Originalist Amicus Brief of David Gray, et al. in Carpenter v. United States
Michael Ramsey

David C. Gray (University of Maryland) and ten other professors have filed a Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States and posted it on SSRN.  Here is the abstract: 

Obtaining and examining cell site location records to find a person is a “search” in any normal sense of the word — a search of documents and a search for a person and her personal effects. It is therefore a “search” within the meaning of the Fourth Amendment in that it constitutes “examining,” “exploring,” “looking through,” “inquiring,” “seeking,” or “trying to find.” Nothing about the text of the Fourth Amendment, or the historical backdrop against which it was adopted, suggests that “search” should be construed more narrowly as, for example, intrusions upon subjectively manifested expectations of privacy that society is prepared to recognize as reasonable.

Entrusting government agents with unfettered discretion to conduct searches using cell site location information undermines Fourth Amendment rights. The Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” The Framers chose that language deliberately. It reflected the insecurity they suffered at the hands of “writs of assistance,” a form of general warrant that granted state agents broad discretion to search wherever they pleased. Such arbitrary power was “unreasonable” to the Framers, being “against the reason of the common law,” and it was intolerable because of its oppressive impact on “the people” as a whole. As emphasized in one of the seminal English cases that inspired the Amendment, this kind of general power to search was “totally subversive of the liberty of the subject.” James Otis’s famous speech denouncing a colonial writ of assistance similarly condemned those writs as “the worst instrument of arbitrary power,” placing “the liberty of every man in the hands of every petty officer.” 

Thus, although those who drafted and ratified the Fourth Amendment could not have anticipated cellphone technology, they would have recognized the dangers inherent in any state claim of unlimited authority to conduct searches for evidence of criminal activity. Cell site location information provides insight into where we go and what we do. Because this information is constantly generated and can be retrieved by the government long after the activities it memorializes have taken place, unfettered government access to cell site location information raises the specter of general searches and undermines the security of “the people.”

The signatories are David C. Gray (University of Maryland Francis King Carey School of Law); Laura Donohue (Georgetown University Law Center); Tracey Maclin (Boston University - School of Law); Danielle Keats Citron (University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society); Morgan Cloud (Emory University School of Law); William J. Cuddihy (Independent); Norman Garland (Southwestern Law School); Margaret Hu (Washington and Lee University - School of Law); Renee M. Hutchins (University of Maryland Francis King Carey School of Law); Luke Milligan (University of Louisville - Louis D. Brandeis School of Law); and George C. Thomas III (Rutgers Law School).

(For a somewhat contrary view see here from Orin Kerr).


Neal Goldfarb on Carissa Hessick on Corpus Linguistics
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb: Some comments on Hessick on corpus linguistics.  From the introduction: 

Up until now, the use of corpus linguistics in legal interpretation has gotten almost entirely good press—probably because almost all the press it’s gotten has come from its advocates. That situation has now changed, though, with the posting on SSRN of a paper by UNC law professor Carissa Hessick, who was one of the participants at the BYU law-and-corpus-linguistics symposium this past February. (Hessick has blogged about her paper at Prawfsblawg, here and here.) [Ed.: noted here].

The paper, “Corpus Linguistics and the Criminal Law” (pdf), argues that corpus linguistics “is not an appropriate tool” for interpreting statutes. Although it deals specifically with using corpus linguistics in interpreting criminal statutes, and Hessick’s concerns may not be as strong as to other areas of the law, much of her criticism would apply across the board. In this post I am going to discuss some of the issues that the paper raises, and if you’ve followed this blog before, you won’t be surprised to find out that I disagree with Hessick’s conclusion.

(Via How Appealing).


Tenth Circuit Originalism: Vogt v. City of Hays
Michael Ramsey

My colleague Donald Dripps points to this recent opinion from the Tenth Circuit, now on petition to the Supreme Court: Vogt v. City of Hays.  The issue is whether the 5th Amendment self-incrimination clause is violated when a statement is used at a
probable cause hearing rather than at a trial.   The court  (in an opinion by Judge Bacharach, joined by Judges Hartz and McHugh) said yes, with a heavily originalist analysis -- I quote at some length to give a sense of the originalist emphasis (footnotes and some citations omitted).

