05/20/2016

Lee Strang: State Court Judges are Not Bound by Nonoriginalist Supreme Court Interpretations
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted State Court Judges Are Not Bound by Nonoriginalist Supreme Court Interpretations (FIU Law Review, Vol 11, p.327, 2016) on SSRN. Here is the abstract:

In this brief Essay, I provide a tentative argument for modest state court interpretative independence. I argue that state courts possess interpretative independence from nonoriginalist U.S. Supreme Court interpretations. I also argue that state courts must follow all U.S. Supreme Court judgments (within the Court's jurisdiction) and originalist Supreme Court opinions. I close by suggesting that this modest state court interpretative independence is likely to advance federalism’s three primary values.

An interesting paper -- I saw Professor Strang present it at the FIU conference.  Here is the video.  I am not sure, on his premises, why state court judges should be bound by incorrect originalist Supreme Court interpretations either (though I see the problem with taking it that far).

05/19/2016

Trump's Justices [Updated with a Comment on the Senate's Duty]
Michael Ramsey

As has been widely reported, Donald Trump released a list of prospective Supreme Court nominees.  Here's the list (with links, via Powerline):

Steven Colloton (8th Cir.)
Allison Eid (Colorado Sup. Court)
Raymond Gruender (8th Cir.)
Thomas Hardiman (3d. Cir.)
Raymond Kethledge (6th Cir.)
Joan Larsen (Mich. Sup. Court)
Thomas Rex Lee (Utah Sup. Court and brother of Sen. Mike Lee)
William Pryor (11th Cir.)
David Stras (Minnesota Sup. Court)
Diane Sykes (7th Cir.)
Don Willett (Texas Supreme Court)

Positive reactions come from Eugene Volokh, Ilya Shapiro ["Donald Trump's Terrific List of Fabulous Judges"], and Paul Mirengoff and John Hinderaker [Powerline] -- a good cross-section of conservative/libertarian thinking.

I'm only familiar with the judicial philosophy of Diane Sykes, William Pryor and (to a lesser extent) Tom Lee, but all three have  strong originalist/textualist orientations.  As Eugene Volokh points out, three (Eid, Lee and Stras) are former Clarence Thomas clerks, and Joan Larsen is a former Scalia clerk.

Notably, these are mostly not names that would come to mind for a non-lawyer not much interested in courts, and yet all seem plausible picks likely to be broadly acceptable in conservative/libertarian circles.  I conclude that Trump has some very thoughtful legal conservatives advising him on this.  (Of course, whether in the end he would listen to them is another question).

UPDATE:  Judiciary Chair Grassley likes the list.

So, for those who think the Senate has a constitutional duty to offer advice on presidential nominations, why isn't this advice (offered through a duly designated officer)?  The Senate's message to the President is, pick someone from this list (or someone similar).  Of course, the President won't, and needn't -- but surely there's no obligation to offer welcome advice.

And for those who think the Senate has a constitutional duty to "consider" the nomination of Judge Garland, why isn't this "considering" it?  The Senate [through a duly designated officer] has concluded, after considering the matter, that Judge Garland is not similar in judicial philosophy to the people on the Trump list.

FURTHER UPDATE:  Josh Blackman is "cautiously optimistic" about the list, at NRO.

05/18/2016

Michael McConnell on the Ninth Amendment
Mike Rappaport

One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don't understand the provision, we are in no better position to enforce it than if an ink blot covered it.

Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights.  Others have interpreted it to have a much less significant role.

In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don't think I would have done as good a job as McConnell does.

The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” McConnell argues that this provision operates to protect certain natural rights, but not by conferring constitutional status on those rights. Instead, it  protects those rights as natural rights were protected prior to the Constitution’s enactment. Such rights were protected through equitable interpretation. That is, if a congressional statute were to appear to infringe on such a natural right, it should not be interpreted to have that effect unless the statute’s language was clear on the matter. Otherwise, it should be assumed that Congress did not intend to infringe on a natural right. This is both a natural interpretive rule and the way that natural rights were protected prior to the Constitution.

Why was the Ninth Amendment needed? The thought was that by enumerating certain rights in the Bill of Rights, that might be taken to indicate that all other rights that the people enjoyed prior to entering civil society would be eliminated. When a list of rights, especially a long list was compiled, it is a reasonable inference to assume that only those rights should be protected. After all, if other rights were intended to be protected, why were they not added to the list? So the Ninth Amendment was added to prevent anyone from inferring from the addition of the Bill that other retained natural rights were eliminated or given up.

