Originalism in Zivotofsky v. Kerry
Michael Ramsey

Today's opinion in Zivotofsky v. Kerry found unconstitutional Congress' requirement that U.S. citizens born in Jerusalem be able to have their passports reflect birth in Israel.  (Majority by Justice Kennedy; partial concurrence, partial dissent by Justice Thomas; dissent by Chief Justice Roberts; dissent by Justice Scalia, joined by Roberts and Alito).

Jack Goldsmith at Lawfare thinks the opinion is a significant victory for the executive branch. I'm not so sure; the majority opinion is written narrowly and tightly focused on the President's exclusive recognition power (wrongly, in my view).  

I'll have an invited comment at SCOTUSblog posted shortly.  My brief takeaway is that Justice Thomas' concurrence has the right approach: the President wins because Congress does not have power to establish "United States Policy with Respect to Jerusalem as the Capital of Israel," as the statute's title purports to do (see 116 Stat. 1365).  Deciding U.S. policy with respect to whether or not Jerusalem is part of Israel does not have anything to do with receiving ambassadors, but it is part of the President's diplomatic power.  That power isn't exclusive as to things over which Congress also has power, but here Congress lacks an enumerated power.  Thomas relies on extensive originalist materials in support to this framework (persuasively, in my view).

Justice Scalia's dissent is also originalist but in my view is far too lax in policing Congress' enumerated powers.  He argues that Congress can insist on "Israel" in the passport of a Jerusalem-born citizen because "[t]he birthplace specification promotes the document’s citizenship authenticating function by identifying the bearer, distinguishing people with similar names but different birthplaces from each other, helping authorities uncover identity fraud, and facilitating retrieval of the Government’s citizenship records."  But this is an imagined function; as the title of the provision makes clear, the point is to make a statement, not to facilitate recordkeeping.  And the provision allows but does not require inclusion of "Israel" (at the passport-holder's option), further underscoring that the provision's role is symbolic, not administrative.

The majority opinion by Justice Kennedy ranges over precedent, practice, recent history, and functional needs, but also devotes substantial attention to immediate post-ratification understandings (with a much appreciated cite to my article with Sai Prakash on executive foreign affairs power, albeit to the part Prakash mostly wrote).

At Opinio Juris, there are further comments on the case from Julian Ku, Peter Spiro (who thinks, perhaps optimistically, that the opinion is the end of Curtiss-Wright) and Deborah Pearlstein.

And Josh Blackman has extensive excerpts from the opinions and his commentary here.

Renee Lerner on the Civil Jury
Michael Ramsey

Renee Lettow Lerner (George Washington) has been guest-blogging at Volokh Conspiracy on her scholarship on the Seventh Amendment and the right to jury trials in civil cases.  Here are the posts:

The Uncivil Jury Part 1 -- American's Misplaced Sentiment about the Civil Jury

Mike Rappaport had these posts earlier on Professor Lerner's writing in this area: here, here, here, and here.
This is a very interesting field about which I know nothing.  I think this is an interesting suggesting, however (from Professor Lerner's fifth post linked above):
One possibility is to construe the Seventh Amendment, at least, not to require jury decisions in cases involving multiple parties, claims, and complicated facts and law. These types of cases were not given to ordinary lay juries “at common law.” In a future article, I’ll explain this interpretation in detail.
My guess is that our current view of when civil juries are required is not very well linked to the eighteenth-century idea of "Suits at common law," because I doubt we have a clear understanding of what that phrase meant.  So this sounds like an excellent project.
Meanwhile, here is an alternative view on the merits on the civil jury (although not an originalist one).


No Birthright Citizenship for American Samoans
Michael Ramsey

On Friday the D.C. Circuit decided Tuaua v. United States, concluding that people born in American Samoa are not U.S. citizens by birth, even though American Samoa is a U.S. territory and the Fourteenth Amendment says that all persons born in the United States are citizens.  I'm not entirely sure how the court got its result, but it is an interesting and somewhat originalist opinion by Judge Janice Rogers Brown.  (I joined an amicus brief in support of the plaintiffs).

At Just Security, Steve Vladeck thinks they should tried for en banc.


More from Randy Barnett and Greg Weiner on the Framers and Judicial Power
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has more on the judicial supremacy debate, with extensive quotations from the founding era.  His conclusion:

I do not believe that the Constitution means what the Supreme Court says it means (and for this reason I am skeptical of adhering to precedents that are contrary to the text of the Constitution) ...

