03/27/2015

Richard Re on Justice Alito and Constitutional Oath in American Railroads
Michael Ramsey

At Re's Judicata, Richard Re: Justice Alito on the Constitutional Oath in American Railroads. Here is an excerpt: 

Last week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.

03/26/2015

Michael Dorf on Libertarianism and the US Constitution
Michael Ramsey

At Dorf on Law, Michael Dorf: How Biased Towards Libertarianism is the US Constitution? Here is an excerpt:

My latest Verdict column [Ed.: titled Economic Liberty Never Really Died] discusses  a recent Harvard Law Review essay by Suzanna Sherry, in which she reviews Richard Epstein’s book, The Classical Liberal Constitution. Sherry says (correctly) that Epstein defends a view of economic rights as no less fundamental than “personal” rights such as contraception, abortion, and marriage. She also says that liberal progressives have failed to respond adequately to the argument by offering a full-throated defense of personal liberty that excludes Lochnerian economic liberty. I argue that this charge is unfair. I point to constitutional theories by the likes of John Hart Ely and Jim Fleming that draw just this distinction. I might have pointed to any number of others. Indeed, it is practically a cliche that liberal constitutional theory of the last four-plus decades has been obsessed with distinguishing Roe from Lochner. 

The main point of my column is not, however, to defend liberal constitutional scholars against Professor Sherry. My chief aim is to examine an unspoken premise that she and Epstein share: namely, that implementing economic libertarianism in the name of the Constitution would require a substantial change to our existing constitutional regime. I challenge this assumption in two ways. I note that: (1) while the SCOTUS has not accepted the invitation of the economic libertarians to revive Lochner as a matter of substantive due process, the Court has in fact been very friendly to the deregulatory agenda of economic conservatives while using other doctrines; and (2) the main contribution of the American Constitution to economic libertarianism comes not from judicial enforcement of the Constitution or courts more generally, but from the hard-wired features of the U.S. Constitution—its multiple “veto players”—that tend to stymie efforts to adopt progressive policies.

03/25/2015

Ted Cruz and Originalism as (Part of) Our Law
Michael Ramsey

At Opinio Juris, Peter Spiro comments

[The natural born Citizen clause] is a terrific case study for demonstrating constitutional evolutions outside the courts. No court will ever touch the question at the same time that particular cases show us where the law is.

One recent addition to the mix: [Neal] Katyal and Paul Clement have this piece on the Harvard Law Review Forum arguing that Ted Cruz qualifies as “natural born”. If Katyal and Clement say he is natural born, then he is natural born, merits aside. Bipartisan pronouncements from legal policy elites become a source of the law.

But in my view the Katyal and Clement essay says more about originalism than it does about evolving constitutionalism.

Katyal and Clement are not originalists; they are advocates (former Acting Solicitor General under President Obama and former Solicitor General under Bush 43).  Yet their argument is almost entirely originalist.  They begin by saying:

While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings.

They then rely on:

(1) British statutes from the eighteenth century (adding "The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,” since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’s Commentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.");

(2) Immediate post-ratification practice in the 1790 Naturalization Act (adding "The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress.").

(3) The Framers' purpose, based on the likely intent of John Jay, who apparently first suggested the clause; and ...

... that's it, except for a passing reference to the Senate's unanimous resolution that John McCain was eligible despite birth in the Panama Canal zone.

In sum, Katyal and Clement make an almost purely originalist argument.  To be sure, it's not novel to do so -- many people have made originalist arguments about the clause (including me).  What's noteworthy, though, is that Katyal and Clement are acting not as constitutional theorists or originalist bloggers but as advocates trying to persuade the greatest number of people of Senator Cruz's eligibility.  As Professor Spiro says, they are speaking as members of the "legal policy elite," putting a stamp of constitutional approval on the candidacy.  And in that capacity, their judgment is that originalist arguments are persuasive and sufficient.

