01/09/2016

Keith Whittington on Harold Bruff on Executive Interpretations of the Constitution
Michael Ramsey

At Law & Liberty, Keith Whittington: Making the Bricks of the Modern Presidency from Constitutional Straw (reviewing [mostly favorably] Harold Bruff, Untrodden Ground: How Presidents Interpret the Constitution [Univ. of Chicago Press 2015]).  From the main part of the review:  

Untrodden Ground builds on that earlier book but takes a broader perspective on presidential engagement with constitutional interpretation. While Bruff’s previous book was ultimately concerned with building a case against Bush administration lawyers such as John Yoo, this book is less concerned with calling a particular administration to task or advancing a particular position within current political controversies. Bruff does not hide his own constitutional proclivities (he notes early on that he believes his analysis “should persuade the reader that three recently fashionable approaches to constitutional law are flawed,” namely key commitments of the conservative legal movement in originalism, the unitary executive, and expansive executive power in the realm of national security), but the bulk of the book is concerned with historical description rather than theoretical analysis. Where he previously focused on a handful of modern presidents, this book has a grand historical sweep, with extended treatments of twenty-five presidents stretching from George Washington to Barack Obama. Although he perhaps does not quite give the nineteenth-century presidents their due, he does give them significant attention. And in these pages, the emphasis is on the presidents, not their legal advisors.  Legal argumentation recedes into the background, and presidential action takes center stage.

And in conclusion:

Presidents have persistent reasons to want to engage in constitutional debate and assert their own gloss on the Constitution, and their views on disputed constitutional questions have often been influential both in setting the terms of the debate and in resolving controversies.  The justices of the U.S. Supreme Court once famously declared that they are “supreme in the exposition of the law of the Constitution,” but neither the constitutional text nor constitutional history gives ready support to that claim.  The Constitution has sometimes effectively meant whatever the Supreme Court says it does, but the president and Congress have also been important players in saying what the Constitution means.  And what they say often sticks.  For those whose understanding of the Constitution itself and of how our constitutional system works has been shaped primarily by the Court and by commentators on the Court, Bruff’s new book will be a valuable corrective.

And here is the book description from the University of Chicago Press: 

When Thomas Jefferson struck a deal for the Louisiana Purchase in 1803, he knew he was adding a new national power to those specified in the Constitution, but he also believed his actions were in the nation’s best interest. His successors would follow his example, setting their own constitutional precedents. Tracing the evolution and expansion of the president’s formal power, Untrodden Ground reveals the president to be the nation’s most important law interpreter and examines how our commanders-in-chief have shaped the law through their responses to important issues of their time.
           
Reviewing the processes taken by all forty-four presidents to form new legal precedents and the constitutional conventions that have developed as a result, Harold H. Bruff shows that the president is both more and less powerful than many suppose. He explores how presidents have been guided by both their predecessors’ and their own interpretations of constitutional text, as well as how they implement policies in ways that statutes do not clearly authorize or forbid. But while executive power has expanded far beyond its original conception, Bruff argues that the modern presidency is appropriately limited by the national political process—their actions are legitimized by the assent of Congress and the American people or rejected through debilitating public outcry, judicial invalidation, reactive legislation, or impeachment. Synthesizing over two hundred years of presidential activity and conflict, this timely book casts new light on executive behavior and the American constitutional system.

I reviewed the book at the manuscript stage and I agree with Professor Whittington's assessment: although Professor Bruff is not an originalist, the book is mostly descriptive and not overburdened with contentious argument; thus it's an excellent reference for originalists and nonoriginalists alike.

I can't help commenting on the book description's claim re Jefferson:  despite what Jefferson thought, the argument that the Constitution did not permit the Louisiana purchase is extremely week.  The Purchase was done by treaty, and the Constitution's text has no substantial limits on the scope of the treaty power apart from the requirements that it not infringe other provisions of the Constitution and that it involve matters of international concern.  Obviously the Purchase did not raise problems on either count.  As I discuss in this article, Jefferson had previously developed an extraordinarily narrow and implausible view of the treaty power in the debates over the Jay Treaty.  (Readers will recall that I've made the point before, but it's something of a pet peeve).