After finding no controlling precedent, the court begins with original meaning analysis:

[We conclude] that the right against self-incrimination is more than a trial right. In reaching this conclusion, we rely on

  • the text of the Fifth Amendment, which we interpret in light of the common understanding of the phrase “criminal case,” and
  • the Framers’ understanding of the right against self incrimination.

The Fifth Amendment provides that no person shall be “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V (emphasis added). The text of the Fifth Amendment does not contain

  • the term “trial,” which appears in the next two amendments, or
  • the term “criminal prosecution,” which is used in the next amendment.

… Indeed, on its face, the term “criminal case” appears to encompass all of the proceedings involved in a “criminal prosecution.”

“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning . . . .” United States v. Sprague, 282 U.S. 716, 731 (1931). To determine the commonly understood meaning of the phrase “criminal case” at the time of ratification (1791), we examine dictionary definitions from the Founding era. See Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 365 (2014); see also William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1338 n.99 (2007) (stating that contemporaneous dictionaries “obviously . . . provide some guidance to the commonly understood meaning of a particular word at the time that word was used in the constitutional text”).

The most authoritative dictionary of that era was Noah Webster’s 1828 dictionary, An American Dictionary of the English Language. See John A. Sterling, Above the Law: Evolution of Executive Orders (Part One), 31 UWLA L. Rev. 99, 107 (2000) (stating that most historians use Noah Webster’s 1828 dictionary when trying to determine the meaning of words during adoption of the Constitution); see also Charles Wood, Losing Control of America’s Future—The Census, Birthright Citizenship, and Illegal Aliens, 22 Harv. J.L. & Pub. Pol’y 465, 478 (1999) (stating that Noah Webster’s 1828 dictionary was “the first and for many years the 16 authoritative American dictionary”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 B.Y.U. L. Rev. 1393, 1425 (2012) (describing Noah Webster’s 1828 dictionary as “an incredible achievement” and as a “dominant” source since its publication); Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 389-90 (2014) (stating that the Supreme Court often cites Noah Webster’s 1828 dictionary as evidence of the original meaning of the Constitution, perhaps based on a belief “that the dictionary may reflect better the ways in which Americans used and understood the words in the Constitution”). Webster’s 1828 dictionary defines “case” as “[a] cause or suit in court,” stating that the term “is nearly synonymous with cause.” Noah Webster, Case, An American Dictionary of the English Language (1st ed. 1828). And the dictionary defines the “nearly synonymous” term “cause” as “[a] suit or action in court.” Id., Cause. Similarly, N. Bailey’s 1789 dictionary broadly defines “case” as a “thing, matter, question.” N. Bailey, The Universal Etymological English Dictionary, Case (26th ed. 1789).

The Founders’ understanding of the term “case” suggests that the Fifth Amendment encompasses more than the trial itself. See Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go Down that Wrong Road Again,” 74 N.C. L. Rev. 1559, 1627 (1996). “If the Framers had meant to restrict the right to ‘trial,’ they could have said so.” Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1014 (2003). ...

Then the court looks to history for further support:

We are aided not only by Founding-era dictionary definitions and [Supreme Court decisions] but also by the Framers’ understanding of the phrase “in any criminal case.” … 

One clue involves the changes in the Fifth Amendment from drafting to ratification. The amendment had been drafted by James Madison, who omitted the phrase “criminal case”:

No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation.

James Madison, Remarks in Debate in the House of Representatives (June 8, 1789) (emphasis added), reprinted in 1 Debates and Proceedings in the Congress of the United States 448, 451-52 (Joseph Gales ed., 1834); United States Congress, Debates and Proceedings in the Congress of the United States 451-52 (Washington, D.C. 1834). This language “applied to civil as well as criminal proceedings and in principle to any stage of a legal inquiry, from the moment of arrest in a criminal case, to the swearing of a deposition in a civil one.” Leonard W. Levy, Origins of the Fifth Amendment 423 (1968).

