05/28/2016

Jordan Paust: Actual Commitment to Compliance with International Law
Michael Ramsey

Jordan J. Paust (University of Houston Law Center) has posted Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply to Professor Moore (40 Houston Journal of International Law (forthcoming 2016)) on SSRN.  Here is the abstract:      

This reply demonstrates that claims that the Continental Congress violated a rule of customary international law and three treaties are unproven, that overwhelming views of the Founders and Framers and early judiciary were clear that Congress and the President are bound by customary and treaty-based international law, and that there was no approval by the Founders or Framers of an alleged authority of any part of the national government to violate customary or treaty-based international law. Indeed, no one declared or embraced an alleged national discretion to violate international law. Today, at least forty-three opinions of Supreme Court Justices have affirmed (1) that Congress is bound by customary international law, and (2) that the President is bound by customary and treaty-based international law. Fifteen other Supreme Court Justice opinions are supplementary, and eighteen opinions of Supreme Court Justices affirm various exceptions to the last-in-time rule that guarantee the primacy of certain types of treaty-based rights and duties in the face of conflicting newer congressional legislation.

This is a reply to this paper by David Moore (BYU):  Constitutional Discretion to Violate International Law (noted here, and previously presented at the San Diego Originalism Works-in-Progress conference).  The debate over the views of the Continental Congress is interesting.  My view is that the reply's claims about the Supreme Court are overblown.  See International Law in the Supreme Court: Continuity and Change.

05/27/2016

Samuel Bray: Hendiadys in the Constitution
Michael Ramsey

Now published, in the current issue of the Virginia Law Review: Samuel Bray (UCLA), “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution (102 Va. L. Rev. 687 (2016)). Here is the introduction (footnotes omitted):

For more than two centuries, no clause of the U.S. Constitution has been more central to debates over federal power than the Necessary and Proper Clause. For an interpreter today, it is inevitable to wonder if everything worth saying has already been said. Yet the Clause remains at the heart of major debates in this country, including the recent landmark case of National Federation of Independent Business v. Sebelius. In that case the Court eventually got around to upholding the Affordable Care Act under the taxing power, but only after holding that the individual mandate could not be justified under the Necessary and Proper Clause. The individual mandate, the Chief Justice wrote, might be ""necessary' to the Act's insurance reforms," but it was "not a "proper' means for making those reforms effective." Necessary, but not proper. Whether the conclusion was right or not, it was exactly the kind of close reading that one would expect a court to give to the Clause, since it authorizes only congressional actions that are "necessary and proper." Or does it?

This Article attempts to shed new light on the original meaning of the Necessary and Proper Clause, and also on another Clause of the U.S. Constitution, the Cruel and Unusual Punishments Clause. The phrases "necessary and proper" and "cruel and unusual" can be read as instances of an old but now largely forgotten figure of speech. That figure is hendiadys, in which two terms separated by a conjunction work together as a single complex expression. The two terms in a hendiadys are not synonymous, and when put together their meanings are melded. (Hendiadys is pronounced hen-DIE-u-dus.)

(Draft previously noted on this blog here.)

05/26/2016

About that Washington Post Editorial
Michael Ramsey

Ed Whelan at NRO sharply criticizes this Washington Post editorial on Supreme Court nominations: The danger of Trump, Sanders and Clinton’s Supreme Court lists and litmus tests.  (The "danger" is that they are further "politicizing the judiciary").  He highlights especially this odd passage: 

The judiciary is different from the other two, more political, branches of government, and politicians, in their search for short-term victories, should not be so eager to erode that difference. Judges are not immune to ambition or political ideology, but Americans have long expected and should still expect that judges be guided by other values: careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, a healthy amount of modesty and allegiance to the notion that their rulings must bear a rational relationship to the laws they interpret and the precedents they have set. A world in which judges must at the very least address these expectations is far better than a world in which they are assumed to be wholly political actors who need offer no justification beyond, “I promised to rule this way.”

My thoughts: this is the worst sort of oversimplification and denial.

(1) I wonder if the editorial writers have seen this post by Mark Tushnet, or even this post by Erwin Chemerinsky.  Do they know that leading liberal law professors think of the Court (on big constitutional issues) in purely political terms where their side, they hope, is about to "win"?

