05/29/2017

Calvin TerBeek Responds to Chris Green (and others) on the History of Originalism
Michael Ramsey

At The Faculty Lounge, a follow-up post by guest-blogger Calvin TerBeek: Response to Garnett, Sachs, and Green on Originalism's Intellectual History (responding to, among others, this Originalism Blog post by Chris Green).  From the conclusion:

To be clear, this is not to say that originalism as a serious academic inquiry is impossible. But originalists -- besides largely ignoring the political valence of the theory as practiced and the conservative/libertarian intellectual support structure -- seem reluctant to engage with historians' and political scientists' critiques of originalism. After years of being buffeted by academic historians, the linguistic turn was developed by Solum in order to avoid these critiques (though it is not clear that all originalists share Solum’s enthusiasm for this approach). Corpus linguistics, as used by originalists, appears to be another way to avoid historical critique at the same invoking the prestige of "big data" and putative rigorous empiricism -- all the while ignoring the fundamental problem with originalism: the probable existence of multiple "original public meanings."

The unproductive response to this evidence is to dismiss originalism as political hackery. It is not that. (Another irony in all this: historians and political scientists have taken originalism far more seriously as an idea than many liberal legal scholars). Originalism is better understood as providing the constitutional vocabulary for movement conservatism much the same way legal realism provided intellectual support for New Deal-era legal liberalism. But that also means originalism is inescapably part of the political terrain. However, originalists are now setting forth the intellectual architecture to claim that originalism is something like a replicable social science complete with a methodology. Thus -- and this has long been its implicit claim -- originalism is objective and any other theoretical construct is, by definition, constitutionally deviant. This is a bold, even audacious, claim. But it is one that needs to be debated and dissected rather than flippantly dismissed. Originalism has shown itself to be a powerful idea worthy of respect as a theory/movement. Originalists, at the same time, might do better to avoid the apolitical pretense that marks so much of the scholarship (and even the claims of more politicized actors like Levin). The final irony is this: originalism cannot achieve its desired hegemony unless and until its advocates engage with its critics rather than continually moving the proverbial goal posts. There still seems to be precious little evidence of that.

05/28/2017

Joshua Craddock: Does the Fourteenth Amendment Prohibit Abortion?
Michael Ramsey

Joshua J. Craddock (Harvard University, Law School, Students) has posted Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion? (Harvard Journal of Law and Public Policy, Vol. 40, No. 2, 2017) on SSRN.  Here is the abstract:

What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy? 

The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term "person"? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.

(Thanks to Michael Perry for the pointer).

05/27/2017

Rob Natelson Responds to Ilya Somin on Federal Immigration Power
Michael Ramsey

At Josh Blackman's Blog, Rob Natelson (Independence Institute) has this response to Ilya Somin's critique of Professor Natelson's essay The Constitution does indeed permit immigration caps as part of ‘the law of nations’.  From the introduction:

Before addressing his argument, I should make clear I agree with Professor Somin on several key issues about the Constitution and immigration. I agree that the original meaning of the Commerce Clause does not include a general power to restrict immigration, and that the Naturalization Clause probably does not, either. In company with him, I reject the claim that the federal government possesses extra-constitutional inherent sovereign authority—because that claim is starkly inconsistent with the ratification-era debates, the structure of the Constitution, and the text of the Tenth Amendment.

Where we differ is about whether the power to “define and punish Offences against the Law of Nations” includes authority to restrict immigration.

...

 

The law of nations held, as a general principle, that nations should not harm each other. Hence, it provided that nations must refrain from unauthorized incursions into other nations’ territory. To violate international law, the unauthorized entry need not be led by a foreign government. As the Founders’ favorite international law scholar, Emer de Vattel observed, “Private persons, who are members of one nation . . . may injure a foreign sovereign.” Immigration statutes implemented the “no unauthorized entry” norm against “private persons” from other countries.