In the floor debate on whether to adopt the Bill of Rights, Representative Laurance expressed concern that Madison’s wording would conflict with “laws passed.” Statement of Representative John Laurance (Aug. 17, 1789), reprinted in 1 Debates and Proceedings in the Congress of the United States 782, 782. To avoid this conflict, Representative Laurance proposed to add the phrase “in any criminal case.” Id. Representative Laurance’s language was accepted in the House and Senate. Leonard W. Levy, Origins of the Fifth Amendment 424-26 (1968).

It is unclear which “laws” Representative Laurance was talking about. One possibility was the proposed Judiciary Act, which would allow the judiciary to compel production of documents in civil cases. Another possibility was the Collections Act, which allowed officials to require oaths in customs declarations. Act of July 31, 1789, ch. 5 section 13, 1 Stat. 29, 39-40; see Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 705 n.450 (1999). But whichever law was at risk, Representative Laurance was apparently trying to distinguish between potential criminal liability and civil liability. See Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1017 (2003) ...

When Representative Laurance proposed to confine the Fifth Amendment to a “criminal case,” there was a consensus that the right against self-incrimination was not limited to a suspect’s own trial. To the contrary, “the historical sources show that the right against selfaccusation was understood to arise primarily in pretrial or preprosecution settings rather than in the context of a person’s own criminal trial.” Id. at 1017-18. If this right were limited to one’s own trial, the right would have served little purpose, for criminal defendants were then unable to testify in their own criminal cases. See Ferguson v. Georgia, 365 U.S. 570, 574 (1961) (stating that when the United States was formed, “criminal defendants were deemed incompetent as witnesses”).

The most natural place for concern about compelled testimony would have been in proceedings outside of criminal trials, such as grand jury proceedings. See David Rossman, Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution, 26 Ga. St. U.L. Rev. 417, 488 (2010).

After adopting Representative Laurance’s language, the Senate reorganized the cluster of rights that ultimately went into the Fifth and Sixth Amendments. “In what was to be the Sixth Amendment the Senate clustered together the procedural rights of the criminally accused after indictment.” Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see also Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1013 (2003) (“[T]he Sixth Amendment plainly deals with rights that protect ‘the accused’ during the court phase of prosecutions, including trials.”). This grouping of Sixth Amendment rights omitted the right against self-incrimination, which was put into the Fifth Amendment with other rights that unambiguously extended to pretrial proceedings as well as the trial:

That the self-incrimination clause did not fall into the Sixth Amendment indicated that the Senate, like the House, did not intend to follow the implication of 23 [Section 8 of the 1776 Virginia Declaration of Rights] . . . that the right not to give evidence against oneself applied merely to the defendant on trial. The Sixth Amendment, referring explicitly to the accused, protected him alone. Indeed the Sixth Amendment, with the right of counsel added, was the equivalent of Virginia’s Section 8 and included all of its rights except that against selfincrimination. Thus, the location of the self-incrimination clause in the Fifth Amendment rather than the Sixth proves that the Senate, like the House, did not intend to restrict that clause to the criminal defendant only nor only to his trial. The Fifth Amendment, even with the self-incrimination clause restricted to criminal cases, still puts its principles broadly enough to apply to witnesses and to any phase of the proceedings.

Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see also Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1009-13 (2003) (“[T]he right against compelled selfaccusation is in the wrong amendment to be a ‘trial right.’”); Michael J. Zydney Mannheimer, Ripeness of Self-Incrimination Clause Disputes, 95 J. Crim. L. & Criminology 1261, 1322 (2005) (“It appears that the placement of the Self-Incrimination Clause in the Fifth Amendment rather than the Sixth signifies that a ‘criminal case’ can exist before a ‘criminal prosecution[]’ commences.” (alteration in original)).

