Benjamin Justice: The Originalist Case Against Vouchers
Michael Ramsey

Benjamin Justice (Rutgers University) has posted The Originalist Case Against Vouchers: The First Amendment, Religion, and American Public Education on SSRN. Here is the abstract: 

During the last three decades, proponents of public school voucher programs on and off the bench have turned to original meanings discourse to argue that spending public dollars for religious education is consistent with the original meaning of the first amendment, as incorporated by the fourteenth. The following account argues that these arguments are wrong. Whether one weighs the narrow historical claims of formalist interpretations on their own terms, or whether one looks beyond them to a more historically comprehensive view of past meanings and intentions, or both, the originalist case is against vouchers.

This essay lays out its case in five parts. Part One examines Thomas Jefferson and James Madison’s views on religious establishment in mass, public education through their legislative proposals in Virginia and their public and private writings. Part Two seeks to understand the broader intellectual context in which Jefferson and Madison wrote (asking how mainstream their ideas were) by examining the most comprehensive public school plans written just before or concurrently to the ratification of the First Amendment. Part Three examines a singular public act in the 1790s: an essay contest sponsored by the American Philosophical Society (APS) asking contestants to design a system of public education suited to the “genius” of the new national government. Part Four examines education-related law developed during the early republic. These sources include the Northwest Ordinances of 1785 and 1787, State Constitutions, and state statutory law. Part Five of this essay carries the ideas and laws of the early republican period forward into the 19th century, briefly sketching out the implications of a robust originalist account of religious establishment and public education for understanding the slow evolution of state support for public education that culminated in the consolidation of a federated national system after the Civil War. The essay concludes by exploring the implications of a more historically robust originalist doctrine for contemporary debates about the relationship between religion and public education, with special attention to school choice programs.

The purpose of this essay is not to draw upon contemporary theory or research for or against school choice, but to stick to a purely originalist perspective. Ceteris paribus, the best way forward for proponents of school choice would be to repudiate their flawed originalist interpretations and instead embrace the revolutionary aspects of their consumerist doctrine: that “true private choice” makes good sense today, even if it did not in the late 18th or 19th centuries. Likewise, those opposed to privatizing mass education need look no further than the original intentions of the founding fathers of the republic and the meaning of the laws they enacted to preserve a republican form of government.


Justice Breyer's Missing Constitutional Value
Michael Ramsey

Via How Appealing, Justice Breyer spoke at Yale Law School and, as reported here, identified the five core values of the Constitution as: "democracy, human rights, equality, separation of powers and the rule of law."

So what's missing here?

What about: Federalism.

Quite simply, without the Constitution's commitment to federalism there would have been no Constitution.  The drafters -- not all of whom shared this value -- recognized that their document would not be ratified if, in the words of nationalist Gouverneur Morris, it contained anything "too terrible to the states."  Thus the drafters, to allay fears of the new national government they were creating, developed the idea of enumerated powers: the national government need not be feared as a threat to liberty because it would have only a few specified powers, with the rest left to the states.  This structural protection of liberty became a centerpiece of the federalists' defense of the Constitution during the ratification debates, neatly summed in Madison's observation in Federalist 45 that the "powers delegated ... to the federal government are few and defined."

Even so, the Constitution was almost defeated.  It needed nine states to ratify; the first seven came easily.  Of the remaining six, North Carolina and Rhode Island rejected it, and in Massachusetts, Virginia and New York substantial anti-federalist sentiment existed, arising in significant part from fear of a powerful national government.  Massachusetts was the first of these to vote, in a convention that probably had an anti-federalist majority at the outset.  But a deal between moderate anti-federalist Sam Adams and the careful fence-sitter Governor John Hancock allowed a vote for ratification coupled with a call for future amendments -- among them, at Adams' insistence, the predecessor of the Tenth Amendment, reaffirming the enumerated powers structure.  Similarly, in Virginia and New York, the Constitution's supporters overcame anti-federalist sentiment in significant part by reassurances that the national government had only limited powers, with most powers reserved to the states.  Even so, the vote in all three states was close.  Had the Constitution's defenders not been able to point to the enumerated powers structure (and a promise to reinforce it through what became the Tenth Amendment) likely the whole enterprise would have been lost.