 

01/08/2016

Charles C.W. Cooke on the Second Amendment
Michael Ramsey

At NRO, Charles C. W. Cooke: Even Obama Understands the Second Amendment (sharply criticizing this article by Austin Sarat).  He writes:

... [B]oth legally and politically, Obama is proceeding far more sensibly than is Sarat, whose stated view of the Second Amendment is utterly farcical. How farcical? Consider: In order to argue with a straight face that the right to keep and bear arms is inextricably linked with “service in an organized and sanctioned militia,” you would have to believe the following unbelievable things: 1) that the Founders’ intent in codifying the Second Amendment was to protect the right of individuals to join an organization over which the federal government has constitutionally granted plenary power; 2) that unlike every other provision in the Bill of Rights — and every other constitutional measure that is wrapped in the “right of the people” formulation — the Second Amendment denotes something other than an individual right that can be asserted against the state; and 3) that every major judicial figure of the era was mistaken as to its meaning — among them, Joseph Story, William Rawle, St. George Tucker, Timothy Farrar, and Tench Coxe, all of whom explained the Second Amendment perfectly clearly — whereas a few judges and politicians in the 20th century have been bang on in their comprehension.

Plus some key quotes from this hard-hitting post by Nicholas Johnson.

01/07/2016

Cruz is Eligible, Obviously (UPDATED)
Andrew Hyman

With the presidential eligibility of Senator Ted Cruz coming into question a great deal in recent days, it seems like a timely thing to blog about.  ABC News is reporting:

The Constitution's phrase, “natural born citizen,” isn't used elsewhere in the document or otherwise explained. It suggests to some people that only people born in the United States qualify as natural born, though many scholars reject that reading.

Count me among those many scholars.  The term “natural born citizen” very definitely does not require birth in the United States, and this should be extremely obvious.  Lord Coke wrote in 1608:

[I]f any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions.

And William Blackstone wrote in 1765:

[B]y several more modern statutes ... all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

These excerpts from Coke and Blackstone are consistent with the actual words “natural born citizen.”  Virtually no one disputes that Cruz is a "born citizen," and the only issue here is what "natural" means.  The English lexicographer Samuel Johnson wrote in 1756 that the word "natural" means "native," and the word "native" in turn means either an "inhabitant" or an "offspring."  So a natural born citizen is someone who was born a citizen by virtue of being an inhabitant of the United States, or (like Cruz) by virtue of being an offspring, just as Coke and Blackstone said.  I don't know if Ted Cruz is the best candidate, but certainly he is a natural born citizen, in my opinion.

There is a legitimate question, though, about whether a federal statute can completely control what a "natural born citizen" means, and to that the answer must be "no."  If a person was not a citizen at birth, then I don't think Congress can retroactively make him such.  Nor can Congress make someone a "natural born citizen" if he is born overseas without at least one parent who is a U.S. citizen.  But Congress has not done any of that with respect to Cruz, so I do not see any problem with considering him to be a natural born citizen.

 

MICHAEL RAMSEY ADDS:  My prior views are here and here.  I agree with Andrew's conclusion, though I don't think it's quite as obvious as he does.  I hope to have more to say later.   UPDATE:  At Volokh Conspiracy, Jonathan Adler and Randy Barnett also find Senator Cruz to be eligible on generally textualist/originalist grounds.  Professor Adler relies principally on this short article by Paul Clement and Neal Katyal, which gives the conventional account but which I regard as somewhat underdeveloped.  Professor Barnett has a interesting different approach.  Derek Muller has some further thoughts here.

Eric Segall: The Constitution Means What Judges Say it Means
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted The Constitution Means What Judges Say it Means (Harvard Law Review Forum, forthcoming) on SSRN.  Here is the abstract:

Just a few days before the Harvard Law Review published Professor Strauss' Foreward: "Does the Constitution Mean What it Says," where he argued that text and history do not account for the Supreme Court's constitutional decisions, Judge Richard Posner gave a talk in Chicago where he surprised many by saying that he doesn't care what the text of the Constitution says or what people living in the 18th century thought about today's problems. Judge Posner's remarks were a response to a book talk by Professor Randy Barnett who was defending his own "constructive zone originalism." Posner explicitly said that he agreed with Strauss' views that the best descriptive account of the Court's decisions is that they represent constitutional common law.

Although Strauss downplayed the role of text and history in constitutional decision-making in his Harvard Foreward, he also said that it is "never" appropriate to say that text can be ignored. This essay argues that Strauss is incorrect on that point, that Posner's pragmatic constitutionalism is descriptively accurate and normatively appealing, and that both Strauss' and Posner's views better capture constitutional law than Professor Barnett's faux originalism.