(2) I'm sure that every person on Trump's list, and every person Clinton or Sanders would nominate, and every Supreme Court Justice in modern memory, and virtually every member of the federal judiciary, is "guided by ... careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, [and] a healthy amount of modesty..."  But these admirable values do not decide hard, politically salient cases.  The disputes that matter to society as a whole turn on (a) judicial philosophy regarding the role of courts and the nature of interpretation, and (b) depending on the conclusion in (a), social morality.  And so all the hard questions on nomination and confirmation turn on the latter points, not on the take-for-granted values the Post identifies.  Anyone who thinks otherwise does not understand how the Court works.

(3)  Similarly, no judge in the country is or would ever be a "wholly political actor[ ] who need[s to] offer no justification beyond, 'I promised to rule this way.'"  This is as simplistic a false-dichotomy as one can imagine.  Of course judges/Justices will offer justifications, and those justifications will (in hard cases) sound in the considerations noted in points (a) and (b) above -- judicial philosophy and social morality.  What Trump and Clinton and Sanders are getting at in their lists and tests is: what are the right judicial philosophies and social moralities for Justices?  Or put another way, what kind of a judge -- philosophically --  is this potenial nominee?  The idea that judges are either not political, or else would vote a particular way because they promised to do so, trivializes the choice.  It isn't that the nominee promises a particular outcome; it's that the nominee embodies a particular approach to judging that one finds either appropriate or inappropriate.   And the evaluation of that approach is never on the wholesome-yet-empty criteria the Post proposes (because all plausible nominees meet those), but on how the nominee views the role of the judge and the shape of the best society.  So in selecting nominees, why would we not want to think about their views on these subjects?  And in selecting among presidential candidates, why would we not want to know what their views are?

(4)  Ed Whelan is rightly aghast at the Post's proposition that judges' rulings "must bear a rational relationship to the laws they interpret and the precedents they have set."  Again, surely all plausible nominees meet this extraordinarily low bar.  (Do the editorial writers understand that a "rational relationship" is a term of art for  the lowest possible standard in constitutional adjudication?)  Surely a judge's rulings should have much more than just a "rational relationship" to the law they are supposedly applying.  But assuming the Post's equivocal language is meant to acknowledge the substantial discretion judges have in reaching their conclusions in hard cases:  what does the Post think judges are going to use to decide among the various options, all having such a "rational relationship"?  The right answer is, as above, the judges' views on the judicial role and/or on  social morality.  

(5) The short answer to the charge of politicizing the judiciary is: if you make the judiciary a decider of political morality, it will be politicized.  Justice Scalia made this point in 1998 in A Matter of Interpretation.  The Post editorial writers should ask themselves: (a) how many times have they applauded or criticized a judicial result based on whether the social morality it reflected accorded with their own, and (2) how many times have they applauded a judicial result because it reflected a proper understanding of the judicial role in a constitutional democracy even though  the outcome conflicted with their own social morality?  If, as I suppose, the answers are "many times" and "never," we can see who really is to blame for the politicization of the judiciary.  Trump, Clinton and Sanders are just responding to a reality created by others.  As Whelan puts it, "The primary cause of 'politicizing the judiciary' is the widespread belief that judges have free rein to read the Constitution and federal statutes to impose whatever result they want." 

(6) If one really wants a de-politicized judiciary, the key is to reduce the judiciary's political role.  There are at least two paths for doing so.  One is a strong version of judiciary restraint.  If judges did not rule against the elected branches except where judges of all jurisprudential approaches would agree, the role of courts in governing modern society would be greatly reduced and it would not matter so much who was nominated.  (The downside is that we would lose an independent check on the elected branches).  The second path is a strong commitment to originalism/textualism, so that judges are not pursuing their own versions of social morality but are trying to discern the choices made by earlier lawmakers.  If we have true courts of law, not courts of policy, again the nominees will not matter so much.  (This path is a lot harder than pure judicial restraint, but it maintains a check on the elected branches).

It's not clear to me if either of these approaches is possible.  But if the Post is serious about a de-politicized judiciary, it could start advocating for one or the other of these approaches. To pursue the ridiculous notion that we can take politics out of the judiciary just by picking judges that are "guided by ... careful thinking, reverence for the facts of specific case," etc., is either extraordinarily naive or shockingly dishonest.  For this reason I much prefer Tushnet and Chemerinsky (and Trump, Clinton and Sanders): they understand what is at stake and are willing to say it.

