the 1866 Civil Rights Act was sometimes invoked in that era against laws banning interracial marriage, and the Equal Protection  (EP) Clause was sometimes invoked to support that statutory provision.  Thus, there was no need to invoke the EP Clause directly, as Professor Upham suggests.

Moreover, I don't see how it is suggested by the text of the Privileges or Immunities (P or I) Clause that the word "citizens" refers to anything more than the citizens subject to the clause, rather than citizens of previous generations as Professor Upham suggests.

Professor Upham says that Congress (not just the states) must be bound to respect the privileges protected by the P or I Clause, by virtue of the Comity Clause in Article IV.  But that is  not how the Supreme Court has interpreted the Comity Clause (which requires little more than that states treat visitors equally and that citizens be allowed to go and enjoy privileges and immunities in other states), and such a broad interpretation would render the P or I Clause superfluous.

Regarding Dred Scott,  Professor Upham notes that Chief Justice Taney mentioned that black citizens would be entitled to some rights that are not enumerated in the federal Constitution, but that was in Taney's discussion of privileges and immunities of state citizenship under the Comity Clause when a person travels to another state and is thus entitled to equal rights.  Therefore, I don't think that Professor Upham has come to grips with the common ground in Dred Scott that I pointed to and quoted, regarding the privileges and immunities that are enforceable against the federal government.

Note:  Further discussion in the comments on Professor Upham's initial post at Liberty Law Blog.

David Upham Responds on Privileges or ImmunitiesMichael Ramsey

David Upham sends this response to Andrew Hyman (background: Professor Upham has this post at Liberty Law Blog, and this longer article, on the Fourteenth Amendment and interracial marriage.  Andrew Hyman commented here, arguing that the protection for interracial marriage is best seen as arising from the equal protection clause, not the privileges or immunities clause).  Professor Upham writes:

The silence as to the Equal Protection Clause, both in my blog post and my article, arises from two causes.  First, the silence is appropriate because the historical record is silent.  I am aware of no one, whether for or against the Amendment, whether for or against black citizenship, whether for or against racial-endogamy laws, who noted any possible conflict between such laws and the enjoyment, of all persons within a state's territorial jurisdiction, of the equal protection of the laws. 

In contrast, there is significant evidence that some persons identified the Privileges or Immunities Clause as the particular clause of the Amendment that might adversely affect racial-endogamy laws. 

Unfortunately for our disagreement, participants in the adoption and early interpretation of the Amendment had the annoying habit of not clearly distinguishing the effects of the four clauses of Section 1.  So in some cases, Section 1 as a whole was indiscriminately invoked.

Second, the silence arises from my avoiding the need  to both assert and defend, against all possible objections, a theory of the "privileges and immunities of citizens of the United States."   I provide a very partial account here as to the antebellum understandings (and the plural is important) of the "privileges and immunities of citizens":  http://ssrn.com/abstract=2107460 .

Here I can briefly respond to four of his objections. 

1. A privilege of citizens of the United States must be found in the Constitution.  I believe this does violence to the text and the known history of our federal Constitution.  American citizenship is anterior to the Constitution.  The Constitution is the creature of the citizenry, and not the other way around.  American citizenship arose, at least as early as 1776.  See, for instance, Article I's durational citizenship qualifications. 

2. Congress must be bound to respect such privileges.  Agreed, though such an obligation arises either from the express text of the Constitution (such as the Privileges and Immunities Clause--which plainly binds the federal government as well as the states) or from principles coextensive with the Constitution itself--the presuppositions or "backdrops" (to use Stephen Sachs's phrase).  Congress would have no authority, for instance, to prohibit its citizens from participating in the territorial sovereignty of the people--that is from traveling, residing, purchasing real estate within the United States--even if the Constitution consisted exclusively in the first three articles.