In sum, there is nothing to suggest that the Framers were seeking to confine the right against self-incrimination to trial. The Founders apparently viewed the right more broadly, envisioning it to apply beyond the trial itself.

Three very quick thoughts:  (1)  Originalism is at least part of the mainstream of our law, not a radical outlier; (2) note the extent to which the court looks to academic studies for support -- academic originalism need not be impractical; and (3) for originalism critics who think originalism is impossible or can be performed only by historians, this seems like a good target: what's wrong with it?  (Not my area, so I have no opinion on the outcome, but the originalist methodology seems plausible on its face).

(Thanks again to Donald Dripps for the pointer).


Jeffrey M. Schmitt: A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands
Michael Ramsey

Jeffrey M. Schmitt (University of Dayton - School of Law) has posted A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands (Harvard Environmental Law Review, forthcoming 2018) on SSRN.  Here is the abstract:

The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause to justify permanent federal landownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated purpose. This scholarly debate has become increasingly important in recent years, as a popular movement for state ownership of federal land has reemerged in the West. 

This Article argues that the debate over the history of the Property Clause should move beyond the Founding. The original public meaning of the text, intent of the framers, and precedent of the early Supreme Court simply do not resolve the issue of whether Congress’s Duty to Dispose includes the power to permanently retain land within the states. This Article therefore provides the first detailed examination of how Congress’s Power to Dispose has been understood since the Founding. It concludes that, although western extremists have repeatedly challenged Congress’s power when federal land policy has restricted western development, dominant opinion has always supported a broad construction of Congress’s power. In fact, those who favor federal land ownership have long argued that giving land to individual states would violate a constitutional obligation for Congress to use the land for the common benefit. When constitutional history is properly applied to Congress’s Power to Dispose, it therefore strongly supports federal land ownership.

(Via Larry Solum at Legal Theory Blog, who says: "Very interesting and recommended!").

I haven't looked at the issue closely, but it seems a stretch to say that Congress having the power to "dispose" of land implies a duty to do so. Nor does it seem that Congress needs an enumerated power to "retain" land, because the land does not belong to Congress.  Of course, the land (or other property) would need to be obtained for the United States pursuant to an enumerated power (by Congress or another branch), but once obtained Congress has -- by the same clause of Article 4, Section 3 -- the power to manage it (to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.").

Mostly I'm just happy Professor Schmitt uses "A Historical Reassessment ..." rather than the malign "An Historical Reassessment..."


Lawrence Solan: Patterns in Language and Law
Michael Ramsey

Lawrence M. Solan (Brooklyn Law School) has posted Patterns in Language and Law (International Journal of Language & Law, Vol. 6, pp. 46, 2017) on SSRN.  Here is the abstract:

Our language faculty is rule-like in some ways, pattern-like in others, as Steven Pinker (1999) has shown. Much of syntax is describable a set of rules, whereas the range of meanings attributed to a word is best described in terms of patterns. Laws are typically written as rules, but they are written in words, many of which display pattern-like arrays of usage. Legal systems default to an expression’s “ordinary meaning,” requiring estimates of patterns of usage. Recently, advances in corpus linguistics have been adduced by judges and legal scholars in this regard. Furthermore, open-textured legal terms, including the word “pattern” itself, are by their nature more describable in terms of patterns of their application than in terms of hard-and-fast rules. Apart from linguistic issues in legal interpretation, legal systems value coherence, requiring that like things be treated alike, often focusing on patterns of how laws are applied. At times, however, these patterns uncover biases in a law’s application. This article attempts to describe how this duality in both linguistic description law interact with each other.


Carissa Byrne Hessick on Corpus Linguistics
Michael Ramsey

At Prawfsblawg, Carissa Byrne Hessick (UNC): Corpus Linguistics and Criminal Law.  From the introduction:

In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference.  The panel promoted a new method for statutory interpretation: corpus linguistics.  Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court.  Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.