Via Larry Solum at Legal Theory blog, who comments:

I believe that Professor Segall's reference to "constructive zone originalism" should be understood as referring to what I have termed the "construction zone" which is a function of two ideas.  The first idea is the fact of constitutional underdeterminacy--the claim made by some originalists (and rejected by others) that the communicative content of the constitutional text underdetermines the legal content of constitutional doctrine and the decision of at least some constitutional cases.  The second idea is the interpretation-construction distinction--the claim by some originalists (and rejected by others) that there is a basic conceptual difference between "interpretation" (the activity of discovering the communicative content of the constitutional text) and construction (the activity of deciding the legal effect to be given to the text.  Thus, a "construction zone" arises when the text is underdeterminate and hence something other than direct translation of communicative content into legal effect is required in order to shape constitutional doctrine or decide a constitutional case.

01/06/2016

Who Are the True Heirs of the Reconstruction Republicans?
Mike Rappaport

In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . .  what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Graber’s argument, which has also been made in the literature, is not persuasive.  In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.

Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue. 

One problem with this argument is that the Freedmen’s Bureau Act was passed before the 14th Amendment provision imposing equality on the states was enacted and would not in any case, as federal legislation, have been subject to the Amendment’s equality requirements. Thus, the connections between the Act and the Amendment are relatively weak. But even assuming that the Act does reflect the Congress’s view of the 14th Amendment, the modern Republicans can easily defend the constitutionality of the Freedmen’s Bureau Act.

Under the view of justices such as Scalia and Roberts, one can pass laws that provide benefits to individuals of one race if that law remedies previous violations of those individual’s rights. The Freedmen’s Bureau Act did exactly that, providing benefits to people who had been slaves and had suffered significant harms to their human capital and ability to integrate into society. These laws were exactly the type of laws that Justices Scalia and Roberts defend.

The Freedmen’s Bureau Act stands in contrast to modern affirmative action, which does not identify a class of individuals based on behavior. Instead, it selects a group based on race and then confers benefits on that group. Thus, under modern affirmative action, well-off blacks will usually receive benefits but poor whites may not.

Graber’s criticism of the modern Republicans thus turns out to be mistaken. The similarities that he sees between the modern Republicans and the Southern Democrats are apparent, not real. I don’t think it makes sense to attempt to compare modern attitudes with those at the time of the 14th Amendment. But if one were to force a comparison between modern politics and those of Reconstruction, one could more easily argue that it is the modern Democrats who resemble the Southern Democrats.

The Southern Democrats favored race-based legislation, focusing on asserted group characteristics rather than those of individuals. Affirmative action largely has this character. I am not suggesting that affirmative action is the moral equivalent of the heinous policies advocated by the Southern Democrats. But if one is going to make a historical comparison, the fact that the Southern and modern Democrats both make race-based argument is quite significant.

Mark Graber (and Gerard Magliocca) on the Roberts Court and the Reconstruction Amendments
Michael Ramsey

At Balkinization, Mark Graber: The Copperhead Court?  From the introduction:

One remarkable feature of contemporary constitutionalism is the extent to which the foundations of Roberts Court and conservative constitutionalism lie in the post-bellum Democratic opposition to the Second Freedmen’s Bureau Bill and other exercises of congressional power under the Thirteenth Amendment.  Over and over again, Chief Justice John Roberts and other conservatives almost quote verbatim statements that Democrats made in the Thirty-Ninth Congress.  The Roberts Court does not share the post-bellum Democratic commitment to white supremacy.  Finding other differences between the constitutional commitments of former copperheads and doughfaces and prominent contemporary conservatives is quite difficult. 

And in conclusion:

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified.  Apparently with respect to the Thirteenth Amendment, what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Gerard Magliocca adds

To build on Mark's post, I want to point out that there are significant obstacles for lawyers who are inclined to interpret Reconstruction broadly (or just correctly), let alone for those who aren't.

First, there are no detailed notes on the discussions of the Joint Committee on Reconstruction, which was created 150 years ago this month. While Madison's Notes on the Constitutional Convention are flawed (for example, they were not published until long after the fact and were revised substantially by him after 1789), at least we have some sort of record of what was said in Philadelphia.  For the Joint Committee, by contrast, we have only a journal with bare-bones minutes.  Imagine how much constitutional debate would have been enriched if we knew how John Bingham, Thaddeus Stevens, and the others on what amounted to the Second Constitutional Convention said behind closed doors.

Second, there is no Federalist Papers for Reconstruction.  Bingham and Stevens never had the time (or probably the motivation) to write a series of detailed essays defending and explaining their work.  Courts and lawyers, though, often need this sort of explication to understand the context of the text that they are required to apply.

Third, there is no equivalent of Farrand's Records on the Reconstruction Amendments.  Good luck trying to find a single source that nicely organizes the debates of the Thirty-Ninth Congress, the ratification debates in the states, or the public statements and private letters of those Founders.