 3. My theory, which relies on Corfield [ed: i.e., Corfield v. Coryell, see here], supports "unenumerated" rights that are open to judicial activism.  Not really, the rights are enumerated throughout the Anglo-American legal tradition, principally the state constitutions--they have been enjoyed in ALL free governments and in ALL the united states at the Founding.  To identify these rights may be tedious, even difficult, but these privileges have a strict, conservative definition.  They admit of no purported right to abortion or to redefine marriage, for instance.

 4. Dred Scott is inapposite.  To the contrary, Chief Justice Taney's opinion seems to identify the following rights that free blacks would enjoy, as citizens of the United States, if they were citizens; all of these privileges, I believe would satisfy the Corfieldian definition, but some of which are not enumerated separately in the federal Constitution: (1) to travel into and sojourn in each state, (2) to purchase and hold real estate, (3) to exercise the rights of free speech and assembly, (4) to bear arms, (5) to be exempt from racially-discriminatory criminal laws, (6) to intermarry with white citizens.

A World Without ChevronMike Rappaport

Let me complete my set of posts on Chevron by explaining what legal doctrine would look like without Chevron.  Chevron was justified in part based on the view that the prior doctrine was a mess because it left no guidance as to whether deference would be given to an administrative agency in any specific case.  That Chevron has turned into a doctrine with tremendous uncertainty is both ironic and another reason not to like it.

There are two possible doctrines that would replace Chevron.  The first is simply not to confer deference on an agency unless there is a clear indication from Congress that such deference was intended.  Thus, if Congress specifically provided for such deference then the courts should confer it.

An example of this comes from the Fair Labor Standards Act, which exempted “outside salesman” from the overtime provisions of the Act.  Significantly, Congress did not definte the term outside salesman, but delegated authority to the Department of Labor to issue regulations “from time to time” to “define and delimit” the term.  Congress here was clearly allowing the agency to determine the scope of the term.  But in the absent of such an explicit provision one would not infer any deference for the agency.   

A second way of replacing Chevron would be to employ a doctrine that was widely but not always employed prior to the case.  Under this doctrine, agencies enjoyed deference as to mixed questions of law involving agency statutes, but not as to pure questions.  This doctrine would not involve excessive uncertainty.  This doctrine might actually be legally authorized if one concluded that it were widely followed and made part of the APA.  That is, when the APA says that courts should decide all questions of law that it somehow incorporated this background understanding.  I am skeptical, but it is possible.

In the end, though, I don’t think there is any original meaning or textual argument for Chevron.  And the doctrine exacerbates the problem of combining legislative and executive power.  The Supreme Court should get rid of it.       

(Cross posted at the Liberty Law Blog)

David Strauss on Amar's "America's Unwritten Constitution"Michael Ramsey

In the Harvard Law Review (Vol. 126, No. 6, April 2013), David A. Strauss (Chicago) reviews America's Unwritten Constitution by Akhil Amar: Not Unwritten, After All?  From the review:

Several things about this book are particularly striking. First, despite the book’s title, the star of the show is, in fact, the written Constitution. Many principles that one might think are unwritten turn out — when Amar is done with them — to be in the written Constitution itself, once you read the written Constitution the right way. That is not true of each of his unwritten Constitutions, but I think it can fairly be described as one of the main themes of the book — not surprisingly, given Amar’s well-known earlier work.

Second — again despite the book’s title, which suggests a description of existing constitutional norms — Amar often defends some surprising and unconventional views about constitutional law. The Guarantee Clause of Article IV, the Ninth Amendment, the Citizenship and Privileges or Immunities Clauses of the Fourteenth Amendment, Section 2 of the Fourteenth Amendment, the Nineteenth Amendment, the Twenty-Fourth Amendment, and, glancingly at least, the Titles of Nobility and Bill of Attainder Clauses of Article I, as well as some other provisions — all are interpreted in ways that would surprise someone who, for example, learned constitutional law from Supreme Court opinions. Generally — and again despite the title of the book — Amar’s unconventional readings are designed to show that established principles of constitutional law that might seem to be “unwritten” are in fact securely connected to the written Constitution.