It is easy to see why corpus linguistics is appealing.  It offers a new twist on textualism.  It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry.  At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term.  And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction.  The problem is, judges often disagree over what the plain or ordinary meaning of a term is.  As a result, textualism sometimes looks unpredictable or subjective.

Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search.  The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.

... After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.

I lay my concerns out more fully in this short essay.

Plus in the comments, Orin Kerr suggests:

I would think corpus linguistics has value to an originalist engaging in constitutional interpretation but less value to a textualist engaging in statutory interpretation. An originalist engaging in constitutional interpretation may want to know the original public meaning of a particular word or phrase, which is generally a matter of public usage in some time in the past. A study of public sources from that period might help illuminate that meaning to a modern reader, and a more rigorous study of those sources might give the modern reader greater confidence that a particular interpretation was the one the public would have taken at the time. On the other hand, I don't think of textualist approaches as generally involving the same act of reconstructing a public meaning. I think of textualism more a matter of understanding how a careful law-trained reader of the statutory text -- one versed in precedents and court rulings about that phrase -- thinks that language means. Given that, I'm less sure that a corpus linguistics approach can shed light on the meaning of a statute.


John McGinnis on Judicial Appointments
Michael Ramsey

At Liberty Law Blog, John McGinnis: How Trump’s Judicial Nominees Put Democrats in a Bind.  From the introduction: 

Donald Trump’s judicial nominations have been the most successful part of a presidency that has often misfired.  The nominees are not only a tribute to the President but to an idea and to an organization. The idea is originalism—the notion that the Constitution’s provisions should be interpreted according the meaning they had at the time they were enacted. They should not become vessels for judges to update their meaning.

The organization is the Federalist Society.  It is established around the ideal of originalism, and enlists thousands of lawyers around the nation in defending it. Now more than thirty years old, it has gained in strength over the decades. And some of its best and most articulate members have become Trump’s nominees for the federal district and appellate courts.

The combination of a powerful idea and a far flung organization has made it easy for Republicans to unite behind the President’s nominees, as they have not yet been able to unite behind any other policy of importance. And the result has also been to make the Democrats look foolish and extreme, because originalism has a common sense appeal that is difficult to attack and the nominees have qualifications and abilities that are difficult to assail.


William Kelley: Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument
Michael Ramsey

William Kelley (Notre Dame Law School) has posted Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument (Notre Dame Law Review, Vol. 92, No. 5, 2017).  Here is the abstract:

Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his tenure, in particular his preference for rules versus standards as a method of cabining judicial discretion and his devotion to constitutional originalism. The essay concludes first that Justice Scalia embraced a broad view of Congress's power to delegate because he (again, consistently with the Court's longtime understanding) believed that the line-drawing required for courts to police delegations was ultimately a matter of discretionary judgment that judges are unsuited to make. With respect to his nondelegation doctrine jurisprudence's consistency with originalism, it is a gap in his jurisprudence that he never took on that question. That gap is best understood, the essay suggests, by his attraction to the deferential nature of the Court's longstanding precedents and the doctrine of stare decisis.

This essay is part of the Notre Dame Law Review symposium on Justice Scalia.  The full issue is available here (contributions from Judge Brett Kavanaugh, Amy Coney Barrett (Notre Dame), me, Brian Fitzpatrick (Vanderbilt), Kevin Walsh (Richmond), Alan Meese (William and Mary), Abbe Gluck (Yale), Anthony Bellia (Notre Dame), William Kelley (Notre Dame), Bradford Clark (GW), Gary Lawson (BU), and Adrian Vermeule (Harvard)).  My essay is also available on SSRN: Beyond the Text: Justice Scalia's Originalism in Practice.

As to the nondelegation doctrine, Whitman was an atrocious opinion from an originalist perspective, regardless of whether the outcome was correct.   Although arguably defensible on the basis of precedent, I think it arose mainly from the Justice's concern over line-drawing problems (as Professor Kelley suggests).  Moreover, the respondents did a poor job of invoking originalist arguments.  Justice Thomas wrote, concurring in the majority opinion:

The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the "intelligible principle" requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J. W Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928), the Constitution does not speak of "intelligible principles." Rather, it speaks in much simpler terms: "All legislative Powers herein granted shall be vested in a Congress." U. S. Const., Art. 1, § 1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than "legislative."

