08/17/2016

Andrew Coan: Living Constitutional Theory
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted Living Constitutional Theory on SSRN.  Here is the abstract:    

Recent work has questioned the dichotomy between living constitutionalism and originalism on the ground that our understanding of what is “original” is itself a changing phenomenon. It is not just understandings of constitutional history, however, that evolve over time. It is also understandings of the role that history ought to play in constitutional interpretation and adjudication. Indeed, the two evolutionary processes are intertwined in complex ways. In this Essay, I sketch a brief, stylized narrative explaining how this dynamic has played out in U.S. constitutional theory over the past five decades. The upshot is that constitutional theory, no less than constitutional doctrine or constitutional history, lives. On some level, everybody understands this. But at any given time, it is far from the forefront of consciousness for most constitutional theorists. This Essay is a reminder and a call for greater self-consciousness.

(Via Larry Solum at Legal Theory Blog, who says "Interesting and recommended.")

08/16/2016

Justice Thomas on the Tiers of Scrutiny
Mike Rappaport

In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’”  Interestingly, Toobin never argues that Thomas’s claim is mistaken.  Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true.  But in my view, Thomas’s claim is both true and damning.

In his dissent in the Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt, Justice Thomas offers two basic criticisms of the Court’s tiers of scrutiny jurisprudence: the tiers are not in the Constitution and that they are followed only inconsistently by the Court.

1. The Supreme Court generally employs three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. Thomas first argues that these tiers are not in the Constitution. He claims that the Court has made them up, which Thomas focusing his criticism on the famous case of Carolene Products.  Thomas argues that the Court, in a footnote that was “pure dicta,” attempted to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race.

Thomas is certainly correct here.  There is little in the original meaning of the Constitution to justify special scrutiny to certain rights, such as the First Amendment or Equal Protection.  Those rights certainly deserve to be enforced, but it is not clear why they are “preferred rights.”

And Thomas goes on to show how the Court would later enforce certain unenumerated rights, such as the right to privacy, with equal vigor, even though the Carolene Products did not justify it.  Instead, liberal values supported these rights.

2. Thomas’s second point is that the tiers of scrutiny are not followed consistently. If the Court followed them consistently, then at least it would further the rule of law. But they don’t.   “Strict scrutiny is now applied in unequal, arbitrary manner.”

Thomas writes:

If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test.

Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review.

I wonder what Toobin would say about these criticisms if he addressed them rather than simply dismissing them for being critical of the Court.  If the Court’s behavior is problematic – and it is – then it is open to criticism and should be criticized.

Eric Segall on Justice Scalia
Michael Ramsey

At Dorf on Law, Eric Segall: Supreme Irony: GOP Talking Points and Scalia’s True Legacy.  From the introduction:

It is fair for Republicans to promise to appoint Justices who will vote for policies that further their interests. It is absurd, however, for Republicans to suggest, as they always do, that what that means is that their judges, and only their judges, will respect the text and history of the Constitution. Since both Donald Trump and the official GOP platform pay specific homage to Justice Scalia as the kind of Justice they would name, examining the late Justice’s actual voting record instead of fairy tales about his alleged text-and-history approach shows the falsity of the GOP talking points about our highest Court.

Justice Scalia did consistently vote against abortion and gay rights, often ranting that the Constitution is “dead, dead, dead” and arguing that judges shouldn’t make up rights that are not listed in the text of the Constitution. In a famous dissent in an important abortion case, Scalia said that “value judgments should be voted on [by the people] not dictated” by unelected judges. These cases, however, are aberrations. because Justice Scalia frequently made up rights and rules that aren’t mentioned anywhere in the Constitution and are often in direct conflict with the history of the Constitution.

Some examples:

For example, the Eleventh Amendment to the Constitution unambiguously provides that states cannot be sued without their consent by a “citizen of another state.” Justice Scalia enthusiastically accepted a line of cases twisting this text to invent a rule that states can’t be sued even by their own citizens. He endorsed this conclusion not just on stare decisis grounds but on the merits, and on the bizarre basis, one that might even embarrass a so-called “living constitutionalist,” that the Amendment’s clear text was more important for what it “reflected” than for what it “said.”