(To be clear, I do not think potential nominees should promise particular results in specific cases.  Obviously Trump's list doesn't raise this concern; arguably some of Clinton's and Sander's statements might.  But think Clinton and Sanders are best understood as saying they would nominate someone who is has the type of judicial philosophy that would likely lead to a particular result, not that they would extract such a promise expressly.)

SOMEWHAT RELATED:  At Liberty Law Blog, John McGinnis: Trump, Clinton, and the Supreme Court.

05/25/2016

Michael Novotny: The Framers Intended the Sixth Amendment to Cover Speedy Sentencing
Michael Ramsey

Michael Novotny (Independent) has posted Don't Hurry Me Up to Make Me Wait! The Framers Intended the Sixth Amendment to Cover Speedy Sentencing on SSRN. Here is the abstract:  

This paper takes an originalist perspective, in honor of the late Justice Scalia, to argue that the Framers intended the Sixth Amendment — not the Due Process clause — to apply to speedy sentencing. Speedy sentencing is embodied in over 300 years of American-criminal law principles. During the framing of the Constitution, the Framers drafted the Speedy Trial clause with several core values in mind: “unreasonable delay . . . threatens to produce . . . ‘oppressive . . . incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the [accused’s] defense [or appeal] will be impaired by’ dimming memories and loss of exculpatory evidence.” When putting these values to practice, the text of the Speedy Trial clause must be read with the “meaning ascribed at the time of [its] ratification.” As a result, this paper first provides a factual scenario — as presented in Betterman v. Montana — to analyze the legal issues presented by the Speedy Trial clause. Next, the text of the Speedy Trial clause is dissected. Finally, this paper examines the text in the context of the Sixth Amendment’s history and tradition.

05/24/2016

Sometimes “People” = “Legislature”
Seth Barrett Tillman

This is a response to Professors Saikrishna Bangalore Prakash & John Yoo, People ≠ Legislature, 39 Harvard Journal of Law & Public Policy 341 (2016) (noted on this blog  here).

Professors Prakash and Yoo’s position is that “[a]s used in the Constitution, ‘Legislature’ refers to a multimember lawmaking body that is distinct from the people.” Prakash & Yoo, supra at 355. I have to admit, that my own intuition is consistent with their view. But I am not sure that my intuition counts for much. The Framers and ratifiers spoke to this issue, albeit unevenly, but what many wrote does not easily square with Prakash & Yoo’s position.

For example, the (unamended) Constitution of 1788 committed the selection of Senators to the state legislatures, and it left the selection of presidential electors to the discretion of the state legislatures. Compare U.S. Const. art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof ....” (emphasis added)), with id. at art. II, § 2, cl. 1 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ....” (emphasis added)).

Yet, notwithstanding the centrality of the state legislatures to both constitutional processes—selection of senators and selection of presidential electors—John Jay, in Federalist No. 64, wrote: “the president [is] to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the state legislatures.” The Federalist No. 64 (emphasis added). Jay’s statement is more than somewhat perplexing: under a plain reading of the constitution’s text—at least through our modern eyes—the “people” play no direct role in choosing presidential electors. It is almost as if Chief Justice Jay were saying ... “People” = “Legislature.”

Furthermore, Jay was not alone in making this apparent “mistake.” In Federalist No. 68, Alexander Hamilton stated that “the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government ....” The Federalist No. 68 (emphasis added); see also Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. Va. L. Rev. 601, 614 n.45 (2003). Nor was this a lone misstatement by (future Secretary of the Treasury) Hamilton, who repeated this apparent error elsewhere in Federalist No. 68, and also in Nos. 60, 69, and 77. See id. at 614 nn.46–49.

The Federalist’s third author, James Madison, agreed with his two co-authors. At the Virginia ratifying convention, (future President) Madison stated: “[The President] will be the choice of the people at large.” 3 Elliot’s Debates 487 (2d ed. 1836) (emphasis added). Additionally, at the Virginia ratifying convention, Governor Edmund Randolph stated: “The electors must [!] be elected by the people at large.” Id. at 486 (emphasis added).

Now I expect that Prakash and Yoo would argue that the Chief Justice, Secretary, President, and Governor—all were mistaken. But what if they were not mistaken? What if their statements reflected the original public meaning of “legislature” as used in the Electoral College Clause (Art. II, § 2, cl. 1)?

