Or Bassok: Interpretative Theories as Roadmaps to American Identity
Michael Ramsey

Or Bassok  (European University Institute - Department of Law) has posted Interpretative Theories as Roadmaps to American Identity (Global Constitutionalism, forthcoming) on SSRN.  Here is the abstract:      

As long as the American Constitution serves as the focal point of American identity, many constitutional interpretative theories also serve as roadmaps to various visions of American constitutional identity. Using the debate over the constitutionality of the Patient Protection and Affordable Care Act, I expose the identity dimension of various interpretative theories and analyze the differences between the roadmaps offered by them. I argue that according to each of these roadmaps, courts’ authority to review legislation is required in order to protect a certain vision of American constitutional identity even at the price of thwarting Americans’ freedom to pursue their current desires. The conventional framing of interpretative theories as merely techniques to decipher the constitutional text or justifications for the Supreme Court’s countermajoritarian authority to review legislation and the disregard of their identity function is perplexing in view of the centrality of the Constitution to American national identity. I argue that this conventional framing is a result of the current understanding of American constitutional identity in terms of neutrality toward the question of the good. This reading of the Constitution as lacking any form of ideology at its core makes majority preferences the best take of current American identity, leaving constitutional theorists with the mission to justify the Court’s authority to diverge from majority preferences.

Via Larry Solum at Legal Theory Blog, who adds:

Highly recommended, with an intriguing discussing of "identity originalism."  Bassok is surely right that some appeals to original meaning (especially outside the academy) are entwined with the narrative and identity functions of the Constitution and the framing era, but I am not convinced that "identity originalism" exists as an approach to constitutional interpretation (as opposed to a motivation for originalist approaches).


Harold Anthony Lloyd: Pragmatics and Textualist Error
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Law's "Way of Words": Pragmatics and Textualist Error on SSRN.  Here is the abstract:      

Lawyers and judges cannot adequately address the nature of text, meaning, or interpretation without reference to the insights provided by linguists and philosophers of language. Exploring some of those insights, this article focuses upon what linguists and philosophers of language call “pragmatics.” Pragmatics examines the relations between words and users rather than the relations of words to words (syntax) or the relations of words to the world (semantics). In other words, pragmatics studies how language users actually use and interpret words and other signs in communication. 

Pragmatics recognizes that speaker meaning can differ from (and even contradict) linguistic meaning including the literal meaning of text. In its proper context, for example, “Bob is indeed a good lawyer” can ironically mean just the opposite. Pragmatics also recognizes that relevant text is not a thing-in-itself that is simply given. Good lawyers look at such things as purpose and cohesion when determining relevant text. They do not simply take their opponent’s (or even their client’s) assertions of relevance. 

Pragmatics also provides lawyers with a number of specific concepts and tools which are helpful in determining speaker meaning. For user convenience, this article attempts to set out in one place a number of such concepts and tools. These include: (1) types of cohesion that help determine relevant text, (2) types of context that help determine meaning, (3) pragmatic principles of construction such as principles of relevance and politeness, and (4) important pragmatic notions or devices such as anaphora, cataphora, ellipsis, deixis, presupposition, unstated premises, entailment, and implementives.

Finally, as a recurring example (among others) of pragmatics in action, this article examines from multiple perspectives textual issues raised in King v. Burwell, 576 U.S. __ (2015).



Josh Blackman on House of Representatives v. Burwell and Congressional Standing
Michael Ramsey

Josh Blackman has an extensive analysis of the recent District Court decision in House of Representatives v. Burwell, which found that the House as an institution has standing to sue the President for spending money without an appropriation.

(Plus more from Elizabeth Price Foley at Instapundit here.)