And further:

As a follow-up to my prior post, I was pleased to learn that Kurt Lash is putting together a collection of Reconstruction materials for the University of Chicago Press.  That is exciting news, and I look forward to seeing that book.

01/05/2016

Elizabeth Price Foley on Terminating the Iran Deal
Michael Ramsey

At NRO, Marco Rubio repeats his determination to terminate the nuclear deal with Iran: 

... [A]s president I will scrap this fundamentally flawed deal. Instead, I will reimpose the sanctions that President Obama waives and will impose crushing new measures targeting all of Iran’s illicit behavior. Rather than cutting deals with a regime with American blood on its hands, I will pressure Iran on all fronts across the Middle East. I will increase support to our allies in the region that are on the frontline of Iran’s nefarious activities.

Via Elizabeth Price Foley at Instapundit, who adds:

But as Bruce Ackerman and David Golove recently argued in The Atlantic liberals/progressives (ironically) assert that repudiation by a Republican President would violate Article II, section three’s command that the President “take care that laws be faithfully executed.”

This argument is specious, as [the Corker-Cardin bill passed prior to the deal] was not an expression of approval of the Iran deal, but instead a decision by Congress not to approve of the Iran deal as a treaty (as it should, constitutionally, have been handled). Since Congress has never “approved” of the Iran deal by majority vote, a future President that chooses to repudiate the deal could hardly be characterized as failing to “faithfully execute” a law enacted by Congress.

I agree -- most importantly, because the Iran deal is a nonbinding political commitment (as the State Department recently confirmed) and therefore (obviously) isn't part of the supreme law of the land even if Congress approved it.  (Ackerman and Golove wrote their article before the administration made it clear that the agreement was nonbinding).  

But on further reflection I think the Ackerman/Golove argument is misconceived in a more fundamental way.  Even if the agreement were binding, and even if Congress had authorized the President to enter into it, that still would not make it part of domestic law.  When Congress approves a prospective agreement in advance, it authorizes but does not require the President to enter into it.  Assuming Congress' action is constitutional, that makes the President's action in entering into the agreement constitutional.  But that does not make the agreement part of supreme law.  The only thing that is part of supreme law is Congress' statute giving the President power to enter into the agreement.  Nothing in Congress' authorization prevents the President (or a future President) from changing course and repudiating the agreement.  Repudiating the agreement would violate international law (assuming the agreement is binding), but it would not violate the authorizing statute, which does not require the agreement in the first place and says nothing about whether an agreement must be kept in place.

Justice Scalia on the Constitution and Religion
Michael Ramsey

Justice Scalia is in the news for comments at a Catholic High School in Metairie, Louisiana.  From the AP report:

Supreme Court Justice Antonin Scalia said Saturday the idea of religious neutrality is not grounded in the country's constitutional traditions and that God has been good to the U.S. exactly because Americans honor him. ...

He told the audience at Archbishop Rummel High School that there is "no place" in the country's constitutional traditions for the idea that the state must be neutral between religion and its absence.

"To tell you the truth there is no place for that in our constitutional tradition. Where did that come from?" he said. "To be sure, you can't favor one denomination over another but can't favor religion over non-religion?"

From the New Orleans Times-Picayune:

The Constitution's First Amendment protects the free practice of religion and forbids the government from playing favorites among the various sects, Scalia said, but that doesn't mean the government can't favor religion over nonreligion.

That was never the case historically, he said. It didn't become the law of the land until the 60s, Scalia said, when he said activist judges attempted to resolve the question of government support of religion by imposing their own abstract rule rather than simply observing common practice.

If people want strict prohibition against government endorsement of religion, let them vote on it, he said. "Don't cram it down the throats of an American people that has always honored God on the pretext that the Constitution requires it."

...

Scalia has long been a vocal advocate for a conservative reading of the First Amendment's clause on religion. In Scalia's view, the courts should interpret it based on the text itself, which doesn't expressly prohibit government support for religion, and common practice.

At the time the Constitution was written, religion was ubiquitous. Scalia noted that Thomas Jefferson, who first invoked the idea of a "wall of separation between church and state," also penned Virginia's religious freedom law, founded a university with dedicated religious space and, in writing the Declaration of Independence, regularly invoked God.

Such deference for a higher power has been consistent ever since, Scalia said.

The American people have clearly demonstrated a tolerance for government support of religion by enacting laws that exempt church property from taxation, he said. Congress even has clergymen on the payroll.

Given the history and subsequent common practice, Scalia called it "absurd" to interpret the First Amendment in such a way that banishes any government expression of support for religion.

