Edward Foley: Constitutional Preservation and the Judicial Review of Partisan Gerrymanders
Michael Ramsey

Edward B. Foley (Ohio State University - Moritz College of Law) has posted Constitutional Preservation and the Judicial Review of Partisan Gerrymanders on SSRN. Here is the abstract:

This essay makes three contributions to the debate over whether the Constitution contains a judicially enforceable constraint on gerrymanders. First, it directly tackles the Chief Justice’s fear of the judiciary appearing partisan, observing that the same fear would exist if the Constitution explicitly banned gerrymanders and explaining why an implicit ban should be no less judicially enforceable than an explicit ban under Marbury v. Madison. Second, invoking the idea of “institutional forbearance” in the important new book How Democracies Die, the essay shows how the Elections Clause can be construed to protect congressional districting from abuses of legislative discretion committed by state legislatures. Together, these two points lead to a third: the most essential duty of the Court, according to originalist theories of constitutional interpretation, is to preserve the Constitution against changes that would undermine its provisions or its overall core commitment to the creation of a federal republic for the United States; thus, insofar as virulent gerrymanders increasingly threaten the measure of popular sovereignty that elections to the federal House of Representatives were designed to achieve, the preservationist function of originalism requires judicial invalidation of those gerrymanders.

At Legal Theory Blog, Larry Solum has a long paragraph of comments, beginning: 

It may be that originalism does function to preserve a republic, but it is not the case that contemporary originalist theory would accept that argument that legal doctrines that serve the functions that originalism serves are consistent with and/or required by originalism. ...

Agreed.  I would say that originalism permits/requires invalidation of gerrymanders to the extent the Constitution's original meaning permits/requires invalidation of gerrymanders, and if the article is claiming something more, it is misunderstanding originalism.




Legal Theory Lexicon: Strict Construction and Judicial Activism
Michael Ramsey

At Legal Theory Lexicon, Larry Solum's Legal Theory Lexicon: Strict Construction and Judicial Activism.  From the introduction:

This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that sometimes seem to have very little content as used in popular discourse.

A case can be made for a revised and conceptually more coherent version of each of these concepts.  Whether constitutional theorists will be able to agree on consistent and clear definitions remains to be seen.

On strict construction, after giving various possible definitions:

It simply isn't clear what "strict construction" means. Once you actually give content to the idea of strict construction, then the label isn't particularly descriptive and better names can be given to the view that "strict construction" could name. For this reason, most serious constitutional theorists avoid using the phrase "strict construction." If you think you have a good reason to continue using this phrase, you might give serious consideration to offering a very careful definition when you first introduce the term.

I want to add an important qualification to this discussion.  It is entirely possible that "strict construction" once had a coherent meaning that has been "lost" with the passage of time.  If so, then "strict construction" may yet have an important role to play as a concept in constitutional history, and possibly, via that history, in contemporary theories of constitutional interpretation.

Similarly, on judicial activism, after considering some possible definitions:

One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.

And near the conclusion:

Can we rescue these concepts?  Here is a proposal for coherent and clear definitions:

  • Strict Construction as Judicial Constraint by the Text and Judicial Restraint If Language is Unclear.  We might define strict construction as the conjunction of two distinct ideas.  The first element would be constraint by text.  Thus, a construction would not be strict if it was inconsistent with the linguistic meaning of the text of a statute, constitution, or other legal text.  The second element would be constraint in cases where the text was not clear, e.g., where the text was vague, open-textured, or otherwise lacked a clear and discernible meaning.
  • Judicial Activism as Judicial Invalidation of Action by Legislative or Executive Officials. This definition has the consequence that "judicial activisim" would, for many constitutional theorists, be a value neutral term.  Many constitutional theories favor judicial activism in the stipulated sense: for example, originalists favor judicial activism when the orignal meaning of the constitutional text requires invalidation of a statute enacted by Congress.

The "lexicon" entries, although ostensibly aimed at law students, are incredible helpful to academic writers and commentators as well.  When they concern something I know something about, I almost always agree, or mostly agree (as I do here).