But I do believe that, when the Supreme Court finds that a law is unconstitutional, under our system of government, that law is rendered null and void. It ceases to be binding on the citizenry and the executive branch would literally be acting lawlessly by continuing to enforce itJust as Congress may reenact a law that has been vetoed by the president, under the separation of powers, the Supreme Court may not enjoin Congress from either reenacting a previously invalidated law, or from enacting other laws in defiance of the Court’s reasoning, but a law that has been nullified is no longer the law of the land, and the executive may no longer enforce that law. End of story.

At Liberty Law Blog, Greg Weiner disagrees:  What Is Judicial Equality?  Responding to Professor Barnett's description of judicial equality:

Granted, all three branches get a say, but it matters whose word is last. Fair enough, Congress assents to the constitutionality of a law when it passes it; yes, the President does so when s/he signs it; but the Court, ruling last, can annul them both, and no one, on Barnett’s reading, can stand in its way. Sorry, but how is that not supremacy?

A truly co-equal branch would have no more right than the other two to pronounce on constitutional questions, which would have to mean its views would be open to challenge in turn. As near as I can tell, Barnett acknowledges no authority sanctioned to challenge the Court once it renders a decision on a constitutional dispute, save the Court itself changing its mind, the elected branches changing the decision that triggered the dispute or the people changing the Constitution.

The difference here may distill to one of perspective. The legal view of the Constitution seeks conclusive decisions at discrete moments. The political view—political in the noble sense—understands the regime to be subject to interpretation by all three branches, and thus the deliberate judgment of the people, over time.

He also has an earlier post here: Politicizing the Constitution Is Necessary and Proper.  From the introduction:

Americans search for precision and finality in a constitutional system that is instead built for ongoing conversation and conflict. The question is not which branch is “expert” enough to have the final say at any particular moment, but rather the balance between the branches over time.

Constitutional conflict should [not upset us]. It might be more problematic were it limited to discrete moments that led to institutional crisis or paralysis, but Publius’ model holds it to be an organic and ongoing process. The Constitution does not render authoritative, final meanings captured as snapshots in time. These meanings instead resemble time-lapse photographs articulated by interaction between the executive, legislature, and judiciary.

Anthony Bellia & Bradford Clark: The Original Source of the Cause of Action in Federal Courts
Michael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) and  Bradford R. Clark (George Washington University Law School) have posted The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute (Virginia Law Review, Vol. 101, No. 609, 2015)  on SSRN. Here is the abstract:      

Judges and scholars have long debated the legitimacy and contours of federal common law causes of action — actions created neither by Congress nor by state law. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts, including with respect to whether federal courts may recognize an implied right of action for the violation of a constitutional or statutory provision that does not specifically create one. Recently, the power of federal courts to recognize federal common law causes of action has emerged as a key question under the 1789 Alien Tort Statute (“ATS”), a purely jurisdictional statute that the Supreme Court recently has attempted to apply in accordance with its original meaning. In interpreting the ATS to allow federal courts to adjudicate some federal common law causes of action, the Supreme Court has embraced a common — but mistaken — assumption about how early federal courts operated: namely, that early federal courts found causes of action in the ambient unwritten law of the era.

This Article explains why this widespread assumption is false. Early federal courts did not rely on ambient common law to supply causes of action in civil suits within their jurisdiction. Rather, early Congresses enacted specific statutes that prescribed the civil causes of action available in federal court. In particular, the Process Acts of 1789 and 1792 defined the causes of action that federal courts could adjudicate in actions at law, as well as in cases in equity and admiralty and maritime jurisdiction. In enacting these laws, Congress did not leave federal courts free to derive causes of action from the common law in the abstract. Rather, Congress specifically adopted several preexisting, well-developed bodies of law for use in federal court — most notably, requiring federal courts to borrow state causes of action in common law cases. While the Process Acts of 1789 and 1792 remained in force, federal courts adjudicated only those causes of action authorized by Congress. This history has important implications for questions of federal judicial power today. The example of the ATS illustrates how a proper understanding of the original source of the cause of action in federal court can both inform and transform debates over the origins and nature of federal judicial power.