Justice Scalia also concocted a rule that even when Congress is acting within its power to regulate commerce among the states, or any other power expressly given it in the Constitution, Congress cannot require states to help implement otherwise valid federal law. This so-called “anti-commandeering” rule is nowhere in the Constitution and directly conflicts with clear statements in the Federalist Papers that the states that ratified the Constitution understood that Congress could use them to implement federal law. If we needed a draft in a hurry, the strange made-up nature of this rule could become apparent quite quickly.

Justice Scalia voted to strike down a key section of the Voting Rights Act in a decision in which Chief Justice Roberts said that, even when Congress acts pursuant to its authority under the Reconstruction Amendments, ratified in the wake of the demise of slavery and the Civil War, it cannot treat different states differently absent a very strong reason. This principle is nowhere in the text of the Constitution, and it is hard to imagine any rule being more inconsistent with the original meaning of the Civil War Amendments than Chief Justice Roberts’ completely fabricated “equal state sovereignty” rule, which the Court announced for the first time ever in 2013.

Plus some further examples.  Without conceding the validity of any of them, it does seem that these are points Justice Scalia's defenders need to consider.

08/15/2016

Is SCOTUS a Good Reason to Support Trump?
Mike Rappaport

Reason.com has a piece by Damon Root asking various libertarian and conservative legal experts what they think about the matter.  There are a range of answers.  Here is my response:

I certainly believe that the future of the Supreme Court is "a reason" to support Trump. There are no assurances, but I do believe it is likely that he will choose someone from the list he issued previously (or someone similar). Is it a strong enough reason to overcome the other reasons not to vote for him?

To me, it depends on one's perspective. If one is simply voting for the candidate whose views are closest to your own, then most libertarians will vote for Gary Johnson. Trump's Supreme Court appointments are unlikely to affect that.

But if you are (for some reason) choosing between Trump and Clinton, then Trump's likely appointments are important. Both Trump and Clinton are so flawed that any significant chance that one of them will do something good is pretty important. So I would say that if one is choosing between Trump and Clinton, then Trump's likely appointments are a strong reason for preferring him. Of course, that strong reason might be outweighed by other considerations, depending on your views of the two candidates.

Obviously, I am very tentative about the issue.   One's decision here depends on how one views voting; the likelihood that Trump makes a good appointment is uncertain; and much depends on how one evaluates Trump's other negatives.  But the key point is that "both Trump and Clinton are so flawed that any significant chance that one of them will do something good is pretty important."  This is a pretty damning statement, but I am hardly alone in believing this.

The other people who responded are split on these issue.  Many believe, like Jonathan Adler, that "Trump is beyond the pale."  Others see the Supreme Court as the main reason to support Trump, viewing the decision as Glenn Reynolds does, as between "certainly awful and possibly awful."  What a political year we are in!

Given how similar the basic political principles are of the experts, it is genuinely interesting that they are so split.

Randy Barnett & Josh Blackman: Restoring the Lost Confirmation
Michael Ramsey

Randy Barnett (Georgetown University Law Center) and Josh Blackman (Houston College of Law) have posted Restoring the Lost Confirmation (University of Chicago Law Review Online) on SSRN. Here is the abstract:      

There is a silver lining to the stormy cloud brewing over Justice Antonin Scalia’s crepe-covered seat. During his speech nominating Judge Merrick Garland to the Supreme Court, President Barack Obama faulted Democrats and Republicans for their prior positions on judges. “[T]here’s been politics involved in nominations in the past” on both sides, Obama observed. He is right. Over the past three decades, presidents and senators from either side of the aisle have ratcheted up the tension over Supreme Court nominees. And the linchpin of that conflict is what has become an utterly meaningless ritual: the confirmation hearing. But not for the reasons you may think.

The conventional wisdom is that, in their present form, judicial confirmation hearings serve no meaningful purpose. This is because nominees, who are rationally self-interested in being confirmed, refuse to answer any questions that could jeopardize their prospects. Instead — the theory goes — when asked a controversial question, the nominee filibusters and obfuscates. Candidates of both parties are trained through rigorous “murder boards” to provide answers that are designed to shed as little light as possible on how they would behave as judges.

However, the conventional wisdom is based upon an incomplete account of how the hearings have devolved. While we agree that the current dysfunctional state of the confirmation process stems from the failed appointment of Judge Robert Bork to the Supreme Court, there is a widespread misunderstanding of what exactly went wrong at the Bork hearing. We contend the types of questions asked by both Democratic and Republican senators — at that hearing and since — assume a “legal realist” emphasis on results rather than on legal reasoning. The focus has been on cases of the Court rather than on clauses of the Constitution. Each side is trying to get nominees to tip their hand on how they will decide cases that each side cares about. But there is a better way.