Now this does not necessarily show that originalism is our law (as Will Baude has argued), but it does strongly suggest that originalism is at least a part of our law -- enough that leading members of the "legal policy elite" think it makes their case on this subject.

John McGinnis on Constitutional Construction
Michael Ramsey

At Liberty Law Blog, John O. McGinnis, The Judiciary Should Interpret, Not Construct, the Constitution.  Here is the introduction: 

My recent paper, The Duty of Clarity, has substantial implications for an important current controversy in originalist theory—whether the judiciary should engage in construction as opposed to interpretation of constitutional provisions. The judicial duty of clarity suggests that the judiciary cannot engage in construction during the course of judicial review.  Construction takes place only when a provision is unclear, and the duty of clarity permits the judiciary to invalidate a provision only when it clearly conflicts with the Constitution.

The controversy over the role of construction and interpretation arises from recent developments in originalist theory. Some theorists, often called the New Originalists, like Randy Barnett, Larry Solum, Jack Balkin, and Keith Whittington, have sought to recast originalism by making a strong distinction between language in the Constitution that is clear and language that is not. For clear language, interpretation governs, and the process of interpretation seeks to discover the semantic meaning of a provision at the time it was enacted. Unclear language, in contrast, creates a so-called Construction Zone, when conventional legal meaning runs out. Within the Construction Zone, the constitutional decision maker must necessarily appeal to materials extraneous to the semantic meaning of the Constitution. As a result, according to many New Originalists, the Construction Zone allows the judiciary to invalidate legislation even when the semantic meaning of the Constitution does not require invalidation.

And in conclusion: 

In short, if a central thesis of the New Originalists—that interpretation runs out when a provision is irreducibly ambiguous or vague—is accurate, only the legislature rather than the judiciary can “construct” the constitutional order when the meaning of the Constitution is unclear. The judiciary’s role in the course of judicial review is confined to interpreting the Constitution. That is an important role, but one circumscribed by law.

This seems to me to be an important criticism of New Originalism, well and concisely put.

03/24/2015

Joel Alicea on Originalism, Barnett and Balkin
Michael Ramsey

At National Affairs, Joel Alicea has a long essay titled Originalism and the Rule of the Dead.  Here is the introduction: 

The conservative legal movement is in the midst of a great debate about its future. For decades, originalism -- the theory that the original meaning of the Constitution is binding on today's interpreters -- has been the default theory of legal conservatism, and so it remains today. But the struggle within legal conservatism is about the very meaning of originalism, as novel theories have challenged longstanding beliefs about originalism's core philosophical premises.

Since its inception, originalism has insisted on obedience to the past in order to vindicate the sovereignty of the living. It has demanded that today's majorities adhere to the original meaning of the Constitution, recognizing that this is essential if those majorities are to govern themselves. In this, originalism has stood against the all-too-understandable impulse to break free of past constraints and empower the present. It has spurned calls for a "living Constitution," the meaning of which changes to reflect the values of society or of a chosen elite.

The new trend in originalism abandons this heritage. It self-consciously rejects the authority of the past and the duties rightfully imposed by our forebears, elevating instead the will of the present and the ideologies of its theorists. Having internalized the basic assumptions of living constitutionalism, it is but one step away from becoming what has always been considered originalism's intellectual adversary.

If originalism is to avoid collapsing into that which it has always opposed, legal conservatives must begin by remembering why they believe in originalism. They must look to originalism's past in order to preserve its future.

And from the conclusion:

Barnett and Balkin look to the history of the Constitution, but originalism is about more than history. They stress the importance of the constitutional text, but originalism is about more than words. By embracing the dead-hand argument, Barnett and Balkin replace originalism's core philosophical assumptions with those of living constitutionalism. To the extent that legal conservatives adopt Barnett and Balkin's views, they adopt premises antithetical to their own.

Legal conservatives would do better to hold fast to the principles that have served them well, to safeguard that which it has been their special duty to defend. They would do better to insist on the rule of the dead.