(Via How Appealing).

Roger Kimball comments here: Why I Like Antonin Scalia (Part 1 of 678).

 

RELATED:  Recall that last month Judge Richard Posner and Eric Segall argued:  

On the basis of [Justice Scalia's] Establishment Clause opinions and his jurisprudence generally, we doubt that he would vote to invalidate the posting of a sign on the White House lawn stating: “We are a CHRISTIAN country and if you don’t like it, GET OVER IT.”

In response I wrote:

I'm not sure that's right.  As they quote Scalia later, “the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion.”  But the sign in the Posner/Segall hypothetical favors one religion over another, not religion over non-religion.  Scalia might consider that to be a difference of constitutional magnitude.

Scalia's recent comments seem to bear out my view of the matter.

01/04/2016

Marco Rubio on a Constitutional Convention of the States
Michael Ramsey

In the Washington Post, David Weigel reports

“One of the things I’m going to do on my first day is office is I will put the prestige and power of the presidency behind a constitutional convention of the states," Rubio said as he campaigned in Iowa. "You know why? Because that is the only way that we are ever going to get term limits on members of Congress or the judiciary and that is the only way we are ever going to get a balanced-budget amendment.”

Those interested in the topic might want to look at these articles (here and here) by Mike Rappaport on the constitutional aspects of a constitutional convention.  In particular, is it constitutional to call a convention limited to specific proposed amendments (or specified topics)?  From the abstract of the former article:

This article revisits the classic question of whether the Constitution allows limited conventions. The Constitution provides two methods for proposing constitutional amendments: the congressional proposal method and the convention method. Under the convention method, when two thirds of the state legislatures apply for a convention, the Congress is required to call for a “Convention for proposing Amendments.” An issue much debated over the years has been whether the state legislatures can apply for a limited convention – either a convention limited to proposing an amendment on a specific subject or, even more restrictively, a convention limited to deciding whether to propose a specifically worded amendment. A long line of leading constitutional scholars, such as Bruce Ackerman, Alexander Bickel, Charles Black, Walter Dellinger, Gerald Gunther, and Michael Paulsen, have argued that the Constitution does not authorize limited conventions.

In this article, I argue that the Constitution’s original meaning allows for both types of limited conventions. In making this argument, I supply the first rigorous account of how the original meaning of the constitutional text permits such limited conventions. In particular, I show, based on evidence from contemporary dictionaries, from other parts of the Constitution, from conventions existing at the time, and from other evidence of word usage, that the original meaning of the Constitution’s phrase a “Convention for proposing Amendments” includes both limited and unlimited conventions. I also show that the Constitution’s authorization of state legislatures to apply for a “Convention for proposing Amendments” allows them to apply for limited conventions. Finally, the article critiques the leading theories arguing for the contrary view, focusing on the work of Charles Black and Walter Dellinger.

(Via Josh Blackman).

01/03/2016

2016 Originalism Boot Camp at Georgetown
Michael Ramsey

From Larry Solum at Legal Theory Blog:

The Center for the Constitution at Georgetown Law will host the Originalism Boot Camp from May 23-27 of 2016.  This is a program for current law students and recent graduates.  Here are some the highlights:

  • Up to twenty accepted applicants will receive a $3,000 honorarium for their participation in the Summer Boot Camp. To receive the honorarium, participants must attend all five days of the seminar.  The Georgetown Center for the Constitution will cover travel costs and provide housing for non-resident participants. Travel will be arranged with the assistance of Georgetown Law’s travel agent.
  • Faculty includes: Randy E. Barnett, Lawrence Solum, William Baude, Laura Donohue, Phillip Hamburger, Sai Prakash, and Michael Rappaport.
  • Students will meet with Justice Antonin Scalia and Justice Clarence Thomas at the Supreme Court.  Also lunch discussions with Judge Diane Sykes of the U.S. Seventh Circuit Court of Appeals and with Attorney General Ed Meese.  Panel discussion with Supreme Court litigators.
  • Comprehensive introduction to originalist constitutional theory and practice.

Please submit your résumé, transcript, and a brief (250 word) statement of interest by March 15, 2016. Applications will be accepted on a rolling basis, with priority for honoraria given to early applicants, and may be submitted to Alexa Gervasi at alg90@law.georgetown.edu. The statement of interest should explain how you would be benefited by participation in the Boot Camp.

You can download the program brochure at this link:

https://www.law.georgetown.edu/academics/centers-institutes/constitution/upload/FinalBrochure.pdf

Hope to see you there!