What is the evidence for this interpretation? First, it flows from the text of the Amendment.  That the Amendment is referring to natural rights is supported by the reference to “rights retained by the people.” Under Lockean natural rights theory, retained rights were those natural rights that the people had not given up when they formed the political society by establishing the Constitution.

This interpretation also provides a strong reading of the terms “deny or disparage.” Under the interpretation, these natural rights would not be denied nor disparaged. That is, those natural rights would continue to exist in the same way that they had existed prior to the Constitution. Significantly, the alternative interpretation of the Amendment—which would enforce the natural rights as constitutional rights—has problems here. Not denying or disparaging a natural right is not the same thing as constitutionalizing such a right. Giving that right its traditional protection would not disparage it.  Constitutionalizing it elevates it.

I would add two other complementary functions of the Ninth Amendment which are implicit in McConnell’s argument. First, natural rights were also often protected as a matter of common law. If the Bill of Rights was taken to eliminate the natural rights, then they might be thought to be repealed as common law rights. The Ninth Amendment eliminates this inference. Second, the violation of natural rights was also thought to justify revolution under a Lockean theory. Thus, it was important that those rights not be taken to be repealed. In both of these cases—common law and justifying revolution—the Ninth Amendment protects the pre-constitutional role of natural rights, without constitutionalizing those natural rights.

Jason Mazzone: Me the People
Michael Ramsey

Jason Mazzone (University of Illinois College of Law) has posted Me the People on SSRN.  Here is the abstract:    

This essay is a contribution to a symposium on Randy Barnett’s book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016) [Ed.:  see here]. The essay focuses on Barnett’s treatment of courts. On the one hand, Barnett complains, judicial decisions of the past produced a dangerous consolidation of governmental power and truncated rights. On the other hand, fixing the problem — restoring a “republican” constitution — requires highly motivated judges to keep power in check and promote rights. These two impulses are in tension and, at least without additional work on both the diagnostic and remedial sides, appear incompatible. The root of the tension is Barnett’s failure to perceive the inherent limits to judicial recognition of expansive constitutional rights when judicial power itself is consolidated. Barnett celebrates dispersed legislative and executive power as a means for states and localities to adopt different regulatory programs, with variation triggering citizen foot voting. He complains that such experimentation has become more difficult with legislative and executive powers increasingly concentrated at the national level because the end result is a one-size-fits-all regulatory scheme. Yet Barnett does not extend the same analysis to the courts, where a one-size-fits-all judicial scheme is equally problematic for Barnett’s constitutional vision. Consolidated judicial power, where ultimate authority rests in the Supreme Court of the United States, does not serve well to generate expansive rights for “We the People.” It is even less suited to Barnett’s own individualistic version of rights — a sort of “Me the People” — in which, he says, each of us is sovereign and courts exist to vindicate our own personal liberties. Barnett’s suggestion that courts really will get things right once they are stacked with originalist judges (and a few constitutional amendments are ratified) is a hypothesis unlikely to be tested anytime soon. In the interim, Barnett’s program could find hope in unexpected places: the jurisprudential approaches of Justices John Paul Stevens and Sonia Sotomayor point to a role for courts that would better promote experimentation and protect more securely individual rights along the lines Barnett himself advocates.

05/17/2016

Who Stole Professor Michael Paulsen?
Seth Barrett Tillman

This is a comment on Professor Paulsen’s Checking the Court, N.Y.U. J.L. & Liberty 18 (2016) (noted here).

In a 1993 article, Professor Paulsen suggested that the President has independent interpretive autonomy over legal issues involving federal law (including constitutional law), and that the President may “decline to enforce judicial decrees that he believes rest on an unsound interpretation of the law—what I [i.e., Professor Paulsen] have called the Merryman power.” Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 109 (1993) (emphasis added).