It's not an originalist opinion, although the core conclusion derives some logical force from the Constitution's text and structure:

... [T]he House has suffered a concrete, particularized injury that gives it standing to sue. The Congress (of which the House and Senate are equal) is the only body empowered by the Constitution to adopt laws directing monies to be spent from the U.S. Treasury. See Dep’t of the Navy v. FLRA, 665 F.3d 1339, 1348 (D.C. Cir. 2012) (“Congress’s control over federal expenditures is ‘absolute.’”) (quoting Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992)); Nevada v. Dep’t of Energy, 400 F.3d at 13 (“[T]he Appropriations Clause of the U.S. Constitution ‘vests Congress with exclusive power over the federal purse’”) (quoting Rochester, 960 F.2d at 185); Hart’s Adm’r v. United States, 16 Ct. Cl. 459, 484 (1880) (“[A]bsolute control of the moneys of the United States is in Congress, and Congress is responsible for its exercise of this great power only to the people.”), aff’d sub nom. Hart v. United States, 118 U.S. 62 (1886). Yet this constitutional structure would collapse, and the role of the House would be meaningless, if the Executive could circumvent the appropriations process and spend funds however it pleases. If such actions are taken, in contravention of the specific proscription in Article I, § 9, cl. 7, the House as an institution has standing to sue.

Significantly for originalists, the opinion relies to some extent on the Supreme Court's Arizona redistricting case, which found that the Arizona legislature had standing to challenge an Arizona constitutional rule that (according to the legislature) deprived it of its right under the U.S. Constitution to control redistricting.  Justice Scalia, joined by Justice Thomas, dissented as to standing in that case, and it does seem that if the Arizona legislature lacked standing, likewise the House should lack standing.

But I am not sure about Justice Scalia's standing analysis as an originalist matter.  Here is his central contention from the Arizona case:

What those who framed and ratified the Constitution had in mind when they entrusted the “judicial Power” to a separate and coequal branch of the Federal Government was the judicial power they were familiar with—that traditionally exercised by English and American courts. The “cases” and “controversies” that those courts entertained did not include suits between units of government regarding their legitimate powers. The job of the courts was, in Chief Justice Marshall’s words, “solely, to decide on the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170 (1803).

True, there's likely no precedent for these sorts of suits under eighteenth century English law, giving rise to the question whether they are part of the "judicial Power."  But England didn't have a separation of powers defined by a written constitution and enforceable by judicial review.  So maybe English practice shouldn't be decisive.  And we (and Justice Scalia) readily accept institutional standing for states to sue the federal government and each other, as part of the Constitution's implicit design, even though there was (naturally) no counterpart for such suits in English law, and even though state vs. federal suits are not (directly) brought to "decide on the rights of individuals."  Scalia's opinion actually turns entirely on a distinction between state vs. federal suits and "suits between units of [the same] government regarding their legitimate power." (emphasis added).

I don't see an originalist basis for that distinction.  In a separated power system, the horizontal division of power among constitutionally distinct institutions at the national level is analogous to the vertical division of powers between constitutionally distinct entities at the national and state level.

That doesn't mean that all institutional standing cases should come out in favor of standing.  As to particular claims, the injury, causation or redressibility may be lacking.   In this case, though, the House seems to have a fair claim that, as to appropriations, the President is (arguably) exercising a right reserved exclusively to Congress and that the institution is thereby harmed by the loss of that exclusive right.  Unless there is a blanket rule against institutional standing (as Scalia favors) this seems a strong claim.

(But, as an aside, I don't see how the House hopes to win this case without the votes of Scalia and Thomas).

A further thought: I can't help but object to one aspect of the District Court's opinion, differentiating standing and the political question doctrine.  She writes (quotations and citation omitted, emphases added):

There is a significant difference between determining whether a federal court has jurisdiction of the subject matter and determining whether a cause over which a court has subject matter jurisdiction is justiciable. Jurisdiction governs a court’s authority to hear a case; justiciability pertains to the advisability of hearing the case.

Justiciability counsels the avoidance of political cases or controversies. The term ‘political’ has been used to distinguish questions which are essentially for decision by the political branches from those which are essentially for adjudication by the judicial branch. Hence the “political question” doctrine. That self-imposed limitation [ed.: !] bars our jurisdiction only when the Constitution textually commits the issue to be adjudicated in the case to a coordinate political department, or when there is a lack of judicially discoverable and manageable standards for resolving it.