Here's an originalist conundrum:  Suppose Professor Natelson is right that at the time of the framing the define and punish clause would have permitted Congress to comprehensively regulate immigration because unlawful immigration was a violation of the law of nations.  And further suppose (although he does not argue this) that the framers specifically designed the Constitution this way to give Congress a comprehensive power over immigration, which they thought Congress should have.  But also suppose Professor Somin is right that unlawful immigration is no longer a violation of the law of nations (today's customary international law) because changes in the customary understanding of international law that no longer place any duty on foreign citizens or sovereigns to refrain from or prevent such immigration.

Does Congress still have the authority to regulate immigration under the define and punish power even though the act being punished is no longer a violation of international law?

(On further reflection, I continue to prefer my suggestion that the President has power to prevent entry of peaceful migrants as part of the executive power over foreign affairs, just as the President has power to prevent entry of hostile invaders as part of the power to repel attacks; and Congress has power to regulate in the area as part of its power to make regulations necessary and proper to carry into execution the powers vested by the Constitution in other branches.)

05/26/2017

James Wallner on the Filibuster
Michael Ramsey

At Liberty Law Blog, James Wallner (Catholic University Department of Politics): Ditching the Filibuster Won’t Save the Senate. From the introduction:

In contrast to the conventional view [that the filibuster is the key problem], approaching the Senate from the perspective of what the Framers of the Constitution intended it to do suggests that the institution is dysfunctional not only because partisans produce gridlock. The dysfunction also comes from the fact that the Senate no longer performs its deliberative role very well. Reasoned deliberation has nearly disappeared in the institution, as decision-making has gradually migrated from committee hearings and action on the floor of the Senate to informal and ad hoc meetings of interested members—meetings typically held under the auspices of the party leadership, out of public view and behind closed doors.

This leadership-led way of proceeding is problematic given that the institution’s architects shared broadly in the belief that they were creating a deliberative institution, one explicitly designed to limit the power of popular and transitory majorities as reflected in the House of Representatives. Indeed, a deliberative Senate was key to making the new government work.

And further:

To provide such a check [on majoritarianism], the Senate would have to differ significantly from the House in both its composition and the way in which it conducted its proceedings. Charles Pinckney observed during the debate over ratification in South Carolina that “the purpose of establishing different houses of legislation was to introduce the influence of different interests and principles.” In Federalist 62, Madison explicitly connected the Senate’s ability to perform its checking function to the extent to which it differed from the House, writing that

as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance.

This illustrates the two distinct roles that the Framers charged the Senate with performing: passing legislation along with the House—but simultaneously checking popular opinion as expressed in the House by promoting thoughtful deliberation in the writing of the laws. This sentiment is reflected in the convention and ratification debates on bicameralism, as well as the Senate’s method of selection, size, nature of representation, and term length.

As regular readers know, I hold what Professor Wallner calls the conventional view, that the filibuster is a problem.  I agree with all he says about the framers' design for the Senate, and I agree that in theory one might expect the filibuster to promote deliberation (by giving the minority a stronger position).  But in fact it does not work that way, under current conditions: the minority (whether Republicans or Democrats) would prefer that nothing be accomplished -- and indeed the majority may prefer that as well.  I think there would be more deliberation without the filibuster.  It might be chiefly deliberation within the majority.  But the majority would have an incentive to deliberate, because what it decided upon might actually pass (instead of being filibustered).

Consider, for example, the current situation of health care reform, passed quickly in the House but now the subject of deliberation within the Senate majority precisely because it is operating under a procedure where the filibuster won't apply.  If the minority could filibuster, the majority could afford to be much less careful.

ALSO AT LIBERTY LAW BLOG (and somewhat related), Michael Greve describes his ideal constitutional amendments (to make Congress deal with the budget deficit): Amending the Constitution with Buchanan and Buckley.