Without exaggeration, one might say that federalism is the first value of the Constitution.  Justice Breyer may not like it (as we know from his votes), but that's no ground to omit it. 


Robert Pushaw: Fortuity and the Article III 'Case'
Michael Ramsey

Robert Pushaw (Pepperdine University - School of Law) has posted Fortuity and the Article III 'Case': A Critique of Fletcher's 'The Structure of Standing' (Alabama Law Review, Vol. 65, No. 289, 2013) on SSRN. Here is the abstract: 

25 years after William A. Fletcher wrote “The Structure of Standing,” Robert Pushaw builds upon Fletcher’s theory of standing and offers an alternative. Pushaw argues that Article III's text, drafting and ratification history, and early implementation -- materials that Professor Fletcher explicitly declined to consider -- reveal a basic and universally applicable standing principle. Standing should hinge on whether the plaintiff is presenting a true Article III “Case,” which requires a showing that her federal legal rights have been invaded fortuitously (i.e., involuntarily as a result of a chance occurrence) so that she can legitimately seek a judicial declaration of the law. Restricting federal courts to their Article III role of expounding federal law only as needed to exercise their “judicial Power” to decide genuine “Cases” helps implement the Constitution's system of separation of powers.

Pushaw’s theory that only “accidental” plaintiffs have standing to bring “Cases” leads him to modify Professor Fletcher's approach in two key ways. First, whereas Fletcher contended that Congress has plenary power to confer standing to vindicate statutory rights, Pushaw would accord such legislative judgments only a strong presumption of constitutionality -- but one that can be overcome in certain circumstances where blind judicial deference threatens separation of powers. Second, Pushaw agrees with Fletcher that particular constitutional clauses implicitly suggest who can enforce them and that Congress cannot grant standing more generously. Pushaw would add, however, that plaintiffs who bring “Cases” arising under the Constitution must demonstrate that their constitutional rights have been violated by happenstance events beyond their control.

Part I of the article describes modern standing law and identifies its serious flaws. Part II discusses Professor Fletcher's proposed solution to these problems. Part III evaluates his thesis in light of the intervening twenty-five years of standing cases and scholarship. Part IV sets forth Pushaw’s “accidental plaintiff” theory of standing as a more practical and historically grounded alternative.

RELATED:  The Supreme Court seems likely to grant certitorari to review this case at its conference at the end of this month.  The question presented is:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

(My prediction is based on the fact that the Court previously granted certiorari in a very similar case, First American Financial Corp. v. Edwards, which it then dismissed without reaching the merits.  See here, p. 2).


The Original Meaning of "Legislature"
Michael Ramsey

At The Atlantic, Garrett Epps highlights Arizona State Legislature v. Arizona Independent Redistricting Commission, a case on appeal to the Supreme Court scheduled for the Court's upcoming conference.  As he explains:

Here’s another constitutional conundrum: What does “legislature” mean?

The answer could determine an issue at the heart of our current poisonous politics. Can the voters of a state take control of drawing House districts out of the hands of their elected legislators and entrust it to a bipartisan commission? That’s what Arizona voters did in 2010. Now the legislature is demanding to be allowed back in.  

Article 1, section 4, clause 1 of the Constitution says that “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations ....” No one questions that state governments can draw their own legislative districts. But what does “legislature” mean? Does it mean “the legislative power of a state,” or “the bunch of politicians with bad haircuts who meet at the state capitol every year or so”?

Contrary to Professor Epps and the lower court, I think obviously the latter.

First, in other places where the Constitution uses "Legislature" it pretty clearly means the elected representative of the state, not just the state generically.

Article I, Section 2: "The Electors [for the House of Representatives] in each State shall have the Qualifications requisite for Electors of the most numerous branch of the State Legislature."

Article I, Section 3:  "The Senate of the United States shall be composed of two Senators from each States, chosen by the Legislature thereof ..." and even more conclusively: "if vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof shall make temporary Appointments until the next meeting of the Legislature..."

Article IV, Section 4: "The United States shall ... protect each of [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Article V: "The Congress ... on the Application of the Legislatures of two thirds of the several states, shall call a Convention for proposing Amendments ... which ... shall be valid ... when ratified by the Legislatures of three fourths of the several States..."