Professor Amar responds: American Constitutionalism -- Written, Unwritten, and Living.

RELATED:  In Slate, Akhil Amar: What If Dzhokhar Tsarnaev Decides Not to Talk? The police should be able to use all civilized means to make him—as the Fifth Amendment should allow.  His central conclusion:

... [A]s long as the precise words and testimony elicited in a police interrogation are never introduced in a criminal trial, the Fifth Amendment will never have been violated. The defendant will never have been made an involuntary witness in his own criminal case. And anything else that the interrogation leads to—bombs, guns, other physical evidence, the names of other possible witnesses or accomplices—should be fair game, because this kind of evidence is far more reliable, in general. Imagine, for example, introducing into evidence the fact that a bomb was found in a hideaway controlled by the defendant and filled with the defendant’s fingerprints.

(Via How Appealing).

The Nontextual and Made Up Chevron DoctrineMike Rappaport

In my last post, I discussed how the Chevron doctrine – which grants administrative agencies the power to choose any reasonable interpretation of statutes that they administer – allows agencies additional legislative power and therefore exacerbates the combining of legislative and executive powers of the administrative state.  Here, I want to explain why the doctrine is made up and nontextual -- and therefore should never have been endorsed by Justice Scalia. 

As the Court freely admits, the Chevron doctrine does not emanate from any statutory text.  It is an inference – I would say an assumption – that the Court makes that any ambiguous language was intended to delegate to the agencies.  But as the Chevron case itself admitted, this assumption is not necessarily grounded in Congress's intent.  When Congress uses ambiguous language, there are many reasons why it might have done so other than intended to delegate the power to resolve that ambiguity to an administrative agency.

Textually, nothing in these statutes says that the agencies should resolve the ambiguity.  Instead, there is an applicable text that speaks to the issue – and says that there should be no deference to the agency.  The Administrative Procedure Act, passed in 1946, states that a reviewing court should "decide all relevant questions of law."  It does not state that it should leave those questions to agencies. 

In addition, the legislative history of the APA confirmed in several different places the same conclusion.   In fact, Justice Scalia admits that the enacting Congress was laboring "under the quite mistaken assumption that questions of law would always be decided de novo by the courts."

The question is how Justice Scalia can ignore this evidence.  While he might argue that the legislative history is not binding, he cannot push to the side the text of the APA.  Things get even worse.  Justice Scalia admits that the APA created an exception from the ordinary procedures for enacting rules for "interpretative rules" because such rules would not be authoritative.  He then writes that this era of not granting deference to interpretative rules "came to an end with our watershed decision in Chevron."  See Scalia dissent in Christensen v. Harris County (2000).  How odd?  I didn't think that Scalia believed that the Supreme Court could ignore or amend a federal statute.

What accounts for such odd behavior on Scalia's part?  It is hard to know, but my guess is that Scalia formed his views back in the 1980s, on the D.C. Circuit, when the conservative judges were reacting against the activist liberal judges of that court who had departed from the law, on a case by case basis, to micromanage the agencies.  Chevron seemed, to these judges, to be a desirable response to the liberal judges.  The problem is that Chevron has no more basis in the law than the activism of the D.C. Circuit liberals.

(Cross posted at the Liberty Law Blog)

G. Edward White: The Origins of Civil Rights in AmericaMichael Ramsey

G. Edward White (University of Virginia School of Law) has posted The Origins of Civil Rights in America (Case Western Reserve Law Review, Forthcoming) on SSRN.  Here is the abstract:

This article makes three contributions. First, it represents the first effort to identify and trace the origins of the legal category of civil rights in American constitutional jurisprudence. Contrary to what has been conventionally thought, the category of civil rights did not extend back to the Declaration of Independence and the framing of the Constitution. There was no established category of “civil rights” in eighteenth- and early nineteenth-century American law, although one can find discussion of the “privileges and immunities” of citizens of the United States and occasional mention of the term “civil rights.” The category came into being with the passage of the Civil Rights Act of 1866 and received its first judicial interpretations in the context of the Reconstruction era constitutional amendments. In the decades of the 1870s, 1880s, and 1890s the category was refined, but there was never a clear consensus about the content or scope of civil rights, or the extent to which they could be enforced by the federal government.