05/25/2017

Larry Solum on Leah Litman on Novelty and the Constitution
Michael Ramsey

At Legal Theory Blog, Larry Solum has extensive comments on a post by Leah Litman on the Take Care Blog.  From the introduction: 

Leah Litman has a very good post entitled The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part I) on Take Care Blog.  Here is an excerpt:

In an article that was just published in the Duke Law Journal, I explained why that’s wrong—that is, why a federal statute’s novelty is not an indication that the statute is unconstitutional, and why it shouldn’t be treated as one. The CFPB’s structure is established by statute, so a decision holding the CFPB’s structure unconstitutional amounts to holding unconstitutional the part of the statute that establishes the CFPB’s structure.

The novel feature of the CFPB that Litman discusses was described by the DC Circuit as follows:

[N]o independent agency exercising substantial executive authority has ever been headed by a single power. * * * Until now.

Litman's post discusses various possible rationales for the proposition  that the novelty of a statute is a reason to consider the statute unconstitutional.  One of these rationales has a strong connection to originalism.  This is the "thus far but no farther" rationale for treating novel or unprecedented departures from original meaning differently than departures that are supported by longstanding precedent the reversal of which is simply impracticable.

And in conclusion:

As should now be apparent, Litman fundamentally misunderstands the "thus far but no farther" version of the novelty argument.  Litman is right, there is no "magic" about novelty.  Novelty is important because it allows us to draw a line between violations of the original meaning that must be tolerated (at least in the short to medium run) for pragmatic reason and constitutional violations that can be redressed without creating enormous disruption.

It is entirely understandable that Litman would make this mistake.  Like most constitutional scholars (who reject originalism), Litman takes the Dynamic New Deal Settlement for granted.  Given this constitutional gestalt, novelty has no constitutional significance.  Indeed, the very idea of the Dynamic New Deal Settlement is that novel practices should be accommodated by adjustments in constitutional doctrine.  The alternative constitutional gestalt rejects this assumption.  The understanding expressed by Frozen New Deal Settlement is precisely that novelty is crucially important if and only if the novel assertion of government power is inconsistent with the original meaning of the constitutional text.  "Thus far but no farther" represents an originalist second best--a rule that aims preserves the constitutional status quo.  The normative justification for adhering to the second best is based on the normative case for originalism itself--a topic I have addressed in The Constraint Principle: Original Meaning and Constitutional Practice.

(See also this article [by me] that suggests something like the "thus far but no further" idea as a way of dealing with nonoriginalist precedent).

05/24/2017

Ilya Somin Responds to Rob Natelson on Federal Immigration Power
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Congress’ power to “define and punish” violations of “the Law of Nations” does not give it authority over immigration (responding to this essay by Rob Natelson).  From the introduction:

The law of nations argument is creative. But it ultimately fares no better than more conventional rationales for a general federal power over immigration.

Eighteenth century understandings of the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit. But the fact that international law recognized the exclusion of aliens as a power of sovereign states does not mean that a violation of a national law restricting migration is thereby a violation of the law of nations. Blackstone and the other eighteenth century writers cited by Natelson make the former claim, but not the latter.

And from later in the post:

A slightly different variant of the law of nations argument is that the Define and Punish Clause gives Congress the power to forbid any acts that a foreign nation has an international law obligation to prevent, such as the use of its territory to launch attacks against a neighbor.  [Editor's note:  in my view, this is a power that the clause grants.  Typically, with the exception of piracy, this is how eighteenth century commentators understood individual violations of the law of nations.]   But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them. For example, no serious commentator contends that Mexico’s failure to prevent migration by its citizens to the United States is a breach of its international law obligations, even if the migrants violate US immigration law.

05/23/2017

More from Calvin TerBeek on the History of Originalism
Michael Ramsey

At the Faculty Lounge, Calvin TerBeek (guest-blogging): The Transition to Self-Conscious Originalism, 1977-1985.  From the introduction:

On December 6, 1984, then-Judge Robert Bork gave a speech to the American Enterprise Institute (AEI) calling on conservatives to combat the theory emanating from the (liberal) legal academy. “Now we need theory,” Bork stated, “theory that relates the framers’ values to today’s world . . . It is necessary to establish the proposition that the framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.”