Prakash and Yoo also state: “Consider an absolute monarch with power to make laws. An executive sovereign would not be a ‘Legislature’ in its eighteenth-century sense.” Prakash & Yoo, supra at 355. Here, they are not talking about how “legislature” is used in any specific clause in the Constitution of 1788, but how it was used in every day language of the time. It strikes me that their claim is objectively falsifiable. In the famous exchange between Lord Granville, President of the Privy Council, and Benjamin Franklin, in 1775, just before the start of the Revolution and War of Independence, Granville stated: “You contend that the king’s instructions to his [colonial] governors are not laws .... They are ... so far as they relate to you, the law of the land, for the king is the legislature of the colonies.” 9 Encyclopedia Britannica 713 (1879) (emphasis added and original emphasis removed). I do not suggest that Granville’s legal position was correct, but I think he knew how to use the word “legislature,” which here refers to the King, and not to a multimember elected or appointed body. If you want a more immediate American source: Congressman William Findley, who had been an anti-federalist member of the Pennsylvania ratification convention, stated on the floor of the U.S. House of Representatives: “[Montesquieu] ... demonstrates the absurdity of the legislature sitting in judgment on offenders against their own laws, even in an absolute monarchy where the king is the legislature ....” 6 (part 2) American Register 85, 90 (1809) (emphasis added) (available on Hein Online). See e.g. Nathanael Vincent, Antidote 114 (1779) (using “universal legislature” to refer to the Christian deity).

Finally, any number of clauses in the Constitution of 1788 use the term “legislature.” In regard to some of these clauses, e.g., Article V, practice since 1789 has been that the state legislative houses act alone, without participation of state governors, even where governors are part of the normal law-making process. In respect to other clauses, e.g., the Elections Clause (Art. I, § 4), practice has been that the entire law-making apparatus of the State is to be used, including both the state legislative houses and state governors. Prakash and Yoo discuss this dichotomy. See Prakash & Yoo, supra at 350ff. But they do not tell us which line of practice and judicial authority drawing on that practice is incorrect. Does the Constitution’s use of “legislature” refer to just the state legislative chambers or does it also permit the use of the entire regular law-making apparatus, including governors? If the Constitution permits states to use either route, or if some clauses require one process and forbid the other, then perhaps Prakash and Yoo’s reliance on intratextualism—across clauses and articles—is misplaced because the Constitution of 1788’s usage in regard to “legislature” varies (or may permissibly vary) across provisions.

I do not suggest that Prakash and Yoo’s position is frivolous. They have some decent arguments. But they do not deal with obvious counter-authority (e.g., The Federalist and ratification debates), and they make empirical claims—claims central to their argument—that are (in my opinion) plainly wrong (e.g., the 18th century meaning of “legislature”).

Arizona State Legislature v. Arizona Independent Redistricting Commission is not a thing of beauty and joy forever. In terms of judicial craftsmanship, it is probably one of the Court’s weaker decisions. Some of its arguments, as Prakash and Yoo point out, can be criticized: they are methodologically unsound, and they are based on contestable policy assumptions. But that does not mean that the Court’s decision was wrong. The U.S. Constitution should not be used to strike down state law based on little more than closely held personal intuitions about 18th century English usage. Nor should state law be invalidated for reasons that leave us thinking we are correct on a mere balance of the probabilities, i.e., 50% + epsilon. If unconstitutionality beyond a reasonable doubt is too high bar, we still need something approaching Thayer-type certainty. In my view, Prakash and Yoo have not met that bar.

Heritage Foundation Event on Justice Scalia's Legacy
Michael Ramsey

Via Josh Blackman, here is video of the Heritage Foundation' s event  The Legacy of Justice Scalia: Remembering a Conservative Legal Titan’s Impact on the Law.  Professor Blackman comments:

On Thursday, May 19, the Heritage Foundation hosted an event on Justice Scalia’s legacy. Noel Francisco gave a touching keynote. My discussion on Justice Scalia’s dissents, and the separation of powers, begins at 28:20. After I speak, Stephanos Bibas spoke about Scalia’s criminal procedure cases, and Rick Garnett discussed the freedom of religion. It was a heartfelt and thoughtful tribute to Nino.

05/23/2016

Greg Weiner on Judicial Restraint (with Some Thoughts in Response) [UPDATED]
Michael Ramsey

At Liberty Law Blog, Greg Weiner: Arise, Ye Prisoners of Scalia.  He begins:

The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.