No, no, no!  (Not as an original matter anyway, and as re-affirmed in Zivotofsky v. Clinton).  Non-justiciability is a constitutional command: the matter is textually committed to another branch by the Constitution or there are no judicially manageable standards and thus the issue is beyond the judicial power to resolve.  This is not about the "advisability" of hearing the case; it's about whether the Constitution allows the court to hear the case.  The political question doctrine is jurisdictional, as much as standing is.  (And the supposed "prudential" parts of it, traceable to the profoundly non-originalist opinion in Baker v. Carr, are as suspect as the supposed prudential parts of standing doctrine.)

But I agree with the District Court that the political question doctrine doesn't bar this suit: it's a pure question of constitutional interpretation, exactly in line with Zivotofsky.


Cass Sunstein & Adrian Vermeule: On the Plural Aims of Administrative Law
Michael Ramsey

Cass R. Sunstein & Adrian Vermeule (Harvard Law School) have posted The New Coke: On the Plural Aims of Administrative Law (Supreme Court Review, forthcoming) on SSRN.  Here is the abstract:      

In the early twenty-first century, public law is being challenged by a fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challengers frequently refer to the specter of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke. The New Coke is a shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. Despite its historical guise, the New Coke is a living-constitutionalist movement, a product of thoroughly contemporary values and fears -- perhaps prompted by continuing rejection, in some quarters, of the New Deal itself, and perhaps prompted by a reaction by some of the Justices to controversial initiatives from more recent presidents. In two important decisions in 2015, however, a supermajority of the Court refused to embrace the New Coke, and properly so. Instead the Court issued the long-awaited Vermont Yankee II, insisting that courts are not authorized to add procedures to those required by the APA, and reaffirmed the validity of Auer deference to agency interpretations of their own regulations. The Court’s approach promises to honor the multiple goals of administrative and constitutional law without embracing novel, ungrounded claims that betray basic commitments of the public legal order. For now, the center holds.

(Via Michael Greve at Liberty Law blog, who comments [harshly] here.)


Appointing an Originalist Supreme Court Justice
Mike Rappaport

In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment.

Whelan largely agrees with this, but he points out that only certain Presidents will be willing to incur those costs. That is certainly true. I would assume that both sides believe that it is important to elect a President who is committed to originalism and lawfulness, and therefore who would be willing to fight the good fight on this issue.

2. Paper trails are an asset, not a disqualification.

Whelan agrees with Blackman and Barnett’s view that “SCOTUS-wannabees” who “spend their careers seeking the approval of others” are “the exact sort of people who will be cowed by the Beltway social pressures and the New York Times editorial page.” While I agree that paper trails provide useful information, obviously they come with costs. If one’s party does not control the Senate, then a controversial paper trail can be a big liability and lead to a failed nomination. The loss of the Bork nomination was harmful not only to President Reagan, but to originalism. Of course, Bork’s problem was not simply his paper trail, but also his ineffectiveness in testifying before the Senate.

3. Reject clichéd calls for “judicial restraint.”

Whelan disagrees here, arguing that cliches can be useful and that one must be concerned not only with underenforcement of the Constitution (which judicial restraint might suggest) but also overenforcement (by protecting rights that are not in the Constitution).

The disagreement here largely turns on the fact that Blackman and Barnett are in favor of a much more “engaged” or “activist” judiciary than Whelan is.

I tend to be skeptical of judicial restraint. My working view is that the Constitution should be interpreted in a neutral manner, neither placing a finger on the scale for unconstitutionality nor constitutionality. It is true that there is some evidence, put forward by John McGinnis, that might be used to show that the judiciary should not hold provisions unconstitutional unless there is a manifest contradiction or some higher showing than a neutral standard would require. But so far I remain skeptical.

4. Focus on the Constitution, not issues du jour.

While Whelan again disagrees, Blackman and Barnett has some good points here about how it is difficult to predict which future issues will come before the Court and how decisions about specific cases do not indicate how the judge will decide other cases. Blackman and Barnett also argue persuasively that the President should only choose judges who are originalists. It is true, as Whelan argues, that issues du jour can be revealing. Therefore, I would of course recommend considering both the judge’s jurisprudence and his proposed resolution of particular issues, but with the focus on the jurisprudence.