I might offer slightly different prospective definitions, though.  To me, a "strict construction" is a narrow, limited reading of the text.  In terms of the Constitution, that leads to a narrow view of its grants of power (a strict construction of the vesting of "executive Power" might think it gave the President only the power to execute law and not additional powers such as foreign affairs power) and it leads to a narrow view of constitutional rights (a strict construction of the freedom of speech might prohibit only content-based regulation of political speech, or perhaps only prior restraints).  I recall that Justice Scalia sometimes used the phrase (negatively) in contrast to a "fair construction," which he favored.

"Judicial activism" I think might also carry the connotation of judges invalidating executive or legislative action without clear basis in the text.  It would seem odd to me to label as judicial activism a judicial ruling that someone who is 34 years old cannot be President.  That definition might risk sliding into defining judicial activism as "things I think are wrong," as Professor Solum suggests.  But I think many people think there are correct rulings which nonetheless lack clear basis in the text.


New Book: "Habeas Corpus in Wartime" by Amanda Tyler
Michael Ramsey

Recently published, by Amanda L. Tyler (UC Berkeley): Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford Univ. Press 2017).  Here is the book description from Amazon:

Habeas Corpus in Wartime unearths and presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition. The book begins by tracing the origins of the habeas privilege in English law, giving special attention to the English Habeas Corpus Act of 1679, which limited the scope of executive detention and used the machinery of the English courts to enforce its terms. It also explores the circumstances that led Parliament to invent the concept of suspension as a tool for setting aside the protections of the Habeas Corpus Act in wartime. Turning to the United States, the book highlights how the English suspension framework greatly influenced the development of early American habeas law before and after the American Revolution and during the Founding period, when the United States Constitution enshrined a habeas privilege in its Suspension Clause. The book then chronicles the story of the habeas privilege and suspension over the course of American history, giving special attention to the Civil War period. The final chapters explore how the challenges posed by modern warfare during the twentieth and twenty-first centuries have placed great strain on the previously well-settled understanding of the role of the habeas privilege and suspension in American constitutional law, particularly during World War II when the United States government detained tens of thousands of Japanese American citizens and later during the War on Terror. Throughout, the book draws upon a wealth of original and heretofore untapped historical resources to shed light on the purpose and role of the Suspension Clause in the United States Constitution, revealing all along that many of the questions that arise today regarding the scope of executive power to arrest and detain in wartime are not new ones.

With blurbs from, among others, Jack Goldsmith (Harvard), Michael Lobban (LSE History), Jack Rakove (Stanford History& Political Science) and David Shapiro (Harvard).

The first 6 chapters cover the English law background, the inclusion of habeas corpus in the U.S. Constitution's suspension clause, and habeas corpus in early post ratification history.  Very interesting and useful to originalist-oriented scholarship.


Kevin Cole: Privileges, Justifications, and the Positive Law Model of the Fourth Amendment
Michael Ramsey

Kevin Cole (University of San Diego School of Law) has posted Privileges, Justifications, and the Positive Law Model of the Fourth Amendment on SSRN.  Here is the abstract:

Justice Gorsuch has recently shown considerable interest in what William Baude and James Stern call "The Positive Law Model of the Fourth Amendment." The model gives central effect to subconstitutional law in determining whether particular police activity constitutes a search or a seizure requiring Fourth Amendment justification. The model promises a solution to "third-party doctrine," which has long been criticized but seems increasingly problematic in a digital age. This brief comment explores how justifications in criminal law and privileges in tort law impact Baude and Stern's model. It concludes that justifications and privileges cause some difficulty for the model, particularly in the area of seizures, but that further elaboration of the model may address these difficulties.

The Baude & Stern paper is here: The Positive Law Model of the Fourth Amendment (129 Harvard L. Rev. 1821 (2016).  More commentary from Professor Baude, relating to Justice Gorsuch's comments in Byrd v. United States, here: Yes, the Positive Law Model of the Fourth Amendment is Originalist.  Orin Kerr discussed Justice Gorsuch's comments here:  Three Reactions to the Oral Argument in Byrd v. United States (scroll down to point (3)).