Second, the article seeks to revise a conventional narrative about the constitutional history of the Reconstruction era. In that narrative Reconstruction began as a distinctly libertarian and egalitarian vision, premised on the creation of new universal rights of citizenship and enforcement of those rights by the federal government. In the years between 1866 and 1876 that vision was derailed and the prospective rights of former African-American slaves in confederate states largely abandoned. The Supreme Court in the tenures of Chief Justices Salmon Chase and Morrison Waite allegedly bore some responsibility for the abandonment of the original goals of Reconstruction, as illustrated by the Court’s narrow reading of the Fourteenth Amendment’s Privileges and Immunities and Equal Protection Clauses in the Slaughter-House Cases and its invalidation of the provisions of the Civil Rights Act of 1875 preventing racial discrimination in public accommodations in the Civil Rights Cases. The article finds that in fact the Waite Court developed a civil rights jurisprudence that anticipated protection for, and federal enforcement of, categories of “created” or “conferred” rights, such as those enumerated in the Fourteenth and Fifteenth Amendments. The mostconspicuous example of such rights was the right not to have one’s ability to vote in federal elections restricted on racial grounds. Both the decisions in the Slaughter-House Cases and the Civil Rights Cases can be shown to be consistent with that jurisprudence.

Finally, the article has implications for a longstanding debate about the “original understandings” of framers of the Reconstruction Amendments about whether the Fourteenth Amendment was designed to “incorporate” some of the provisions of the Bill of Rights against the states. The article finds that the Court’s civil rights jurisprudence was driven by a concern that too broad readings of the power of the federal government to enforce new “civil rights” would radically disturb the existing balance of state power. That concern emanated from an assumption that the framers of the Fourteenth Amendment did anticipate a robust definition of the privileges or immunities of national citizenship and of a right to equal treatment under the law, both of which could be enforced by the federal courts. Precisely because of this assumption, Chase and Waite Court majorities sought to define the meaning of “privileges or immunities” and “equal protection of the laws” narrowly.

The article concludes by maintaining that a proper understanding of the category of “civil rights” at its origin needs to take into account the fact that both the conceptualization and interpretation of the category was driven by established antebellum understanding about “rights” and federalism, so that the category remained fluid and uncertain through the 1890s.

Paul Finkelman: How the Proslavery Constitution Led to the Civil WarMichael Ramsey

Paul Finkelman (Albany Law School - Government Law Center) has posted How the Proslavery Constitution Led to the Civil War (Rutgers Law Journal, Vol. 43, No. 3, p. 405, 2013) on SSRN.  Here is the abstract:

This article explores the proslavery nature of the US Constitution and the ways in which that Constitution set the country on the road to the Civil War. The article points out that under the Constitution it was impossible to end slavery. Even to this day, in 2013, it would be impossible to amend the Constitution if all 15 of the slave states (or now former slave states) opposed the amendment. This article was first presented a symposium on the Constitution and the Civil War at Rutgers Camden Law School.

Andrew Hyman on David Upham on Interracial MarriageMichael Ramsey

Regarding this post, Andrew Hyman comments:

There is much silence in Professor Upham's blog post about the Equal Protection Clause, which I think fully supports the decision in Loving [v. Virginia]. In contrast, I don’t think the Privileges or Immunities Clause supports that decision.