This seems curious in light of the fact that originalists, in telling their own intellectual history, point to Robert Bork's 1971 Indiana Law Journal article as proto-originalism and Rauol Berger's 1977 Government by Judiciary as the theoretical point of congealment around original intent orignalism, the pre-cursor to original public meaning originalism. If indeed constitutional conservatives had homed in on Berger, original intent, and originalism, why would Bork be calling for more "theory" on this very point seven years after Berger's book was published?

This answer is straightforward but has been overlooked: constitutional conservatives did not immediately congeal around Berger's formulation and begin to call themselves “originalists.” In addition to the anachronism of imputing labels and motives to historical actors they would have not have recognized or accepted, it is also another data point that political scientists, historians, and legal academics have ceded this important terrain to originalists. Furthermore, it is also a small window into how ideas gain traction. In short, while Berger's book was important, digging a bit deeper shows that original intent originalism was not inevitable, but one of a few existing narrative frames for constitutional conservatives before 1985 (and perhaps even after). 

For his previous post, see here (and commentary by co-blogger Chris Green here).

05/22/2017

Greg Weiner on Impeachment
Michael Ramsey

In the New York Times, Greg Weiner (Assumption College Political Science/Liberty Law Blog): Impeachment’s Political Heart. From the core of the argument:

Our tendency to read the impeachment power in an overly legalistic way, which is ratified by 230 years of excessive timidity about its use, obscures the political rather than juridical nature of the device. The Constitution applies presidential impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors.” The famous latter phrase does not refer to offenses like burglary on the one hand or loitering on the other. If it did, impeachment would be available for casual transgressions, which no framer of the Constitution intended.

The phrase dates in American constitutionalism to the founder George Mason’s proposal to make the president liable to impeachment not just for treason and bribery — the original formulation at the Constitutional Convention — but also for what he called “maladministration.” His fellow framer James Madison objected to the vagueness of the term, so Mason substituted “high Crimes and Misdemeanors.” That phrase, in turn, is traceable to the British legal commentator William Blackstone, a contemporary who was revered in colonial America, who applied it to the “mal-administration of high officers,” among other things.

Mason’s intent was clearly to delineate a political category, something Alexander Hamilton — who did not shrink in the defense of executive power — recognized in Federalist 65, which says that impeachment applied to offenses “of a nature which may with peculiar propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

And in conclusion, with respect to President Trump:

The evidence should be carefully gathered, a process in which Robert S. Mueller III, acting as special counsel, will help considerably. But Mr. Mueller is no substitute for Congress’s independent responsibilities of investigation and sober evaluation. The question is by what standards they should conduct this work, and that question provides an opportunity to correct the mistaken assumption according to which presidents can forfeit the public trust only by committing what the law recognizes as a crime. That is a poor bar for a mature republic to set. It is not the one a newborn republic established.

And that is why the idea that the conversation about impeachment is simply a political persecution of a man who is technically innocent of a literal crime not only jumps the investigatory gun. It misses the constitutional point.

(Thanks to Michael Perry for the pointer).

I think it inevitable that, if there is serious discussion of impeachment, a central issue in popular commentary will be the framers' understanding of "high Crimes and Misdemeanors."  This despite repeated claims during Justice Gorsuch's confirmation that originalism is impossible or incoherent, that originalism is a fringe approach, and/or that originalism leads to such manifestly bad outcomes that it should be denounced and rejected.

RELATED:  At Bloomberg View, Noah Feldman: Trump Should Worry: Comey Memo Describes a High Crime.  Despite the title, the article is mostly a fair-minded assessment of whether the President's alleged comments to Director Comey violated statutory law or the Constitution (concluding no): 

...[T]he federal obstruction statute, 18 U.S.C. Section 1503 ... punishes anyone who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”

On a close reading, this isn’t a great fit with the president asking the director of the Federal Bureau of Investigation if he can let a probe go because the target is “a good guy.” Remember, as a constitutional matter, the director of the FBI, like the attorney general and the rest of the machine of federal law enforcement, works for the president.