Harvard Law Professor Mark Tushnet, noting that a majority of appellate judges are now Democratic appointees, observes as much at the Balkinization legal site. He urges liberals to rise up out of the “defensive crouch” in which they have been stooped for “generations” of conservative domination of the courts. The method by which he tabulates these “generations” is obscure, but the question his call raises is clear: On what grounds, precisely, is he wrong?

Professor Weiner then criticizes conservative/libertarian scholars who have abandoned judicial restraint for "judicial engagement":

Conservative and libertarian advocates of judicial engagement, by contrast, could argue with Tushnet about the law—no small thing, of course—but, having urged full exploitation of the courts, not about the question of institutional legitimacy.

Yet it is strange to exempt the courts from the question of legitimacy that those generally suspicious of power—libertarians prominent among them—would naturally ask of other branches of government. For every other branch, we set, or claim to, norms of institutional legitimacy (marking out what they may or may not do regardless of whether they have the capacity or prudential justification for doing them) and we look to the levers of institutional power that can maintain those norms.

And in conclusion:

It is true, of course, that advocates of judicial engagement can answer the Left flank with legal reasoning, and that their legal reasoning is sharp, incisive, and certainly superior to what the disciples of Brennan and Marshall propose. But as Tushnet shows, this is the very definition of a parchment barrier: the equivalent of giving the presidency and Congress, for example, no checks on one another save persuasion. Madison considered such an approach to the separation of powers, one in which each branch would be merely cajoled to swim in its own lane. He rejected it. So do the libertarians, at least with respect to the presidency and Congress. It is precisely because they reject such charitable readings of authority for the political branches that they advocate judicial engagement to constrain them. The problem is their resistance to comparable constraints on the judiciary.

By contrast, a Madisonian riposte to Tushnet’s activism would be for the other branches, backed by a restored republican morality among the people, to stop according the Supreme Court both mystical powers and the sacred deference that attends them. There is ample evidence that that body’s ambition reaches as far as the frontier of its options. Those frontiers, having been opened by unblinking deference, need to be rolled back. Impeachment is probably too bold a hope; a more aggressive use of jurisdiction-stripping and other measures is not.

But political restraints on the judiciary are less available in the hour of need because they were spurned in the hour of opportunity. The irony is that, by intending to narrow the strike zone for the political branches, which can be restrained by accessible political mechanisms, constitutional libertarians have widened it for the one branch on which they would place no controls. It is difficult to see how a Left-leaning judiciary, perhaps soon to be crowned by a Supreme Court with a fifth liberal, can be confined except by methods that many advocates of judicial engagement have placed out of ideological bounds.

Though I have great respect for Professor Weiner, I have some serious doubts about this post (and not just because it's not clear what Scalia has to do with it).  I think it is not correct to say that judicial engagement scholars and advocates resist constraints on the judiciary.  Although its obviously a diverse group, I would say (a) judicial engagement does not equate to no political checks on the Court or (even more so!) attributing to it "mystical powers and the sacred deference" (I'm quite sure this does not describe Randy Barnett, for example), and (b) many judicial engagement scholars (including Professor Barnett) endorse originalism as a constraint on courts.

Professor Weiner seems to say that the only line one can draw and defend is judicial restraint.  I do not understand why originalism is not as plausible a candidate.  Why can't we say: the problem with Tushnet's position is that it sees courts as enforcers of political morality, not as enforcers of the Constitution's original meaning?

Weiner would presumably respond that judges can't be trusted to be originalists.  I agree.  But they also can't be trusted to adhere to judicial restraint.  Judicial restraint is a very hard sell to judges, because it leaves them with nothing constitutionally interesting to do.  (Doubly so for constitutional lawyers).  Originalism might be more attractive because it calls for an active (albeit constrained) judicial role.  At least, it seems as plausible an avenue for introducing some internal constraint on courts as calls for strong judicial deference to the political branches.

 I don't mean to endorse some of the more aggressive conservative/libertarian versions of judicial engagement, which do indeed seem to approach judicial enforcement of political morality.  But it is not a binary choice between extreme engagement and extreme restraint.  Scalia's restrained engagement based on originalism is a defensible intermediate position.  One can adhere to it without opening the door to Professor Tushnet.

(Note: Professor Weiner's post has an interesting and sophisticated string of comments, including one from Evan Bernick -- a likely target of the post -- who promises a response).