Professor Paulsen defended this presidents-have-interpretive-autonomy position, in substantial part, based upon Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.), also reported at 4 (pt. 1) A Collection of In Chambers Opinions by the Justices of the Supreme Court of the United States 1400–12 (Cynthia Rapp & Ross E. Davies comps., 2004), and more importantly, based on President Lincoln’s conduct following Chief Justice Taney’s ruling in that case. See Paulsen, The Merryman Power, supra at 95 (“Lincoln did not, except by implication, assert what I call ‘the Merryman power’—authority to disregard, or to countermand, judgments rendered by federal courts.” (emphasis added)); id. at 89 (“In Ex parte Merryman, Lincoln ... refus[ed] to honor a judicial decree as binding law on the executive, even in that specific case.” (emphasis added)); see also Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1290 (2008) (“[Lincoln’s] position, as expressed by his (in)action [post-Merryman], was that the President was not bound to obey and enforce judicial decrees that he believed were incorrect, whenever circumstances suggested complying with the decision would be in some meaningful way harmful to important national interests.” (emphasis added)).

Finally, there can be no genuine doubt that when Professor Paulsen argued that Lincoln had failed to comply with Taney’s Merryman “decree,” Paulsen was referring (at least) to Taney’s May 28, 1861 final Merryman order, and not (merely) to Taney’s May 26, 1861 preliminary ex parte order to produce John Merryman, and not (merely) to Taney’s May 27, 1861 interim attachment order against General Cadwalader. See, e.g., Paulsen, The Merryman Power, supra passim; see also Paulsen, Lincoln and Judicial Authority, supra at 1285 (“Lincoln’s denial of judicial supremacy [in Ex parte Merryman] extend[ed] . . . even to final judicial decrees in a particular case . . . .” (emphasis added)); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What The Law Is, 83 Geo. L.J. 217, 278 (1994) (explaining that Taney “ordered Merryman released”); id. at 279 (“Lincoln dissented. He did not release Merryman as Taney had ordered.”); cf. Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691, 719 (2004) (reviewing Daniel Farber, Lincoln’s Constitution (2003)) (“Lincoln erased even that line, refusing to abide by Chief Justice Taney’s order in Ex parte Merryman invalidating Lincoln’s suspension of the privilege of the writ of habeas corpus, and declining to enforce Taney’s granting of the writ and contempt order against one of Lincoln’s generals.” (emphasis added)).

Professor Paulsen has made these claims, and closely related claims, continuously since 1993 (when he published The Merryman Power), and in more than a dozen academic articles, right up until and including 2015, where they appear yet again in his (co-authored) book and subsequent article in First Things. See, e.g., Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 249 (2015) (“Chief Justice Roger Taney ruled against President Lincoln’s suspension of the writ of habeas corpus in the Civil War in 1861, but Lincoln disregarded that decree . . . .” (emphasis added)); id. (“Abraham Lincoln did not comply with Chief Justice Taney’s order in Merryman.”). Compare Michael Stokes Paulsen & Luke Paulsen, The Great Interpreter, First Things, May 2015, at 50 (“President Lincoln defied the Court’s order—the only time a [P]resident has done this in our nation’s history—arguing that the Constitution was ambiguous on the point and that circumstances necessitated his action while Congress was out of session.”), with Paulsen, The Merryman Power, supra at 83 n.5 (“Merryman is the most famous example of presidential refusal to enforce a Supreme Court judgment, but it is not the only one. President Andrew Jackson is reputed to have refused to enforce the Supreme Court’s decision in Worcester v. Georgia . . . .”).

Although Professor Paulsen has had other arguments and evidence in support of his presidents-have-interpretive-autonomy position, e.g., arguments based upon constitutional structure, separation of powers norms, and some Hamilton-authored originalist materials, Paulsen’s repeated focus on Merryman and Lincoln’s response to Merryman has always been key (if not the key) to his argument. Indeed, Paulsen named his thesis: The Merryman Power. And it is no surprise that Paulsen would rely on Lincoln in this manner—today, the memory of the assassinated President enjoys a status akin to that of a secular saint. (Perhaps—deservedly so.) Like President Washington and the precedents Washington established, practices established by Lincoln carry a presumption of constitutional propriety, if not more.

However, in Professor Paulsen’s most recent paper, Checking the Court, N.Y.U. J.L. & Liberty 18 (2016), although Paulsen continues to defend his presidents-have-interpretive-autonomy position, Paulsen’s two decade old argument based upon Lincoln’s post-Merryman war-time conduct is nowhere to be seen. “But now all is to be changed”?