5. Focus on clauses, not cases.

I agree with Blackman and Barnett here that a focus on clauses is extremely useful. While Whelan argues that answering questions about clauses can be avoided by prospective justices just as easily as questions about cases, I don’t think that is quite right. The clause is a more general matter and it is harder for a prospective justice to ignore general questions.

In the end, it is easy to overstate the disagreements of Whelan with Blackman and Barnett, since both sides are in favor of originalism, albeit different versions. Still, these are important questions for  appointing the next member of the Court and avoiding the mistakes of the past.

Brian Leiter: Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature
Michael Ramsey

Now published in the Hastings Law Journal, Brian Leiter: Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature.  (Via Leiter Reports)

I posted on this article -- actually the 2015 Mathew O. Tobriner Memorial Lecture at Hastings Law School -- earlier here.  But its publication is an excuse to quote the provocative introduction: 

I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice among the legally viable options based on the moral and political values of the Justices, and not simply on the basis of legally binding standards. The latter claim is, in part, a jurisprudential thesis about what constitutes “legally binding standards.” I shall defend the first claim by reference to the most plausible account of the nature of law—the legal positivist theory developed by H.L.A. Hart and Joseph Raz.

Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role. Thus, it should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure, there is always media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This antidemocratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent.

I agree with pretty much everything in the first paragraph.   And the Court's 2014-15 term I think reinforced this view in many people's minds, not just because it turned out that "established by a state" meant "established by the federal government" but also because it turned out that "prescribed in each State by the Legislature thereof" meant "prescribed in each State by a body which is not the Legislature thereof."  

But arguably there's an alternative to the second paragraph: to make what the Court does less dependent on the Justices' moral and political judgments and more dependent on legally binding standards.  That, I take it, is the originalist/textualist project.  And in my view, an important step in assessing the originalist/textualist project is establishing the proposition in the first paragraph.  That is, there is (perhaps) a choice between Justices proceeding by their moral and political intuitions and Justices proceeding by the text and original meaning.  But there isn't (much of) an alternative.  It's one or the other.  Once we see it that way, then we can decide which is best.

To be clear, I think there are some things to be said for the Supreme Court as a Super-Legislature (or rather, I would say, as the third branch of a three-branch legislature, whose consent is required for all legislation).  I am most interested in seeing the choice express in those terms.


Seth Barrett Tillman on Ex Parte Merryman
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Ex Parte Merryman:  Myth, History, and Scholarship (Military Law Review, forthcoming 2016) on SSRN.  Here is the abstract:      

Ex parte Merryman is iconic. It is, arguably, the first major American case testing the scope of lawful military authority during war time. Not only during a war, but during a civil war. Not only were the civilian (judicial) authorities in conflict with the military authorities, but the Chief Justice of the United States clashed with the President — or, at least, that is the story as it is commonly told. It is an 1861 case, but the stakes were large and, sadly, the issues remain relevant if not eternal. 

However, the standard restatement of the facts and holding of Ex parte Merryman appearing in many (if not most) law review articles is wrong. Moreover, these mistakes are not unique to academic lawyers; a fair number of judges, historians, and academics in allied fields make the same or very similar mistakes. These repeated errors are somewhat surprising because Merryman is, if not a leading case, only one short step removed from the received case law canon. To put it another way, what is frequently written about Merryman is a series of myths. This Article seeks to disentangle Merryman’s many myths from reality.


Eric Ruben & Saul Cornell: Firearm Regionalism and Public Carry
Michael Ramsey

Eric M. Ruben (New York University - Brennan Center for Justice) and Saul A. Cornell (Fordham University) have posted Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context (Yale Law Journal Forum, Vol. 125, 2015, forthcoming) on SSRN.  Here is the abstract:      