These clauses contemplate specifically the body of elected representatives (which has "Electors", which may be "in recess" and may be "convened").  Further, several of them have routinely been assumed to refer only the body of elected representatives -- for example, who ratifies constitutional amendments.

In addition, "Legislature" would be superfluous in several of the clauses if it meant just whomever the State designated to act for it.  Article V, for example, could then just say that amendments are effective "when ratified by three fourths of the several States..."  Saying "when ratified by the Legislatures of three fourths of the several States..." is meaningful only if "Legislatures" refers to a specific body within the States, not just to the State as a whole.

Or, to put it another way, the Constitution's use of "legislature" of the state is, at minimum, a contrast with the state's executive.  That is, in all these phrases the Constitution is saying that the legislature and not the executive makes the relevant decision (except in some cases when the legislature is unavailable).  But if "legislature" meant just whomever exercises a particular power on behalf of the state (as Professor Epps suggests) then the state could give its executive that power (say, the power to approve amendments) and the executive would then be, paradoxically, the "legislature" for that purpose.  This simply makes nonsense of the text.

Moreover, in ordinary language "Legislature" clearly means the assembly of elected representatives: if someone is introduced as a "member of the state legislature" surely we know that person is an elected representative and not just someone who exercises the power of the state in some way.  I've not seen anything to suggest that this meaning was any different in the eighteenth century.  (The appellants' brief has plenty of examples the other way).

It may be the case, as Professor Epps says, that non-partisan boards are superior to legislatures for drawing election districts.  But the Constitution says "Legislatures".  We shouldn't pretend that means something other than what it obviously does.

The case is unusual in that it is an appeal rather than a petition for writ of certiorari, making it at least somewhat more likely that the Court will hear arguments; its other option is to summarily affirm (rather than just to deny cert.).  I'd be sad (although not necessarily surprised) if the Court went along with such a non-textual reading without really thinking about it.


Frank Buckley on Constitution Day and the September 3 Constitution
Michael Ramsey

At NRO, Frank Buckley (author of The Once and Future King):  Two Cheers for Constitution Day! -- With the benefit of hindsight, the Framers might prefer the Constitution they didn’t sign.  From the introduction:

Two hundred and twenty-seven years ago the Framers devised the wisest constitution then known to man. That was on September 3, 1787. Unfortunately, they then began to tamper with it, and the document they signed two weeks later has given us the maladies that now beset us.

What was the difference between the two constitutions? On September 3 the delegates had arrived at what they thought were two settled principles. The first was that Congress should appoint the president. Over the prior three and a half months, they had voted six times for a congressionally appointed president. At no time did they vote for a popularly elected president. The second principle was that the president might be removed by a simple majority vote in the Senate, after impeachment in the House. The senators, moreover, might do so whenever they thought the president was failing on the job and guilty of “maladministration.”

Some worthwhile pushback in the comments, too.

Should Congress Adopt a New Independent Counsel Statute?  The Constitutional Issues
Mike Rappaport

One of the principal concerns about the Obama Administration are the scandals and the claims that it is violating the law.  And sadly the congressional investigation process does not seem to be adequately doing its job.  Thus, it is worthwhile thinking about alternative institutions.

The principal method used back in the 80s and 90s was the independent counsel (IC). Unfortunately, the independent counsel was both unconstitutional (for the reasons discussed in Justice Scalia’s dissent in Morrison v. Olson) and subject to serious problems. But while the original IC statute had these problems, that does not preclude employing a reformed IC to investigate the executive branch.

Let’s start with the unconstitutionality of the original IC. Under the old regime, the IC was not subject to the direction of the President and therefore in my view was unconstitutional. In addition, the IC was appointed by a court on the ground that he was an inferior officer, even though he was clearly in my view a principal officer who could be appointed only by the President with the advice and consent of the Senate.

Both of these problems are rectifiable. First, the IC could be made formally subject to the direction of the President. The statute might provide that the IC is subject to the direction of and removal by the President, but that the Congress believes that presidential direction of the IC would be problematic as a policy matter and requests that the President not direct the IC. The statute might also require the IC to disclose to the public if the President gave him a direction and to keep notes of what the direction was. It is likely under this arrangement that the President would not give any orders to the IC, because he would pay a significant political price for doing so.