This Essay proceeds in three parts. First, we identify three distinct “moves” that allow nominees to skate away from questions that might reveal that they would reach the “wrong” results in future cases. Second, we demonstrate how a focus on the meaning of clauses of the Constitution, rather than the cases before the Supreme Court, can fundamentally transform how hearings are conducted. We harbor no illusions that members of the Senate Judiciary Committee all possess the sufficient knowledge to meaningfully engage in this line of questioning, beyond reading prepared questions from staffers. But we do not need a cadre of originalist senators. The beauty of our reform is that no rules need be changed; no bipartisan agreement need be reached; and even the Republicans on the Senate Judiciary Committee need not all be of the same mind. For this approach to restore the lost confirmation hearing, we need only a senator or two to focus their limited time on originalism.

08/14/2016

Daniel Francis: The Decline of the Dormant Commerce Clause
Michael Ramsey

Daniel Francis (JSD candidate, NYU School of Law) has posted The Decline of the Dormant Commerce Clause (Denver Law Review, Vol. 94, No. 2, forthcoming) on SSRN. Here is the abstract:   

A profound transformation has been worked in the law of the dormant Commerce Clause. Much contemporary scholarship and many modern decisions of the Supreme Court present the essential structure and content of the doctrine in the form that it held through the middle decades of the 20th century (hereafter the “Traditional Framework”). But in truth the Court has dramatically eroded the dormant Commerce Clause since the mid-1980s, leaving it today a slender remnant of the traditional model. This article tracks three dimensions of the doctrine’s precipitous decline. First, the Court has profoundly eroded the rule against discriminatory regulation, focusing almost exclusively on “intentional” protectionism. Second, the Court has virtually retired the practice of burden review, in which the balance between the commercial burden of a State measure and its social benefits is judicially scrutinized for reasonableness. Third, the Court has created and expanded exceptions to the reach of the doctrine with remarkable speed. The first and second of these dimensions accord closely with prescriptions offered by Donald Regan in a seminal 1986 article, but the third dimension marks a decisive step beyond even Regan’s prophetic vision. Today, the path ahead remains unclear. Justice Scalia was a powerful and influential critic of the dormant Commerce Clause, and much may turn on whether his successor continues his project of opposition to the doctrine. But whatever happens next, the Traditional Framework is now hopelessly out of date, and the dormant Commerce Clause is in remarkable decline.

I hope so.  Despite the best efforts of Brannon Denning, I agree with Justice Scalia -- the dormant commerce clause is not part of the Constitution's original meaning.  But in accordance with my emerging view of precedent, I would prefer that the Court read it narrowly rather than simply overrule it.

08/13/2016

Mark Pulliam on George Will on Judicial Restraint
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: George Will's Constitution (critiquing this essay by Will at National Affairs).  From the core of the argument:

[Will] avers in his National Affairs essay that “For many years and for several reasons, many of my fellow conservatives have unreflectively and imprudently celebrated ‘judicial restraint.’ For many years, I, too, was guilty of this.” Without providing examples, he implies that conservatives generally believe that “the things legislatures do are necessarily right because they reflect the will of the majority.” He now disavows that position and declares it “high time” that conservatives “rethink what they should believe about the role of courts in the American regime.”

This is a big statement. What does he offer his unreflective and imprudent fellow conservatives as an alternative? Unfortunately, not much besides some disappointingly vague generalizations. ...

The hard questions in constitutional law (frequently discussed on this site, for example here, here, and here) include these: What rights are protected by the Constitution, and how should courts discern those rights? What standard or standards of review should be used when reviewing claims that a challenged law violates constitutional rights? How should the state’s justifications for challenged laws be evaluated? Which party has the burden of proof in such challenges?

Will provides no specific answers. Clearly, majorities have the right to pass laws, even though laws frequently burden some individuals. This is the essence of democracy. Just as clearly, majorities do not have carte blanche; in some areas, the Constitution limits the will of majorities and protects the rights of individuals. In our system of government, the judiciary plays umpire when laws are challenged.