As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers.

This failure to invoke originalist arguments would likely not happen today.  And unease over the constitutional foundations of the administrative state is stronger now as well.  If Whitman had come later, I think we would have seen a different set of briefs and opinions (although perhaps not a different result).


New Book: "Supreme Court Expansion of Presidential Power" by Louis Fisher
Michael Ramsey

Recently published: Supreme Court Expansion of Presidential Power: Unconstitutional Leanings (University Press of Kansas 2017), by Louis Fisher (The Constitution Project/formerly historian with the Library of Congress).  Here is the book description from Amazon:

In the fourth of the Federalist Papers, published in 1787, John Jay warned of absolute monarchs who “will often make war when their nations are to get nothing by it.” More than two centuries later, are single executives making unilateral decisions any more trustworthy? And have the checks on executive power, so critical in the Founders’ drafting of the Constitution, held? These are the questions Louis Fisher pursues in this book. By examining the executive actions of American presidents, particularly after World War II, Fisher reveals how the Supreme Court, through errors and abdications, has expanded presidential power in external affairs beyond constitutional boundaries—and damaged the nation’s system of checks and balances.

Supreme Court Expansion of Presidential Power reviews the judicial record from 1789 to the present day to show how the balance of power has shifted over time. For nearly a century and a half, the Supreme Court did not indicate a preference for which of the two elected branches should dominate in the field of external affairs. But from the mid-thirties a pattern clearly emerges, with the Court regularly supporting independent presidential power in times of “emergency,” or issues linked to national security. The damage this has done to democracy and constitutional government is profound, Fisher argues. His evidence extends beyond external affairs to issues of domestic policy, such as impoundment of funds, legislative vetoes, item-veto authority, presidential immunity in the Paula Jones case, recess appointments, and the Obama administration's immigration initiatives. 

Fisher identifies contemporary biases that have led to an increase in presidential power—including Supreme Court misconceptions and errors, academic failings, and mistaken beliefs about “inherent powers” and “unity of office.” Calling to account the forces tasked with protecting our democracy from the undue exercise of power by any single executive, his deeply informed book sounds a compelling alarm.

And from the reviews:

“In this authoritative account, Louis Fisher demonstrates that federal courts since the 1930s have greatly expanded presidential power, and have done so beyond any fair reading of the original intent of the Framers and the text of the Constitution. They have done so through erroneous readings of historical precedent, the development of doctrines that are based on personal biases toward executive power, and through abdication of their responsibilities to adjudicate by seeking refuge in procedural dodges. Fisher argues that not only the courts should be held accountable for misleading approaches, biased doctrines, and abdication of function, but so should a large part of the public law scholarly community. For the most part legal scholars have not mined the historical record, nor questioned presumptions about executive competence. The result is that both judges and the scholars who comment on their work have legitimized executive power to an extent that has done serious damage not only to the constitutional system, but also to the viability and legitimacy of public policy. Fisher is the dean of public law scholars, and he has produced a hugely valuable study of the non-use and misuse of judicial power in legitimizing the vast expansion of presidential powers.”―Richard M. Pious, Adolph and Effie Ochs Professor Emeritus, Barnard College and Columbia University

"Louis Fisher’s richly documented latest book sets forth a compelling historical narrative of the American republic from 1789 to the present that constitutes a serious indictment of the Supreme Court’s unique contributions in creating a Presidency that possesses powers that are not only dangerous but are at odds with foundational principles of the constitutional order such as separation of powers and checks and balances. Fisher’s Supreme Court Expansion of Presidential Power is the culmination of decades of learning and consideration and should be required reading for anyone invested in the preservation of an American republic committed to democratic values, individual liberty, and the rule of law."― David Rudenstine, author of The Age of Deference: The Supreme Court, National Security, and the Constitutional Order