Second, the IC should be treated as a principal officer who is appointed by the President with the advice and consent of the Senate.  This creates an issue, since the President might nominate someone who is a loyalist and will not vigorously investigate his administration. To guard against this, the Senate would have to confirm only independent nominees.  If the Senate were controlled by the party opposing the President, this would be likely to occur.  If the Senate were controlled by the President’s party, then it is possible that they would confirm a less than fully independent IC, but by no means certain since the Senators might not want the political damage from appearing to protect improperly the President.  To guard against this, the statute could require that the IC be a member of the party opposing the President. (Alternatively or perhaps in addition, the statute could provide that a qualification of being an IC is to be independent of the President and the IC should not have any significant connections with either the President, his administration, or his party.)

Through these mechanisms, the IC would be constitutional, but would retain significant independence to conduct his investigation. It is true that the IC would not be as fully independent of the President as was the IC under the old regime.  But the desire to get 100 percent independence rather than the 90 percent my proposal provides is what rendered the old statute unconstitutional.

Next time, I will address some of the policy issues with the IC.

David Brink: Originalism and Constructive Interpretation
Michael Ramsey

David Brink (University of San Diego School of Law) has posted Originalism and Constructive Interpretation on SSRN. Here is the abstract: 

This essay argues that a number of Dworkin’s signature jurisprudential claims -- including his criticism of Hart’s model of rules, his moralized reading of the Constitution, and his defense of constructive interpretation -- cohere reasonably well around a distinctive form of originalism -- originalism of principle. This may seem surprising because originalist insistence on fidelity to the original meaning of constitutional language or the intentions of the framers is often seen as the antithesis of the sort of moralized interpretation that Dworkin defends, and Dworkin explicitly criticizes some forms of originalism. But there are different ways of understanding meaning and intention and fidelity to either. Dworkin consistently opposed conceptions of interpretation that would constrain the meaning of legal provisions by conventional beliefs about the extension of the language in which those provisions are formulated or by the framers’ conceptions of the normative concepts underlying those provisions. That opposition reflects a plausible view about the semantics of legal disagreement. If we associated originalism with these discredited semantic assumptions, then Dworkin should be a critic of originalism. But once we are clear about the semantic mistake such interpretive conceptions make, we can understand why Dworkin was attracted to a different form of originalism -- an originalism of principle according to which interpreters must ascertain the best conception of the normative concepts that the framers of the provision introduced. This kind of originalism of principle can be understood either as fidelity to the correct public meaning of legal provisions or as fidelity to the abstract intentions of the framers of those provisions. Either way, it implies that the interpretation of legal provisions employing normative concepts cannot be done without making and defending substantive normative commitments about the extension of those concepts. Originalism of principle is an important part of constructive interpretation, but it does not exhaust constructive interpretation, because constructive interpretation includes in its account of fit a role for precedent and continuity of interpretive conception. But within constructive interpretation interpretive history and sameness of conception have only pro tanto significance that can be overridden when a rival conception is sufficiently normatively superior.


The Constitution and Omega Glory
Mike Rappaport

Recently, Bryan Caplan put up a Facebook post by “political scientist and game designer Chris McGlothlin” on the Star Trek episode Omega Glory.  That is the one where Kirk goes to a planet and instructs the Yangs about their document, “The Constitution of the United States.”  The Yangs – through centuries of decline – cannot even read the document properly and do not understand its meaning.  Kirk corrects them.  For many originalists, Omega Glory is a metaphorical tale of how the Supreme Court and the modern legal culture have misunderstood the Constitution.

McGlothlin doesn’t seem to like the episode, but to my mind his post makes one mistake after another.  First, he writes that “we never see a copy of the Bill of Rights in the bundle of aged parchments Kirk leaves them. . . . Without the Amendments, those Kohms are goners.

I am not sure what this point is supposed to mean.  The Bill of Rights is part of the Constitution, so what is the problem?  Moreover, the Bill of Rights is important, but these amendments are hardly the only important ones.  The original Bill applied only to the federal government.  If one wants additional protections against the states, one has to look to the 14th Amendment.  And one must look there (and elsewhere) for equality limitations.  The unamended Constitution was a great start, but one of the best things about the Constitution is that it provided for amendments, which continued to improve the document.