All we have from Will is his suggestion to judges that deference is not always appropriate. This sets up a proverbial straw man, since I can think of no legal scholar—other than University of Texas law professor Lino Graglia—who believes that courts should always defer to the legislature. Most modern proponents of “judicial restraint” (such as Ed Whelan, Judge J. Harvie Wilkinson, or the late Robert Bork) criticize specific rulings that they contend are not supported by an honest reading of the Constitution. To them, “deference” means that courts should not make up “rights” not actually contained in the Constitution or invalidate laws simply because they disagree with their wisdom or efficacy.

As for the libertarian position on judicial review that has been advanced by Randy Barnett, Clark Neily, and others, Will flirts with this but (at least in this essay) does not explicitly endorse it.  Instead he bemoans the modern administrative state (which he describes as “promiscuously intrusive in the dynamics of society”) and questions whether the current leviathan state accurately reflects the will of the people or merely the interests of powerful special interests. ...

And in conclusion:

The essay ends with a re-framing of the question he never answers: “The challenge is to determine the borders of the majority’s right to have its way, and to have those borders policed by a non-majoritarian institution—the judiciary.” That majority rule is “not inevitably reasonable,” and that a proper reading of the Constitution will place “many things” beyond the reach of majorities are banal platitudes with which few scholars would disagree.

Thus Will does little to resolve the tension between the emerging libertarian model of constitutional theory and the traditional conservative approach he purports to disavow. Not all on the Right agree with the post-1937 marginalization of economic liberties, and many conservative legal scholars are open to arguments ... in favor of economic liberties provided that they are supported by constitutional text and consistent with originalist principles (for example, here and here).

08/12/2016

Seth Barrett Tillman on Presidential Succession
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman on his latest project: My Next Paper: Counting Framers & Counting Originalists.  From the introduction

The modern succession statute, the Presidential Succession Act of 1947, like its 1792 predecessor, provides for legislative officer succession** in the event that the presidency and vice presidency go vacant. Notwithstanding that majorities in both houses of the Second Congress voted for legislative officer succession, some modern scholars have suggested that the members erred, that is, the Presidential Succession Act of 1792 was unconstitutional.

These scholars have “appealed” from the “verdict” of the members of the Second Congress to the Framers sitting in the Second Congress. For example, Paul Taylor asserts that the 1792 Act “was opposed as unconstitutional by James Madison and a majority of other former Delegates to the Constitutional Convention.” Similar claims are made by Professors Akhil Amar, Vikram Amar, Feerick, Goldstein, Kalt, and Silva. But this position is not correct. Hugh Williamson—convention delegate from North Carolina and subsequently a Representative—was the only Framer holding an elected federal position at the time Congress enacted the 1792 statute who we know opposed legislative officer succession on constitutional grounds. In other words, we cannot credibly say that several, many, a plurality, much less a “majority” of the Framers opposed legislative officer succession on constitutional grounds. Indeed, to argue that even as few as two Framers, who were also members of the Second Congress, opposed legislative officer succession on constitutional grounds would be error.

And in conclusion:

There are those today who wish to impugn the constitutional bona fidés of the modern 1947 Act, which like its 1792 predecessor, provides for legislative officer succession. There are some policy grounds for objecting to the 1947 Act—I do not suggest that all the policy arguments go in one direction. But I do state that rooting a modern constitutional objection in Madison’s voice or that of the Framers as a group is entirely ahistorical. In these circumstances, one cannot appeal the judgement of the Second Congress (as a whole) to the Framers (as a group), and if that appeal—for whatever reason—has, in the past, convinced some unwary authors and consumers of prior legal scholarship, it is only because some originalists cannot count.

08/11/2016

Evan Bernick Responds to Richard Primus
Michael Ramsey

As an update to my prior post, here's another thoughtful response to Richard Primus on libertarianism and originalism -- at the Federalist Society Blog, Evan Bernick: The Libertarian Case for Originalism.  Interestingly he begins (as I would) with a rule of law argument:

Originalism’s appeal derives in substantial part from its promise of objectivity. It is best understood as a family of interpretive theories that are unified by two core premises, which Professor Lawrence Solum has termed the “Fixation Thesis” and the “Constraint Principle.” The Fixation Thesis holds that the meaning of any particular provision of the Constitution was fixed when that provision was framed and ratified, and that that meaning is distinguishable from the subjective understanding held by any particular person or group of people. The Constraint Principle holds that the Constitution’s fixed meaning should constrain constitutional practice (in particular, constitutional adjudication). Ascertaining the meaning of the Constitution’s words entails studying historical facts concerning patterns of word usage and seeking to identify the kinds of things that those words refer to. Originalism, at its best, is committed to empirical inquiry—committed to going wherever the evidence leads.