Damon Root on Judicial Supremacy
Michael Ramsey

At Reason, Damon Root: Can the President Lawfully Ignore a Supreme Court Decision?  Conservative legal pundits take aim at “judicial supremacy.”  From the introduction:

What if President Hillary Clinton decides that Citizens United is so wrong, so contrary to the Constitution, that she is under no obligation to acquiesce in it? President Hillary Clinton then orders the Justice Department to ignore Citizens United and to enforce the very sort of campaign finance restrictions that the Court ostensibly wiped from the books in 2010. Would President Hillary Clinton possess the lawful power to act in this fashion and bypass a decision of the U.S. Supreme Court?

According to a pair of prominent conservative legal commentators, the answer to that last question is yes.

And from the conclusion:

The judiciary, [St. George] Tucker concluded [in 1803], "is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority, the darts of oppression, and the shafts of faction and violence."

Tucker's view is consistent with Madison's conception of the judiciary as an "impenetrable bulwark" and Hamilton's description of the judiciary [in Federalist 78] as "an intermediate body between the people and the legislature." The Paulsen-Whelan approach, by contrast, would turn Tucker, Madison, and Hamilton on their heads and transform the judiciary into no shield at all.

Ilya Somin on Originalism and Liberty
Michael Ramsey

At Liberty Law Forum, Ilya Somin: How Constitutional Originalism Promotes Liberty.  From the introduction:

What approach to constitutional interpretation best protects liberty? My task in this essay is to answer that modest question. Ultimately, there is no definitive answer that applies to all times and all places. But under the circumstances of the United States for the foreseeable future, originalism is likely to be the best bet. Both the structural and individual rights provisions of the Constitution generally protect liberty more when interpreted from an originalist standpoint than by applying any of originalism’s plausible competitors.


The Quid Pro Quo in Federalist 78
Andrew Hyman

Legal blogs have been buzzing this week regarding judicial supremacy, and you can consult Mike Ramsey's posts for the very latest links, especially to the Volokh Conspiracy, Bench Memos, and Huffington Post.

All sides apparently consider Federalist 78 by Alexander Hamilton to be among the leading authorities.  I generally agree with what Ed Whelan has said at Bench Memos in opposition to judicial supremacy, but Mike Ramsey and Ilya Somin properly quoted Hamilton’s statement that “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority”.  No one says Hamilton was wrong about that — Hamilton's statement is a far cry from an endorsement of judicial supremacy.  I would like to elaborate briefly on this aspect of Federalist 78.

Hamilton explicitly disavowed judicial supremacy in Federalist 78, denying that judicial review “would imply a superiority of the judiciary to the legislative power”.  He did say that the judiciary  would be able to void unconstitutional statutes, but Hamilton attached five crucial conditions:

1)            “[A]ll judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR….”

2)            “If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred….” [N.B. Irreconcilable variance is
a high bar analogous to undoubted conflict.]

3)            “[T]he Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”  [N.B. The judges themselves are agents, and thus they are bound to obey the intentions of the people embodied in the Constitution.]

4)            “[N]othing would be consulted but the Constitution and the laws….”

5)            “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them….”

If the other branches believe that the judiciary is adhering to these five conditions, or at least believe that the judiciary is in good faith trying to adhere to these conditions, then I agree with Professor Somin that the other branches generally should “obey judicial decisions invalidating their laws or policies, and must follow the rules laid down in those decisions in similar future cases.”  However, if these five conditions are not met, then Federalist 78 makes very clear that the legislative and executive branches are not without recourse, because the judiciary “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 .… it can never attack with success either of the other two [branches]….”

And , finally, I’ll say a few words about Thomas Jefferson and the Louisiana Purchase, to which Mike Ramsey and Ilya Somin have recently referred.  They take the position, and also attribute to Jefferson the position, that there are “rare cases where violations of the Constitution are justified, if that is the only way to prevent a great evil….”  Actually, Jefferson did not take that position. Jefferson believed that the Treaty Power was limited to accomplishing other powers enumerated in the Constitution, and the latter powers in his view did not include acquiring foreign territory.  So, he went ahead and did it anyway, and urged Congress to ratify and pay for it, and then “throw themselves on their country for doing for them unauthorized what we know they would have done for themselves if they had been in a situation to do it” (Jefferson’s words).  President Jefferson planned on obtaining a retroactive constitutional amendment, but most people in Congress believed that they did have constitutional power to make the Louisiana Purchase, and so Jefferson acquiesced to them.  My main point here is that Jefferson only purported to violate the Constitution in the belief that he could obtain retroactive constitutional authorization. He never would have presumed to violate the Constitution without “know[ing]” that he would receive retroactive authorization, even if he thought he was preventing some great evil.