James Cleith Phillips et al.: Investigating the Original Meaning of “Officers of the United States” with the Corpus of Founding-Era American English
Michael Ramsey

James Cleith Phillips (The Becket Fund for Religious Liberty; Ph.D candidate, University of California, Berkeley - Department of Jurisprudence & Social Policy), Jacob Crump (BYU, JD candidate '18) and Benjamin Lee (linguistic analyst, Department of Linguistics & English Language, BYU) have posted Investigating the Original Meaning of “Officers of the United States” with the Corpus of Founding-Era American English on SSRN.  Here is the abstract:

With the Supreme Court set to decide Lucia v. SEC this term, it has a chance to revisit the meaning of “officers of the United States.” Forty years of court precedent argue the term means one exercising significant government authority, though that precedent did not seek to determine the terms original meaning. Recent scholarship by Jenn Mascott contends that the term’s original meaning is much broader, encompassing anyone employed by the government who has a continuing duty. 

To find such, Professor Mascott performed, in part, “corpus linguistic-like” analysis on the papers of six founders, covering 1783-1789, a total of about 7.7 million words from 16,000 texts. By turning to the new beta version of the Corpus of Founding Era American English, we take this analysis one step further on several different dimensions. First, we survey a larger number of dictionaries to try and get a preliminary idea of the attested senses of “officer” at the founding. Next, we expand the time period of our corpus linguistic inquiry from 1760-1799. Third, across this time period we look not only at these six founders’ papers, but also documents from the Evans Early American Imprint Series, which contains texts from more ordinary Americans, a wider variety of types of texts, and on a wider variety of subjects than the founders’ writings. Additionally, we also look at legal documents from Hein Online’s collection. In all, these three different sources consist of about 150 million words from 120,000 texts. Finally, we expand our search beyond just “officer(s)” or “officer(s) of the United States” to include officer within 5 words of the words public or civil; other officer(s) of (the) (federal) government; officer(s) of (the) (federal) government; and variations on publicly employed. We sample approximately 150 instances from each of these four searches, balancing across all three sources of documents (Founders, Evans, and Hein).

We find the original meaning of “officers of the United States” is messy, but arguably closer to Professor Mascott’s views than the Supreme Court’s. In other words, a definition of "officer of the United States" that is a person exercising significant government authority appears too narrow. But a definition that was anyone working for the government would be too broad. We note the limitations to our methodology and thus our findings.

Here is a link to Jennifer Mascott's paper:  Who Are "Officers of the United States"? (Stanford Law Review, forthcoming).



Jonathan Siegel: The Constitutional Case for Chevron Deference
Michael Ramsey

Jonathan R. Siegel (George Washington University Law School) has posted The Constitutional Case for Chevron Deference (Vanderbilt Law Review, forthcoming) on SSRN.  Here is the abstract:

Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Article shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set by the possible meanings of the statute.


More from Seth Barrett Tillman on Emoluments
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has three new SSRN posts on the emoluments issue.

(1) Presidential Electors and the Brief of the Legal Historians in CREW v. Trump:

The first filed of the three Foreign Emoluments Clause cases was CREW v. Trump. Five academics (the “Legal Historians”) filed an amicus brief (the “Legal Historians Brief”) in support of the plaintiffs. The Legal Historians Brief stated: “As holders of an office ‘of trust’ under the United States, [presidential] electors [like the President] would also be subject to the [Foreign Emoluments] [C]lause.” 

The Legal Historians claim regarding presidential electors is perplexing. They cite no authority for this position. More troubling is that there is a substantial body of authority taking the position that presidential electors are state positions, not federal positions, and so entirely beyond the scope of the Foreign Emoluments Clause and its Office... under the United States-language. The Legal Historians did not discuss this line of authority. 

There is a more recent line of academic authority, initially put forward by Vasan Kesavan, that notes that the Constitution’s Religious Test Clause distinguishes offices under the United States from public trusts under the United States. Kesavan argues that the position of presidential elector, although a federal position, is a public trust under the United States, as opposed to an office under the United States. Again, this alternative view was not discussed by the Legal Historians. 

Failing to discuss academic authority and nonbinding federal case law is not best practice. But it is certainly within the norms of the legal profession, particularly in a brief where space is scarce. Failing to discuss contrary Supreme Court authority is another matter entirely. In 1867, in United States v. Hartwell, the Supreme Court held: “The term [‘office’] embraces the ideas of tenure, duration, emolument, and duties.” Presidential electors fail — each and every element — of this four-factor test.