03/23/2015

Sonja West: The 'Press,' Then & Now
Michael Ramsey

Sonja West (University of Georgia School of Law) has posted The 'Press,' Then & Now on SSRN. Here is the abstract:

Does the First Amendment’s protection of freedom of “the press” simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view. 

It starts by expanding the scope of the relevant historical evidence. Discussions about the original meaning of the “press” typically focus only on the ratifying generation’s explicit rhetoric. This approach, however, fails to consider valuable evidence about colonial and early-American lived experiences with the printing press. To members of the framing generation, this new evidence reveals, the press was a tool of limited access, available only to certain speakers, controlled by gatekeeper printers, and used primarily for matters of public concern. Early Americans may have spoken of press freedom as open and inclusive, but printing, as they actually knew it, was not. Rather, it played a specific societal role. 

Historical evidence is only of true value, moreover, if it is used to address the right question. This article thus shifts the pertinent question from “what” members of the founding generation were protecting — technology or trade — to “why” they sought to protect it. History reveals that they saw the Press Clause as having two functions — an individual, self-expressive function and a structural, government-monitoring function. At the time, a singular notion of the “press” embodied all of these concepts (a technology as well as an expressive and a structural function), leaving no need to distinguish among them. Today, however, that conceptual overlap no longer exists. For a variety of reasons — including advances in communication technologies, expansion of access to these technologies, growing complexity of government, and development of journalistic standards — press functions and press technology are now unique concepts.

Today’s advanced mass communication technologies, buoyed by our modern robust speech jurisprudence, provide individuals with extensive expressive channels. Modern journalistic practices, meanwhile, fill a more dedicated and refined watchdog role. To be sure, some overlap still exists. Broad use of mass communication technology can lead to government scrutiny, and journalism has expressive qualities. But the primary uses of the two have diverged significantly since the late-1700s. An interpretation of the Press Clause that is faithful to the original goals of press freedom should reflect these modern realities.

Green and Bingham
Andrew Hyman

Professor Chris Green kindly posted a response to my blog post about Congress's alleged power to define what "privileges" and "immunities" are covered by the Fourteenth Amendment.  My main point was that Congress generally has no definitional power under the Privileges or Immunities Clause with regard to either enumerated or unenumerated rights; Congress simply has no role with regard to either.  Perhaps Professor Green believes Congress has such definitional power with respect to unenumerated rights, but if so then I respectfully disagree.

Professor Green is entirely correct that it's very important to ask whether the Privileges or Immunities Clause involves unenumerated rights, and I am happy to engage on that point, and to argue that it does not.  It seems to me that none of the five examples that Professor Green has given include the key phrase “privileges [and/or] immunities of citizens of the United States.”  The closest of those five examples (by far) is Green's lead example, where Congressman John Bingham said something very similar. That remark by Bingham in 1867 (which incidentally was not widely published like President Andrew Johnson's veto message was in 1866) referred not merely to rights related to prevalent rates of taxation, but rather referred explicitly to the Comity Clause right of equal treatment which is emphatically an enumerated rather than unenumerated right.

No one disputes that various statesmen in 1866 believed United States citizenship implied various unenumerated natural rights, but whether they believed any of those unenumerated rights were judicially enforceable against Congress is quite another question, as is whether they believed those unenumerated rights were “privileges [and/or] immunities of citizens of the United States.”  The phrase "privileges and immunities" typically referred in the Comity Clause not to all natural rights possessed by native citizens but only those rights that native citizens could actually vindicate against their own state; that is one important reason why political leaders of that era could sometimes distinguish “privileges [and/or] immunities of citizens of the United States” from the broader set of rights belonging to U.S. citizens.

UPDATE (3/23): Just to be crystal clear, I am absolutely not drawing any sharp distinction between rights on the one hand versus "privileges and immunities" on the other hand.  All I am saying is that the latter are a subset of the former.  This has been established Comity Clause doctrine for well over a century.