 Now it is possible that I am reading too much into this: i.e., too much into an argument’s absence. But such arguments from absence are sometimes justified. See, e.g., Paulsen, Lincoln and Judicial Authority, supra at 1290 (“[Lincoln’s] position, as expressed by his (in)action, was that the President was not bound to obey and enforce judicial decrees that he believed were incorrect . . . .” (emphasis added)). Perhaps, Professor Paulsen continues to believe the standard Merryman narrative which he has done so much to promote in academic journals for more than two decades: viz: Chief Justice Taney ordered President Lincoln to release John Merryman, and Lincoln refused to comply with Taney’s order. If that is the situation, if Paulsen continues to believe the standard historical narrative, then there is no grand mystery at work here. But given that this historical narrative has occupied pride of place in Paulsen’s many publications (and he is hardly alone in promoting the standard narrative in this manner) ... its absence from his 2016 paper is somewhat odd ... if Professor Paulsen has changed his mind—might not he tell us why, and how if at all his loss of faith in the standard historical narrative might modify the conclusions he put forward in The Merryman Power and in his subsequent publications?

And if we can get Professor Paulsen to respond to this inquiry ... perhaps, he could also clarify a subsidiary point.

In 1993, Professor Paulsen squarely rejected the position that Ex parte Merryman was a circuit court case; instead, he embraced the position that Taney decided Merryman in chambers. See The Merryman Power, supra at 90 n.27. But in 1999, Paulsen wrote that Merryman was decided by Taney, not merely while on circuit, but in his capacity “as circuit justice.” Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-five Years, 83 Minn. L. Rev. 1337, 1351 (1999). Then, in 2015, Paulsen suggested Merryman was a Supreme Court decision. See Paulsen & Paulsen, supra at 177 (“Lincoln understood the Constitution not necessarily to mean whatever the Supreme Court said it meant concerning slavery and national authority (Dred Scott) or concerning presidential power in wartime (Ex parte Merryman).” (emphasis added)). Which is it?

Richard Kay: Constitutional Construction and the (In)Complete Constitution
Michael Ramsey

Richard S. Kay (University of Connecticut School of Law) has posted Constitutional Construction and the (In)Complete Constitution on SSRN.  Here is the abstract:    

The literature of constitutional originalism has, in recent years, featured a new concept, “constitutional construction.” This Essay is a critical examination of that concept. It demonstrates that, contrary to claims made for it, the difference between “interpretation” and “construction” is not a common and familiar distinction in common law adjudication. It therefore lacks the historical pedigree its proponents claim for it. The Essay then surveys various descriptions of the practice of constitutional construction and argues that, although differing with each other, they all tend to leave an ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that the constitutional text is incomplete in that it fails to provide a decision-rule for many—indeed for most—constitutional disputes so that constitutional construction is a practical necessity. The Constitution would indeed be incomplete if interpreted according to the “new” or “public meaning” version of originalism. At least in the context of constitutional adjudication, however, originalist interpretation that seeks to identify that meaning of the Constitution actually intended by the people whose assent made it law leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side’s interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete.

05/16/2016

A Response to Eric Posner on the Supposed Demise of Originalism
Jeremy Christiansen

[Editor's note:  For this guest post, we welcome Jeremy M. Christiansen, a 2014 graduate of the S.J. Quinney College of Law at the University of Utah and aspiring academic who writes and publishes on state constitutional law and originalism (see here and here).]

Justice Antonin Scalia’s death was all too real.  But the rumors of originalism’s impending demise are greatly exaggerated.

Eric Posner has asserted that “originalism will fade” in the wake of Justice Scalia’s untimely death until conservatives are then left to search for a new unifying theory.  Professors Jack Balkin, Ilya Somin, and Larry Solum, have, in my estimation, offered persuasive critiques of Posner’s prediction.  But I write to briefly offer another.  Posner claims that “[t]he audience for originalist scholarship . . . consists entirely of nine people.” (Emphasis his).  He bolsters this conclusion by observing that “[n]ot even the lower courts care about originalism.”  Posner is simply wrong on this point, and I think he is wrong in a way that undermines his overall assessment about originalism’s likely vitality.