Likewise, judges have no legitimate power to strike down statutes that are entirely consistent with the Constitution, on the very weak grounds that the judges know more about evil than the stupid populace; in such circumstances, the judge ought to resign rather than subvert the law and dictate his own morality to an entire nation.  That is how to turn a democracy into a judicial dictatorship.  A judge’s honest but mistaken belief that something is evil may very well itself be evil (and, as Jefferson said, "judges are as honest as other men and not more so").  Allowing judges to strike down statutes on such grounds would obviously violate several of the conditions described in Federalist 78, and would justify the legislative and executive branches in defying the judiciary, in the proud tradition of Americans who have condemned royalty for "abolishing our most valuable Laws."

Heidi Hurd: Why Would Anyone Care About Original Intent?
Michael Ramsey

Heidi Hurd (University of Illinois College of Law) has posted Why Would Anyone Care About Original Intent? on SSRN. Here is the abstract:

Not all originalists are intentionalists. But all intentionalists are originalists. And certainly many originalists are intentionalists, for the impulses that lead scholars to embrace originalism in constitutional and statutory interpretation also often incline them to give it an intentionalist turn. When painted with a broad brush, originalism requires a judge to resolve interpretive ambiguities and uncertainties related to a constitutional or statutory text by reaching to facts about the text’s origins. An intentionalist would insist that the facts relevant to constitutional or statutory interpretation concern the original intentions of those who authored the provisions. Indeed, most intentionalists would insist that a theory of interpretation that appeals to authorial intentions best honours the reasons for defending originalism. While they must admit that originalists might appeal, instead, to authorial values, or to facts about the original audience to an enactment, they commonly insist that intentionalist interpretation best protects against the sort of “judicial legislation” that threatens to make the law sufficiently unpredictable as to chill liberty, unsettle reliance interests, and offend against the like treatment of like cases. Thus, while originalism and intentionalism are distinct, their marriage is so common as to make an inquiry into the one a useful means of gaining the measure of the other.

It is my project in this paper to examine the ability of intentionalism to make good on its promises to originalism. I shall first examine the claim that intentionalism is required by our best theory of legal authority, so that to be governed by law is to be committed to honoring the intentions of its authors. I shall then take up whether intentionalism can be defended both conceptually and normatively, arguing that the most thoughtful theory of intentionalist interpretation provided to date (an account defended in recent years by Larry Alexander and Emily Sherwin) reveals insurmountable difficulties that would seemingly beset any alternative intentionalist theory, as well. I shall close by suggesting that our allegiance to the rule of law does not depend on the use of an intentionalist theory of interpretation; that an alternative understanding of the authority of law both honors the importance of law and liberates us from the (hopeless) quest for original intent.


More from Ed Whelan on Judicial Supremacy
Michael Ramsey

At NRO Bench Memos, Ed Whelan responds to Randy BarnettAgainst Euphemistic Defenses of Judicial Supremacy.  The main point:

Quoting extensively from one of his law-review articles, Barnett presents what he sees as originalist evidence in support of the proposition that the founding generation understood the “judicial Power” to include the power “to nullify or invalidate a law”—in other words, to wipe it out of existence such that there is nothing left of the law for the president or Congress to enforce. But Barnett’s article pervasively conflates the power of judicial review with what he calls the power of “judicial nullification.” As I’ve made clear, the power of judicial review enables courts to decline to apply laws they deem to be unconstitutional. …

Nothing in this narrow concept of judicial review means that a court, in declining to apply a law on the view that the law is unconstitutional, thereby wipes the law out of existence. The Founding Era evidence that Barnett offers is entirely compatible with the narrow concept of judicial review. So, yes, federal judges, in the course of deciding cases, “will declare [a law] to be void” (or, as Marshall puts it in Marbury, “entirely void”), “could declare an unconstitutional law void,” will “consider [unconstitutional laws] as null & void,” and so on. But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional.

He also has a further response to my initial post.