(2) The Foreign Emoluments Clause, the Teachings of the American Civil War, and a Response to Mike Stern: The Aftermath of the Hamilton Documents Imbroglio:

Four score and six years after the founding of the nation, during the Civil War, Congress passed a statute. The statute mandated that certain officeholders take a loyalty oath — this was a second oath, in addition to the ordinary oath prescribed by Congress pursuant to Article VI. The statute extended to “every person” holding “any office of honor or profit under the government of the United States.” The oath was passed during the Thirty-Seventh Congress. That Congress terminated on March 3, 1863. During that Congress, Senator James Asheton Bayard, Jr. (Delaware-Democrat) failed (or, perhaps, refused) to take the newly prescribed loyalty oath. Bayard was reelected in 1863. 

When the first regular session of the new Congress met, Senator Sumner (Massachusetts-Republican) put forward a resolution requiring all senators to take the newly prescribed loyalty oath. Bayard refused to do so on a point of principle. Bayard contested the constitutionality of the statute (at least, as applied to members of Congress) and also its construction: i.e., Did the statute’s language reach members of Congress? Bayard made a variety of arguments. Bayard opened a copy of American State Papers, which was by then some three decades old, and on January 19, 1864, on the floor of the Senate, he proceeded to state...

(3) The Foreign Emoluments Clause—Where the Bodies are Buried: 'Idiosyncratic' Legal Positions (59 South Texas Law Review __ (forthcoming 2018):

In 2017, three sets of plaintiffs in three different federal district courts brought civil actions against the President of the United States: each action alleged that the President has and continues to violate the Constitution’s Foreign Emoluments Clause. The Foreign Emoluments Clause provides: 

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

There are only a handful of federal cases discussing the Foreign Emoluments Clause. Not one of these cases has any extensive discussion of the scope of the Foreign Emoluments Clause or the scope of the clause’s Office of Profit or Trust under the United States language (“Office-language” or “Office . . . under the United States-language”). Not one of these cases, expressly or impliedly, affirms or denies that the clause applies to the President. Likewise, there is no decision by any court of record (of which I am aware) which affirms or denies that the clause’s Office-language, or closely similar language in any other constitutional provision, encompasses the presidency. If the courts were to reach the merits, the issue at hand—i.e., the scope of the clause’s Office-language—is entirely one of first impression. Still, there has been some discussion of the clause and its Office-language, primarily, but not exclusively, amongst academics. Such discussion has appeared in the Department of Justice’s Office of Legal Counsel memoranda, academic articles, popular magazines focusing on news, politics, and law, and in amicus briefs. 

Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views—many of which contradict one another—many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly in their broad methodological approach.


Jennings v. Rodriguez Cuts Back on the Constitutional Doubt Canon
Michael Ramsey

Speaking of the constitutional doubt canon (see here from last week) ... Tuesday's opinion from the Supreme Court in Jennings v. Rodriguez took a somewhat narrow view of it.  The lower court had found a statutory right to periodic bail hearings for aliens being detained pending removal; the conclusion was that, absent such a right, the statute authorizing detention would "raise serious constitutional concerns."  Wrong, said Justice Alito, writing for himself, Roberts, Kennedy, Thomas and Gorsuch:

The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Clark v. Martinez, 543 U. S. 371, 385 (2005). In the absence of more than one plausible construction, the canon simply “‘has no application.’” Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001)).

The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III–A and III–B, we hold that, subject only to express exceptions, §§1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III–C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.

The Court sent the case back to the Ninth Circuit to decide whether the statute, lacking the right to bail hearings, is constitutional.  As discussed in the previous post, I'd rather get rid of the canon altogether, but a strict prerequisite of textual ambiguity is a useful step.  The alternative, as shown in the lower court opinion, is courts rewriting statutes to avoid constitutional doubt -- something well outside the judicial function.




Originalism, Minorities, and Women
Mike Rappaport

At the Originalism Conference recently, Christina Mulligan presented a well received paper on the objections to originalism from racial minorities and women and how such objections might be addressed.

It was an interesting paper and canvassed the whole range of objections, without asking whether or not they were well considered.  While it is annoying for originalists to find weak criticisms taken as seriously as strong ones, I nonetheless found the strategy useful.  If one is attempting to engage with people who believe a range of things, it will sometimes be better to give the best response rather than to tell them that their criticism is mistaken.

Some of the criticisms by minorities are important.  One significant criticism of the Constitution is that it was written by white men at a time when much of the country practiced slavery and women were treated as second class citizens.  John McGinnis and I devoted a chapter of our book, Originalism and the Good Constitution, to this issue.  We basically argued that the original Constitution was seriously defective and did not obligate black slaves, but that the defects of the Constitution were largely corrected by the Reconstruction Amendments.