Although there has been a strong tradition of separating investigation and prosecution from the president -- a tradition grossly violated by Trump’s request -- it’s still just a tradition, not a legal requirement.

Thus, as a constitutional matter, Trump has the authority to propose ending an investigation. If he wanted to, Trump could just order the investigation to be brought to an end. He wouldn’t even have to exercise his pardon power, another way to put a preemptive stop to investigations. He could just direct his subordinates to cease.

To be sure, Comey probably would have resigned had this order been given. The point is that Trump could have given it, legally speaking.

Agreed.  But the Professor Feldman -- no originalist! -- goes on to say:

Impeachment is another matter. Using the presidential office to try to shut down the investigation of a senior executive official who was also a major player in the president’s campaign is an obvious and egregious abuse of power. It’s also a gross example of undermining the rule of law.

This act is exactly the kind that the Founding Fathers would have considered a “high crime.” [editor's note: in the essay, no evidence follows this assertion.]

First, no.  If anything, it is (as Professor Weiner argues) a high misdemeanor.  I'm not aware of any evidence that "crime" meant anything different in the eighteenth century than it does today -- an act contrary to law.  Since Professor Feldman spent the first two-thirds of his essay explaining (correctly in my view) that no crime could be found in these allegations, that should be an end of that.  The ambiguous word is "misdemeanors," which can mean "minor crimes" but also can mean (and could also mean in the eighteenth century) "misdeeds."  (Aside: why are nonorignalists such terrible originalists?)

Second: why does Professor Feldman care what "the Founding Fathers would have considered a 'high crime'"?   Only because he thinks (rightly) that originalist arguments carry force in this debate.

05/21/2017

William Thro: Originalism and School Finance Litigation
Michael Ramsey

William E. Thro (General Counsel, University of Kentucky) has posted Originalism and School Finance Litigation (335 Education Law Reporter 538 (2016)) on SSRN.  Here is the abstract:

In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner. Although the constitutional theories seem straightforward, the judicial opinions raise complex jurisdictional, merits, and remedial questions. Moreover, despite scores of cases and a significant amount of academic commentary, “there are few certainties in the school funding litigation process.”

This uncertainty is the result of judges and attorneys asking the wrong questions. Like all constitutional litigation, a challenge to a State’s school finance system involves three fundamental questions. First, who allegedly violates the Constitution? As Rosenkranz demonstrated, answering this question tells us whether the constitutional challenge is a facial challenge to legislative authority or simply an as-applied challenge to executive enforcement of a statute. This is the question about standing and standards of proof. Second, what does the Constitution prohibit or require? Answering this question tells us how the Constitution limits the sovereign discretion of the government and what those limits mean. This is the question about constitutional meaning. Third, why is the Constitution violated or not violated? Answering this question tells us what constitutional actors must do to correct the violation or why the constitutional actors have conformed to the constitutional norms. This is the question about remedy.

I addressed the first question in a previous work and I intend to address the third question in the future, but this Article addresses the second question — what does the State Constitution require or prohibit with respect to the financing of schools? In particular, I focus on how to determine what the State Constitutions mean for school finance. My thesis is that Originalism is the best way of enforcing the constitutional limits and constraining judicial power.

05/20/2017

University of Chicago Law Review Symposium: "Developing Best Practices for Legal Analysis"
Michael Ramsey

In the current issue of the University of Chicago Law Review, a symposium on Developing Best Practices for Legal Analysis.  Of particular originalist interest:  Lawrence B. Solum, Originalist Methodology (84 U. Chi. L. Rev. 269 (2017)).  Here is the introduction:

This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology.

Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. Part IV describes an originalist approach to constitutional construction. The Essay concludes with a short reflection on the future of originalist methodology.

(Also available in final form on SSRN here.  This is the final version of the draft noted on this blog here.)

Other contributions to the symposium include Curtis Bradley, Doing Gloss (discussing methodology of using historical practices to interpret the Constitution) and essays on textualist/formalist statutory interpretation by Frank Easterbrook (The Absence of Method in Statutory Interpretation) and Abbe Gluck (Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do).