He then says (and I agree) that if the Constitution were (in its original meaning) an evil document, we would be entitled to reject it.  But it is not:

Fortunately, libertarians need not reject the Constitution. The Constitution is distinctly—indeed, remarkably—libertarian in its letter (its text) and its spirit (its animating principles, and the purposes of its particular provisions). The spirit of the 1787 Constitution was the spirit of 1776— the Constitution is designed to implement the political-philosophical premises set forth in the Declaration of the Independence, well-described by George H. Smith as the “radical edge of [classical] liberalism.” While the Framers disagreed amongst themselves concerning many topics, they did not disagree that the fundamental purpose of any legitimate government is the protection of individual rights—to defend oneself, to pursue a vocation, to acquire, use, and enjoy property, to engage in expressive activities, to generally act in accordance with one’s own judgment in pursuit of one’s own happiness, so long as one does not violate the equal rights of others. The letter of the Constitution establishes a national government that is inherently limited in the scope of its power and can take no action at all except pursuant to an affirmative grant of power from “We the People.” The Constitution divides the primary power of “We the People” (who, like the “one people” of the Declaration, are individual rights-bearers) between the federal government and the states and vests different kinds of federal power in specialized governmental bodies, thus avoiding the consolidation of power in any particular body and preventing any particular body from attacking individual rights unopposed. It throws up numerous structural impediments to government action—impediments that are calculated to promote deliberation and reflection and to allow various actors to oppose measures believed to be unconstitutional or merely unwise. Article III provides for an independent system of federal courts, insulated from the political branches and from the tides of public opinion, staffed by judges who are duty-bound to say what the law is, rather than what executive or legislative branch officials believe it ought to be. The Constitution is jam-packed with paragraphs full of rules that are not much fun to read but which are important components in a system that works to ensure that government power is deployed to (in the words of the Preamble) “secure the blessings of liberty”—not to endanger them. The addition of the Bill of Rights in 1789 affirms the Constitution’s distinctly libertarian character by specifically marking a list of individual rights off for protection—both natural rights to freedom of action that precede government and procedural rights calculated to safeguard natural rights. The Ninth Amendment makes plain that the list is not to be construed to deny the existence of other natural rights that could never be comprehensively enumerated and are retained by individuals.

Again, I agree (though he and I probably have a somewhat different view of the Ninth Amendment).

Finally, a return to the rule of law:

And yet, given that I have already conceded that the Constitution authorizes more government power than is ideal, the question arises: Even if I am correct about all of the above, why should libertarians want judges to be originalists in cases where taking a different approach might produce a result more favorable to liberty? Why settle for less?

The answer lies in the nature of judicial duty. Judges draw their power from Article III of the Constitution and (like all government officials) take an oath to “support this Constitution” (emphasis added). Their power over their fellow citizens is awesome—judges can impose ruinous fines, send people to prison for decades, and sentence people to death. They can ratify or invalidate governmental decisions to bulldoze entire neighborhoods for “economic development,” destroy livelihoods, and deny terminally-ill patients access to potentially life-saving medicines. With judicial power comes the duty to act in accordance with the law of the land. The oath judges take can be understood as forming a contract: Judges receive the power to reach binding judgments and make authoritative statements of what the law is in exchange for foregoing the opportunity to act on the basis of will—their beliefs or desires about what the law should be, or the beliefs and desires of other government officials—rather than the principles of reason in our law. Judges cannot seek to recapture that foregone opportunity—they may not draw power from the Constitution while refusing to be bound by its terms.

It is also highly doubtful that judges who depart from the law in the name of libertarian first principles would better serve the cause of liberty than faithful originalists. Hitting upon the correct political philosophy is insufficient to ensure its implementation. The Framers’ frankly staggering genius discloses itself primarily in the system that they developed to implement their political philosophy—a system that was adopted only after vigorous discussion and debate across the nation that is striking for its substance, its illumination of the stakes, and its erudition. Presuming to improve upon that system through judicial fiat is not only incompatible with judicial duty but highly unlikely in practice to produce actual improvements. Further, since libertarianism is decidedly not the dominant political philosophy on the federal bench, in the legal academy, or within the political branches of government, any advocacy of judicial departure from the Constitution in the name of political philosophy could legitimize judicial, executive, and legislative behavior that is profoundly hostile to libertarian ends.