03/22/2015

An Additional Response to Katyal & Clement
Michael Ramsey

Mario Apuzzo also has a response to Katyal & Clement on natural born citizens.  (Thanks to Charles Kerchner for the pointer).

I take his point to be principally that English common law, not English statutory law, should inform the constitutional meaning (similar to this post).  Although it's a minor point, this additional comment is worth noting:

Katyal and Clement argue that John Jay [who apparently first suggested the "natural born" language] had children born out of the United States while he was on diplomatic assignment and that he would not have disqualified his own children from being natural born citizens.  This is a really baseless point since Jay's children would have been born out of the United States to parents who were serving the national defense of the United States and therefore reputed born in the United States.

I agree (although I think that should read "serving in a diplomatic capacity" not "serving the national defense").  The Jay argument is unhelpful and it's unfortunate that Katyal and Clement repeat it (which they do, text at fn. 14).  There's no doubt that under English common law the children of English diplomats born abroad were natural born subjects despite the general common law rule that "natural born" meant only birth within the realm (Blackstone, vol. 1, p. 361, referring to the "children of the king's embassadors born abroad"). So whatever Jay may of thought about the eligibility children of diplomats does not help us decide between looking to English common law and looking to all of English law including statutes.

Perhaps Will Baude is Too Timid
Andrew Hyman

In a recent op-ed for the New York Times, Will Baude (law professor and until recently Volokh Conspiracy blogger) suggested a contingency plan for President Obama in case the judiciary finds Obamacare -- or parts of it -- to be unlawful.  Taking a page from Lincoln's first inaugural address, Baude speculated that Obama could enforce such judicial decisions only with respect to the particular parties.
 
Professor Baude's suggestion has run into some skepticism, including from Noah Feldman, Nick Bagley, Josh Blackman, James Taranto, and Andy Grewal (Baude provides hyperlinks here).
 
But I think Professor Baude may be too timid in his Lincolnesque approach, and perhaps ought to try something a bit more Hamiltonian.  If the president is honestly convinced that SCOTUS is violating the Constitution by willfully defying statutory language that is plainly legitimate, then why should the president even enforce such a SCOTUS decision as to the particular parties in the case? In Federalist 78, Hamilton wrote of SCOTUS that, "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."  Accordingly, Obama could instruct the U.S. Marshals Service to sit on its hands instead of effectuating the judgment for one of the parties.  That's called checks and balances, though not of the usual sort.  Of course, there would be risks for Obama in such an unusual approach, including possible impeachment, not to mention the precedent for Bush 45, or for President Fiorina.  But the same is true of the Lincolnesque approach that Baude has suggested.
 
Instead of providing a link directly to Federalist 78 for the Hamilton quote, here is a link to (apparently) the only opinion by a Supreme Court Justice that has ever had the nerve to repeat it. Hint: that judge is currently the subject of a play at Arena Stage in Washington D.C.
 
UPDATE (3/23): Professor Baude has emailed to say that he does not think Hamilton was right, citing a law review article that Baude wrote several years ago.
 
MIKE RAMSEY ADDS:  Here are a couple of posts supporting Professor Baude's position, from Stephen Carter (at Bloomberg View) and Kevin Walsh (Mirror of Justice).

Helen Knowles:The Least Dangerous Branch and Popular Constitutionalism
Michael Ramsey

Helen Knowles (Skidmore College, Government) has posted Remember, it is the Supreme Court that is Expounding: The Least Dangerous Branch and Popular Constitutionalism on SSRN. Here is the abstract:

This article undertakes critical analysis of the similarities between “popular constitutionalism” and The Least Dangerous Branch. It does so by focusing not on the book’s treatment of the counter-majoritarian problem but, rather, on the passive virtues discussion. In so doing it suggests that Alexander Bickel – at least, the Alexander Bickel who wrote The Least Dangerous Branch – was far more accepting of the US Supreme Court’s power of judicial review than the scholarly “obsession” (as it is sometimes referred to) with the counter-majoritarian problem might lead us to believe.