One of the criticisms that Mulligan addresses derives from the claim that most originalists in the academy are white males.  Based on this claim, it might be thought that originalism is biased against women and minorities and that white male originalists are unconcerned with the interests of these groups.  I found this to be a disturbing criticism.  The white male originalists in the academy that I know are neither biased against women and minorities, nor unconcerned with their interests.  And the suggestion that they are is outrageous.

But what of the fact that most originalists in the academy are white males?  That is true, but the question is what it proves.  My sense is that people who are on the right in the academy tend to be white males.  Thus, to the extent that originalists are on the right, it is no surprise that they tend to be white males.

Yet, not all originalists are white males.  In fact, the person I regard as the leading originalist in the world today is a black man, Justice Clarence Thomas.  It is significant that among people who criticize originalism as anti-minority, so little is made of the fact that arguably the leading originalist is a black man.  If one made this point in the academy today, many people would scoff at the idea that Clarence Thomas is black.  Sure he is black, they would say, but he is not a genuine black man.  He has the views of a white man.  He is a conservative originalist.

But this response is revealing.  It suggests that whether a person is a racial minority is not the primary question.  The question instead is whether that person has progressive views.  That originalists do not tend to be progressive is an important fact, but it is different than the claim that originalists tend not to be minorities.

I tend not to focus on the racial identity or sex of scholars or judges.  But if one is concerned about such things, then it is striking fact about originalism that arguably the world’s leading originalist is a black man.  But it is seldom, if at all, mentioned.

Rebecca Roiphe & Bruce Green: Can the President Control the Department of Justice?
Michael Ramsey

Rebecca Roiphe (New York Law School) and Bruce A. Green (Fordham University School of Law) have posted Can the President Control the Department of Justice? (Alabama Law Review, forthcoming) on SSRN. Here is the abstract:

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.

First, I say it's "a historical perspective" not "an historical perspective."  Just as it's "a hippopotamus" not "an hippopotamus."(Sorry, just a pet peeve I can't resist).

Second, more seriously, this interesting paper raises an important question encountered here before.  It's familiar view that longstanding custom can relax a constitutional requirement, especially in the separation of powers area.  This is, of course, Justice Frankfurter's concurrence in the Steel Seizure case, among many others.  But this paper's argument is that longstanding practice can create a constitutional requirement where the Constitution's text doesn't impose one.

This issue came up in the context of Judge Garland's nomination to the Supreme Court.  One of the arguments then was that, even if the Constitution itself did not impose a duty on the Senate to consider the nomination, past practice imposed such an obligation.

I doubted this was true, however (even assuming there was such a past practice) [further thoughts here].  My view was that even if practice can relax constitutional obligations, it can't create them.  That's because the relevant political actors may be behaving the way they are out of convenience, not out of a sense of legal obligation.  In the Garland situation, even if the Senate had uniformly given nominees a hearing in the past, that did not suggest anyone felt a legal obligation to do so.  In contrast, where the political actors relax a constitutional obligation, they necessarily are taking the view that as legal matter the obligation should be relaxed.

One example I gave is the two-term limit for Presidents.  This was a custom established by George Washington and followed until Franklin Roosevelt.  It was probably a good idea.  But I think few people thought it was a legal obligation.  Roosevelt's standing for a third term did not violate a constitutional obligation.  And when people wanted to make it a constitutional obligation, they amended the Constitution.  (Another example is the Senate filibuster -- again, a longstanding practice but one we generally assume could be changed).

I could not think of any examples where the Supreme Court had found a longstanding practice to create (as opposed to relax) a constitutional obligation.  I'm still looking for examples, as it seems an important point.  (A reader suggested Chief Justice Roberts' commerce clause opinion in NFIB v. Sebelius, but that seems more an interpretation of textual limitation rather than a creation of a nontextual obligation.)

So my initial reaction on this paper is that the practice does not create an obligation.  Assuming that the Constitution's original meaning is that the Department of Justice is under the President, a practice of independence from the President doesn't create a new rule; it just creates a practice -- arguably a good one -- and the decision whether to depart from that practice is a political rather than a constitutional one (until it is incorporated into a constitutional amendment).