A magnificent essay all around.

Ilya Somin on Richard Primus on Gary Johnson and Originalism
Michael Ramsey

In response to Richard Primus' claim that libertarians should not be originalists, Ilya  Somin at Volokh Conspiracy: Gary Johnson, libertarianism, and originalism,  Professor Somin writes:

In this article from last year, I explained in greater detail why there is considerable congruence between libertarianism and originalism. Enforcement of the original meaning certainly would not give us a completely libertarian polity. But it would still impose tighter limits on federal power and stronger protection for a variety of individual rights – including property rights and economic liberties – than is likely under the realistically feasible alternatives, such as “living constitutionalism” or wide-ranging judicial deference to the political process.

Primus also claims that the original Constitution many be inimical to libertarianism because its purpose “was to create a more powerful government, not a less powerful one.” But the government created by the original 1787 Constitution could simultaneously be more powerful than the very weak one that existed under the Articles of Confederation, and much less powerful than what we have today. Moreover, most of the important amendments since 1787 – the Bill of Rights and the Reconstruction amendments – limit government power in a variety of significant ways, most of which are highly congruent with libertarianism.

Agreed.

Plus my further thoughts: Professor Primus also argues that originalism is too indeterminate to serve rule-of-law values, and so should not be preferred for that reason.  I disagree on three grounds.  First, it's a comparative question.  It's not whether originalism is determinate in itself.  The question, as Justice Scalia put it well in his concurrence in McDonald v. City of Chicago, is whether originalism is more determinate than the alternatives.  As the principal alternative is living constitutionalism, the answer is clearly yes.  Living constitutionalism depends fundamentally on the moral and political values of the decisionmaker.  These are necessarily subjective.  Originalism depends on a textual and historical inquiry.  This inquiry may be difficult, and it may inevitably be somewhat influenced by the moral and political values of the decisionmaker (because it is hard to overcome one's biases).  But at its core it is an inquiry that is not inherently subjective.

Second, as my colleague and co-blogger Mike Rappaport has observed, one reason originalism appears somewhat indeterminate is that originalist scholarship has only recently become widely practiced.  Many constitutional provisions -- even very important ones -- have simply not been fully explored from an originalist perspective.

Third, in my view originalism's indeterminacy is greatly overstated.  People tend to focus on the apparently general phrases of the rights provisions: freedom of speech, equal protection, etc.  These may or may not be difficult, but they are not all of the Constitution.  Here are two counterexamples from my scholarship:

(1)  "Declare war."  In my view, it is clear that this power of Congress (a) was exclusive and (b) covered any initiation of conflict with a foreign power, whether by formal declaration or armed attack.  Although there are some minority views, most scholars who have studied the issue appear to agree.  While there is a good bit of uncertainty about the war powers of the president and Congress, it is mostly at the margins.  The core proposition -- that presidents cannot start wars -- seems clearly established by text, original understanding, and post-ratification practice.

In contrast, under a living Constitution approach, it's a hard question.  International power structures, geopolitics and military technology are quite different today than they were at the founding.  As Eric Posner and Adrian Vermeule would say, the speed and complexity of international events have increased to an extent the framers could not have imagined.  Perhaps national security now requires less constraint on the president.  Whether this argument is persuasive depends on the audience.

(2) Citizenship of the U.S.-born children of illegal immigrants.  Again, I think this question is clear.  As a matter of text and original meaning, the Fourteenth Amendment says flatly that all persons born in the U.S. are citizens, with an exception that (given its obvious original meaning) isn't applicable.  But under a living Constitution, the question becomes subjective and value-driven.  One could easily say that circumstances have changed, that a broad reading of the clause does not make sense in today's world of widespread illegal immigration, and that therefore it should not be extended to a situation the framers never envisioned.  Again, whether this is persuasive depends on the values of the decisionmaker.

I can't say whether Professor Primus thinks originalism is no more determinate than living constitutionalism in these circumstances, but if that is what he thinks, I urge him to take a closer look at originalist scholarship and the text's original meaning.