True enough, the Federal Courts of Appeals rarely are even able to engage in originalist inquiries on account of being hemmed in by binding circuit and Supreme Court precedent.  It is the rare case, like Noel Canning, for instance, where the courts of appeals get to try their hand at it.  But Posner’s prognostication is undermined significantly by the numerous lower courts that routinely engage in originalism: state supreme courts interpreting their state constitutions.  These courts decide numerous issues across the country each year that are largely beyond the reach of federal courts (be it because the state court interprets a provision with no federal analogue or because of Michigan v. Long).  So I would say that any account of “originalism” or any predictions about it are entirely incomplete without a survey of state constitutional interpretation.

State constitutions are very similar to statutes.  Posner has recognized as much (shoot for pages 1600 to 1601).  And state courts treat their statutes and their constitutions quite similarly.  State courts frequently invoke “canons” of constitutional interpretation like expressio unius, esjusdum generis, the plain meaning rule, the harmonizing canon, and the independent meaning canon.  In statutory interpretation, all fifty state courts of last resort have frequently espoused an originalist (as opposed to a William Eskridge-esque “dynamic”) methodology, like in Alabama where “[t]he cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute.”  Perhaps it should come as no surprise, then, given these similarities that every state court of last resort uses originalism in interpreting their respective state constitutions.  In a forthcoming article on the original meaning of state constitutional search and seizure provisions, I note the extensive invocation of originalist “maxims” of constitutional interpretation.  Here are just a few of the numerous examples, drawn from states that are politically and geographically diverse:

 Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987) (“When construing the Constitution of Alabama, the primary purpose of this court is to ascertain and then effectuate the framers' intent.”); Cain v. Horne, 202 P.3d 1178, 1181 (Ariz. 2009) (“In interpreting a[n Arizona] constitutional provision, our primary purpose is to effectuate the intent of those who framed the provision.”) (internal quotation marks omitted); Steinhart v. Cty. of Los Angeles, 223 P.3d 57, 71 (Cal. 2010) (“[O]ur task is to effectuate the voters’ intent in adopting article XIII A . . . .  The words used in a [constitutional provision] must be taken in the ordinary and common acceptation, because they are presumed to have been so understood by the framers and by the people who adopted the provision.”) (second alteration in original) (internal quotation marks omitted); People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1238 (Colo. 2003) (en banc) (“In construing our constitution, our primary task is to give effect to the framers’ intent.”); Crist v. Florida Ass’n of Criminal Def. Lawyers, Inc., 978 So. 2d 134, 140 (Fla. 2008) (“[T]his Court endeavors to construe a constitutional provision consistent with the intent of the framers and the voters.”) (internal quotation marks omitted); State ex rel. Louie v. Hawai‘i Gov't Emps. Ass’n, AFSCME Local No. 152, AFL-CIO, 328 P.3d 394, 422 (Haw. 2014) (“[W]hen faced with a constitutional question, it is the duty of the court to ascertain and declare the intent of the framers of the Constitution . . . .”) (internal quotation marks omitted); People v. Fitzpatrick, 986 N.E.2d 1163, 1169 (Ill. 2013) (“[W]e look only to the intent of the drafters, the delegates, and the voters in adopting the Illinois Constitution . . . .”); Bonner ex rel. Bonner v. Daniels, 907 N.E.2d 516, 519 (Ind. 2009) (“Interpreting our Constitution involves a search for the common understanding of both those who framed it and those who ratified it.”); State Bd. of Elections v. Snyder ex rel. Snyder, 76 A.3d 1110, 1123 (Md. 2013) (“Our task in matters requiring constitutional interpretation is to discern and then give effect to the intent of the instrument’s drafters and the public that adopted it.”); Michigan Dep’t of Transp. v. Tomkins, 749 N.W.2d 716, 721 (Mich. 2008) (“When interpreting our state constitution, this Court seeks the original meaning of the text to the ratifiers, the people, at the time of ratification.”); Stranahan v. Fred Meyer, Inc., 11 P.3d 228, 237 (Or. 2000) (“[W]hen construing provisions of the Oregon Constitution, it long has been the practice of this court to ascertain and give effect to the intent of the framers [of the provision at issue] and of the people who adopted it.”); Commonwealth v. Rose, 81 A.3d 123, 127 (Pa. 2013) (“Simply put, under long standing and established principles, we are required to examine the original public meaning of the text at issue, giving due regard to both its spirit and the intent of the framers of the clause.”); Riley v. R.I. Dep’t of Envtl. Mgmt., 941 A.2d 198, 205 (R.I. 2008) (“In construing provisions of the Rhode Island Constitution, our chief purpose is to give effect to the intent of the framers . . . .  The historical context is important in determining the scope of constitutional limitations because ‘a page of history is worth a volume of logic.’  . . .   Therefore, this Court properly consults extrinsic sources including the history of the times and examine[s] the state of affairs as they existed when the constitution was framed and adopted.”) (internal quotation marks omitted); League of Educ. Voters v. State, 295 P.3d 743, 749 (Wash. 2013) (“The court gives the words ‘their common and ordinary meaning, as determined at the time they were drafted.’  The court may look to the constitutional history for context if there is ambiguity.  In this particular case, the historical context necessarily includes other provisions adopted contemporaneously with article II, section 22.”); Dairyland Greyhound Park, Inc. v. Doyle, 719 N.W.2d 408, 421-22 (Wis. 2006) (“The purpose of construing a constitutional amendment is to give effect to the intent of the framers and of the people who adopted it.”).