“Louis Fisher is the nation’s preeminent scholar on separation of powers issues. His mastery of both the big picture and the fine details shines through in this straight-forward, authoritative account of how the Supreme Court has helped to enable the aggrandizement of executive power. Supreme Court Expansion of Presidential Power: Unconstitutional Leanings is another essential contribution to Fisher’s invaluable library of scholarly work.”―Jeffrey Crouch, author of The Presidential Pardon Power

“Fisher once again shows why he is considered one of the preeminent constitutional scholars today. His latest book is a well researched and thought-provoking study of the expansion of presidential powers. Offering great insight Fisher explores how the judiciary has done much to aid the presidency in the accumulation of its powers, particularly in external affairs. The record Fisher presents should be both insightful and troubling for those who believe in constitutional governance. His book should be a must read for all.”―Mitchel A. Sollenberger, author of The President’s Czars: Undermining Congress and the Constitution


The Original Meaning of the Fourth Amendment: What Does "the Place to Be Searched" Mean?
Mike Rappaport

Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject.  The text of the Fourth Amendment is filled with significant interpretive questions.

Let me start with an issue that grows out of the language of the second portion of the Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A careful reading of the italicized language raises a question: why does the clause speak of “the place to be searched” in the singular, but “the persons or things to be seized” in the plural?  After all, it would have been more consistent for the Amendment to have read “the places to be searched, and the persons or things to be seized.”  Was this intentional, so that search warrants can only authorize the search of a single place?

I have certainly seen many people make fun of these types of textual arguments.  The idea that you would confer significance on a slight textual change seems ridiculous to them.  “There are important policy questions here that should not be resolved by small textual differences.”  But treating such small textual differences as consequential can make sense under both a textualist original public meaning approach and under an approach that treats the Constitution as written in the language of the law, which often follows a strong textualism.

Fourth Amendment scholar William Cuddihy believes that the historical sources strongly support the view that this textual difference was intended. In particular, he relies on  legal treatises at the time, state statutes, and federal statutes.

Cuddihy notes that the federal Collection Act “imposed the highest possible standard of particularity by restricting all federal search warrants to single structures, even if those structures were not houses.  Every warrant had to specify a single location: a house, store ‘or other place.’"

He also notes that “most states had standardized the specific warrant by 1789, and nearly all of those states, in turn, limited search warrants to single, not plural, locations.”  He writes:

Under the Massachusetts imposts of 1782-86, the informant designated, typically, the “particular dwelling house or store” that he suspected, and the warrant was confined to “such house or store.”  The corresponding Rhode Island act of 1786 provided a search warrant “particularly discriminating the Dwelling House, Store, Ware-house, or other Building.”  Also in 1786, Delaware enacted a warrant specifying a single “House, Out-house, Barn or other Place.”  A similar requirement existed in Pennsylvania. New Hampshire in 1777 and Virginia in 1787 established official forms for certain warrants that had only a single blank for the name of the lone person whose house was to be searched.

Finally, Cuddihy claims that “the legal treatises that Americans wrote and read during the Fourth Amendment’s formation impliedly repudiated multiple-specific warrants by providing examples of specific warrants that always confined the search to a single location.  By implication, any warrant that allowed several houses to be searched was unreasonable even if it specified those houses.”

This evidence, overall, seems reasonably strong, although one cannot know for sure until one actually looks at the primary sources.  One limitation, though, is that much of the evidence seems to involve a textual inference that reference to “a house” means a single house.  Not a problematic inference, but one would want some additional evidence.

There is some evidence that this issue was in the minds of people and therefore the text was not merely a coincidence, but actually spoke to a contended issue.  For example Cuddihy notes that “Benjamin Gale, who represented Connecticut in the Congress of 1789 [which proposed the Fourth Amendment], had earlier condemned multiple-specific warrants as infringements of ‘natural, civil, and constitutional rights.’”