In recent years, following the Supreme Court’s landmark originalist opinion in District of Columbia v. Heller, courts have been asked to strike down restrictions on the public carrying of handguns on the basis of the original understanding of the Second Amendment. One of the key sources used to justify this outcome is a family of opinions from the antebellum South asserting an expansive right to carry weapons in public. In this essay we explore whether that body of case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional conception of this right. We discuss how the South’s distinctive culture of slavery and honor influenced both public carry and regional jurisprudence, and how the case law originating from that culture cannot be extended to the rest of the country without explanation. We then draw on new post-Heller research to discuss an alternative American tradition — predominant outside the South — that was less enthusiastic about public carry and more accepting of public carry regulation. This analysis suggests that the view of the right to bear arms expressed in the nineteenth-century Southern opinions falls woefully short of reflecting a national consensus. Moreover, judges seeking historical guidance in public carry cases today should look to the alternative tradition that presumed the constitutional soundness of broad public carry restrictions



Amanda Tyler: Assessing the Role of History in the Federal Courts Canon
Michael Ramsey

Amanda L. Tyler (University of California, Berkeley - School of Law) has posted Assessing the Role of History in the Federal Courts Canon: A Word of Caution (Notre Dame Law Review, Vol. 90, No. 5, 2015) on SSRN.  Here is the abstract:      

One of the most pervasive and important debates in federal courts jurisprudence is over the role that history should play in interpreting Article III of the United States Constitution. To that end, federal courts jurisprudence is not altogether different from constitutional law jurisprudence more generally. But in the federal courts arena — more so than in the broader domain of constitutional law — originalism has always wielded tremendous influence over much of the judicial and scholarly thinking. It is for this reason that a distinct conversation about its role in the federal courts canon is appropriate.

There is little question that in the field of federal courts, historical study has a great deal to contribute to modern debates. Indeed, historical study holds enormous potential to illuminate the founding purpose behind constitutional provisions, to unearth contemporary meanings associated with terms of art that were included in the document, and to uncover important evidence relating to historical practices and context, which in turn can shed light on the background understandings and assumptions that underlie constitutional text. But sometimes — if not often — the historical record on important questions of federal courts jurisprudence is absent, incomplete, or more complex than jurists and scholars tend to acknowledge. In keeping with this idea, one should never forget that certain aspects of the Constitution — including Article III and the structural framework within which it is situated — represented major innovations in their time. At the Founding, the concept of federalism — and with it the idea of two sets of courts, state and federal — was entirely new. Moreover, the separation of powers framework was, at the least, a transformation of the British model, if not a dramatic departure from it. Against this backdrop, it would be curious indeed if the details of the Article III power were fully settled from the outset. More likely, as Madison recognized early on, there would need to be a “liquidat[ion]” of meaning over time.

Accordingly, I wish to offer a word of caution about making historical arguments in federal courts jurisprudence. Specifically, in undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. As historian Jack Rakove has observed, the Founding period documents are the product of collective decisionmaking “whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine compromises and agreements to disagree.” In other words, at least to some extent, we must treat the period as a work in progress.


Michael Uhlmann: Two Cheers for Originalism
Michael Ramsey

At the Claremont Institute website, Michael Uhlmann (Claremont Graduate University, Department of Politics and Policy): Two Cheers For Originalism (Claremont Review of Books, Vol. XV, No. 2, 2015), reviewing (favorably) Michael Stokes Paulsen and Luke Paulsen's The Constitution: An Introduction.

From the conclusion (after noting the Paulsens' sharp critiques of substantive due process):

On a practical level, it is fair to ask what the critique of substantive due process has achieved. The answer, I’m afraid, is precious little, as Obergefell shamelessly reminds us. For the better part of half a century, originalists have railed against liberal Lochnerism, while the progressive Zeitgeist has moved relentlessly on. Liberals talk about justice, the expanding universe of human rights, and the Constitution’s duty to keep pace with what Justice Oliver Wendell Holmes called the “felt necessities of the times.” Meanwhile, conservatives talk about the importance of respecting procedural proprieties. The point is well taken, but is it likely to attract hearts and minds?


There is much more to be said about all this, of course, and I would not expect that the critique of substantive due process will be abandoned altogether. But, as I say, it certainly needs rethinking. Arguments from process alone have shown themselves to be of little avail against the juggernaut of rights claims. Sooner or later, constitutional conservatives have to start talking once again about the origin and nature of rights. Perhaps Michael and Luke Paulsen can contribute to that conversation in the next edition of their wonderful introduction to the Constitution—and, let us hope, many future editions as well.

(Via Powerline).