A right cannot plausibly be among the privileges or immunities of citizens of the United States if it is located nowhere else in the Constitution, and places no limit on Congress. This is not only plain from the text of the PI Clause, but was also the unanimous consensus in Dred Scott. Taney wrote: “The powers of the [federal] Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself.” Curtis wrote: “[T]he privileges and immunities of general citizenship, derived from and guaranteed by the Constitution, are to be enjoyed by….citizens of the United States.”

Those who want to interpret the PI Clause as a guarantee of unenumerated rights can find some support in the historical record, but it is relatively meager. And not incidentally it hands to liberal judicial activists an extremely powerful tool for controlling public policy by manufacturing new rights.

The Equal Protection Clause supports the Loving decision by its terms. A statute that was largely designed to place a mark of inferiority on mixed-race children was the essence of what the EP Clause was designed to prevent.

I tend to agree that the Equal Protection Clause is the most plausible source of marriage rights, but on the other hand couldn't one say marriage was a traditional privilege accorded generally to citizens by the states, so by the terms of the PI clause a state couldn't deny it to a subset of citizens (at least, without a good reason)?

Update: Andrew Hyman replies:

I would answer "yes" if the PI Clause instead said that no state can abridge the traditional "privileges or immunities of state citizenship."  But instead the clause refers clearly to "the privileges of immunities of citizens of the United States."  How can something be a privilege or immunity of citizens of the United States if it does not restrain Congress?  As far as I know, folks like Processor Upham have not suggested that there's anything in the Constitution that requires Congress to allow official marriages and marriage licenses in the District of Columbia, for example.  So, I have to answer "no" to your question.

Additionally, both Taney and Curtis very precisely distinguished constitutional rights rather than other (e.g. statutory) rights, as comprising the privileges and immunities of federal citizenship.  The Fourteenth Amendment overturned Dred Scott, so why wouldn't the authors of that amendment have used the terminology that was used in that case without dissent?

Daniel Smyth on the Origination ClauseMichael Ramsey

At American Thinker, Daniel Smyth (LibertyBlog.org) expands on his prior argument that the Affordable Care Act violates the origination clause, with particular focus on Jefferson's Manual of Parliamentary Practice.  As he notes:

A U.S. district court could soon decide if the Pacific Legal Foundation's (PLF) case against ObamaCare will continue in the U.S. court system. PLF alleges that ObamaCare is unconstitutional because it violates the Origination Clause, which reads, "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills."

For previous discussions on this blog, see here, here, here and here.

Also, from a while back, here is a post by PLF's Timothy Sandefur on the litigation: Will the courts enforce the Origination Clause against Obamacare?

Geoffrey Stone on Originalism and HomosexualityMichael Ramsey

At Huffington Post, Geoffrey R. Stone (Chicago): Justice Scalia, "Originalism" and Homosexuality.  Key excerpts:

... At time the Fourteenth Amendment was enacted people considered sodomy in the same way they considered robbery, burglary or murder. It was a bad thing, and if people chose to do it they should be punished.

Moreover, at that time there was no concept of the "homosexual" as a type of person with a particular sexual orientation. The concept of the homosexual as we now understand the concept did not come into being until long after the Fourteenth Amendment was adopted, at the end of the nineteenth century. Indeed, despite what Justice Scalia seems to think, the word "homosexuality" did not even exist until the late nineteenth century.

It was only then that physicians and psychologists began for the first time to recognize that some people, termed "homosexuals," had a deeply-rooted sexual orientation that led them to be attracted to persons of the same sex. ...

The same reasoning and the same conception of "orignalism" that leads Justice Scalia rightly to conclude that the Framers' ignorance of cell phones and the Internet does not resolve questions about the meaning of "the freedom of speech" should also lead him to the conclusion that the Framers' ignorance about the nature of sexual orientation does not resolve fundamental questions about the meaning of "the equal protection of the laws."

The argument sounds kind of familiar.  (No link to us though.  Or to Grant Darwin).

(Via How Appealing).