Second, McGlothlin writes: “And since there's no mention of judicial review in any of the documents they have, the Kohms had better hope this planet's copycat nature includes a Arburymay v. Adisonmay (or whatever they'd call it) on the docket soon. Otherwise, we're once again left with dead Kohms stacked up like cordwood.”  Again, there is quite a bit wrong with this view.  It is simply wrong to suggest that the original Constitution did not provide for judicial review.  The Supremacy Clause specifically refers to judicial review of state laws and other provisions make clear that judicial review applies to federal law as well.

And while judicial review is fine, it is hardly the only check in the Constitution.  Without impeachment or midterm elections or other provisions, the President might not even listen to the Supreme Court.

Harold Anthony Lloyd: Real-World Semantics and Fictions of Originalism
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Plane Meaning and Thought: Real-World Semantics and Fictions of Originalism on SSRN. Here is the abstract: 

This article explores how meaning and thought work in the real-world of human experience. In doing so, it explores five basic planes or levels of such meaning and thought: references, issues, rules, applications of rules, and conclusions. It also explores framing, metaphor, and narrative in constructing such planes or levels of meaning and thought as well as some basic resulting forms of thought. Additionally, it examines original meaning as a cautionary negative example of how real-world meaning and thought do not and cannot work. Given the flexibility of framing involved in the multiple levels of real-world meaning and thought, originalism cannot sustain its claims of greater objectivity when compared to other interpretive approaches.


Reinvigorating the Nondelegation Doctrine through the Constitutional Amendment Process
Mike Rappaport

One of the ways that small government and democratic accountability could be promoted in the modern world is through the reinvigoration of the nondelegation doctrine.  Under that doctrine, administrative agencies would be prohibited from making discretionary legislative decisions and therefore Congress would have to do so.  If Congress, rather than administrative agencies, were to make the discretionary legislative decisions, this would both reduce the number of regulations that were enacted and would ensure that members of Congress would have to be responsible for their decisions.  By contrast, under the current system of delegation, the administrative agencies can use the efficiency of the administrative process to pass large numbers of regulations and members of Congress can avoid accountability for these regulations, always claiming that they did not intend any particular regulation which might turn out to be unpopular or controversial.

One common argument against reinvigorating the nondelegation doctrine is that it is not possible in the modern world.  Congress has neither the expertise nor the time to enact all of these regulations.  But this is not actually a good argument.  There is a method that would allow Congress to make these decisions, even assuming that it does not have the expertise or time to do so.

Under a well known proposal, all substantial regulations would have to receive the approval of Congress to become law.  The administrative agency would propose the regulation in much the same way it does now.  Thus, it would reflect the agency’s expertise as well as the efficiency and speed of the administrative process.  But the regulation would not go into effect unless it was approved by the Congress. 

To ensure that Congress took action in a quick manner, congressional rules would fast track these regulations.  They would be required to be brought to the floor within a limited period of time, there would be limited debate, and there would be no amendments allowed.  (Under a variation of the proposal, one might allow an amendment to be proposed with a supermajority of the house’s approval.)  Each house would then have to vote up or down on the regulation, and if it passed, it would be sent to the President.  Since it would then be a law, there would be no delegation to the agency.

The problem with this approach is not that it is unworkable or undesirable.  The problem is that one very powerful entity would hate it – the Congress.  They would be required to take positions on legislation with very little power to amend the statute or to obfuscate.  Congress will never pass such a reform.

The Constitution does allow a way to adopt such a provision.  It could be passed as a constitutional amendment through the convention method for amending the Constitution.  The states could apply for a constitutional convention, the convention could adopt the procedure, and the states could ratify the amendment.  While it might or might not pass, it would at least having a fighting chance and not have to overcome an entity with a conflict of interest.

Unfortunately, the convention method does not work, as I have described here and here.  The fear of a runaway convention, encouraged by law professors who often do not want that method interfering with Supreme Court decisions, means that there is never sufficient support for calling a convention.

Yet, as time passes, the list of amendments that would constrain Congress’s abuses and excesses only grows.  Add this nondelegation reform to the list.