UPDATE:  Here is Evan Bernick's response: Does Judicial Engagement Empower Progressives? Answering Professor Weiner’s Challenge 

05/22/2016

The Federalist Society's Executive Branch Review Conference
Michael Ramsey

This outstanding annual event was held last week in Washington DC.  Videos are available here.  The panels include:

Congressional Regulatory Reform Proposals

Who Wins at Administrative Hopscotch?

Regulatory Theory: Preemptive Rule-making vs. Common Law Redress

Regulatory Barriers to Innovation

Are Patents Under Attack in the Supreme Court?

Disparate Impact: Reducing Innovation in the Workplace?

Plus addresses by Senators Deb Fischer (R-Neb) and Dan Sullivan (R-Ak).

(But, I can't help adding, as a thought for the organizers: maybe a little attention to foreign affairs/national security activities as well next year?  The past 12 months were fairly big on executive foreign affairs activities of at least debatable constitutionality: the Iran deal, the Paris climate change agreement, the Trans Pacific Partnership, military action in lots of places without express congressional approval, releases from Guantanamo, overcoming encryption, a range of surveillance activities, etc.).

05/21/2016

Daniel Smyth: The Original Public Meaning of Amendment in the Origination Clause versus the Patient Protection and Affordable Care Act
Michael Ramsey

Daniel J. Smyth (LibertyBlog.org) has posted The Original Public Meaning of Amendment in the Origination Clause versus the Patient Protection and Affordable Care Act (British Journal of American Legal Studies, Vol. 6(2), forthcoming) pm SSRN. Here is the abstract:      

Robert Natelson recently published his article, The Founders’ Origination Clause and Implications for the Affordable Care Act, in the Harvard Journal of Law & Public Policy [Ed.: see here].  This article argued the original understanding of the scope of the Senate’s power to amend the House of Representative’s bills for raising revenue in the Origination Clause permits complete substitutes that are new bills for raising revenue, such as the Patient Protection and Affordable Care Act (PPACA). The original understanding of a constitutional word or provision is what the ratifiers of the Constitution thought was the meaning of the word or provision. When the Senate originated PPACA as an amendment to the House’s Service Members Home Ownership Tax Act of 2009, the Senate replaced the entire House bill, except for the bill’s number, with PPACA.

I consider the original public meaning — not the original understanding — of a constitutional word or provision, unless unrecoverable, to be the controlling meaning of that word or provision. The original public meaning is the meaning that a “reasonable speaker of English” during the founding era would have ascribed to the word or provision. 

My article argues the original public meaning of amendment is clear and disallows complete substitutes. For instance, founding-era dictionaries indicate an amendment was a change or alteration to something that transformed the thing from bad to better. This definition suggests an amendment must not be a complete substitute because an amendment must preserve at least a part of the thing being amended so that there is something to transform from bad to better.

My article further argues the preponderance of evidence suggests the original understanding of the scope of an amendment actually disallows complete substitutes. For example, much evidence from the Philadelphia Convention, Confederation Congress, state legislatures, and state conventions suggests the dominant view among the founders was that an amendment to the Articles of Confederation, the legal compact between 13 states enacted in 1781, could not be a complete substitute. 

My conclusion argues PPACA or any other such complete substitute violates the original public meaning of the scope of an amendment.

I read an earlier version of this paper and found it very persuasive (although I'm reluctant to disagree with Rob Natelson on anything).

05/20/2016

Lee Strang: State Court Judges are Not Bound by Nonoriginalist Supreme Court Interpretations
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted State Court Judges Are Not Bound by Nonoriginalist Supreme Court Interpretations (FIU Law Review, Vol 11, p.327, 2016) on SSRN. Here is the abstract:

In this brief Essay, I provide a tentative argument for modest state court interpretative independence. I argue that state courts possess interpretative independence from nonoriginalist U.S. Supreme Court interpretations. I also argue that state courts must follow all U.S. Supreme Court judgments (within the Court's jurisdiction) and originalist Supreme Court opinions. I close by suggesting that this modest state court interpretative independence is likely to advance federalism’s three primary values.

An interesting paper -- I saw Professor Strang present it at the FIU conference.  Here is the video.  I am not sure, on his premises, why state court judges should be bound by incorrect originalist Supreme Court interpretations either (though I see the problem with taking it that far).