I do not want to overstate my case, as I fear Posner has done.  Originalism is not the sole method of interpretation in state constitutional law.  It would be shocking (yet wonderful) if it were.  But it is clearly a big-time player.  And one can quibble with whether theses courts did it right, whether they err in sometimes going after “intent” versus original public meaning, etc.  But none of that distracts from my main point: Whether Posner wants to admit it or not, originalism is an entrenched part of the legal, social, and academic landscape—at both the federal and state levels—thanks in large measure to the efforts of people like Justice Scalia.  In light of the substantial use of originalism in state courts of last resort, any claim that originalism is disappearing anytime soon is, as others have pointed out, extraordinarily hasty.

 

The Constitution and the Garland Nomination (Again)
Michael Ramsey

At The Atlantic, a streamlined version of my appointments clause argument: Why the Senate Doesn't Have to Act on Merrick Garland's Nomination.  (See also here).

05/15/2016

Michael Stokes Paulsen: Checking the Court
Michael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted Checking the Court (NYU Journal of Law & Liberty 18 (2016)) on SSRN.  Here is the abstract:      

What can the political branches of national and state governments legitimately and constitutionally do when, in their good faith judgment, the Supreme Court has careened out of control and exercised not legal judgment, but lawless will? What legitimate “checks” exist, and can appropriately exercised, against willful abuse of the judicial power? 

This article explores the full array of possible constitutional checks on the federal judicial power, analyzing their legal validity and practical usefulness. They are, in ascending order of constitutional difficulty – and also of effective power, if constitutionally valid – as follows: (1) full substantive ideological review at the appointment and confirmation stage of a judicial candidate’s judicial philosophy, including the posing of “litmus test” questions; (2) control over the Supreme Court’s appellate jurisdiction through aggressive use of the Exceptions Clause power (“jurisdiction stripping”); (3) manipulation of the size of the Supreme Court (both “Court packing” and Court “unpacking”); (4) impeachment of judges and justices for believed abuse of judicial power, violation of the judicial oath, and violation of the Constitution; (5) legislation prescribing correct substantive and methodological “rules of decision” governing the judiciary’s interpretation and application of federal law of all types and abrogating the judicial policy of (occasional) stare decisis with respect to precedent decisions departing from such rules; and (6) presidential (and perhaps state and lower court) non-execution of judicial decisions inconsistent with the objective original meaning of the Constitution or other federal law. 

Which of these purported checks might be constitutionally valid? Which ones are likely to be effective? What is the proper occasion for the exercise of these stronger and weaker devices for “Checking the Court”?

05/14/2016

Saikrishna Prakash & John Yoo: People ≠ Legislature
Michael Ramsey

Saikrishna Prakash (University of Virginia School of Law) & John Yoo (University of California at Berkeley School of Law; American Enterprise Institute) have posted People ≠ Legislature (Harvard Journal of Law and Public Policy, Vol. 39, No. 2, 2016) on SSRN.  Here is the abstract:      

Article I, Section 4 of the U.S. Constitution vests the regulation of congressional elections in “each State by the Legislature thereof.” In Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015), the Supreme Court held that the Constitution’s Elections Clause does not refer solely to an institution, distinct from the people, with the power to make laws — what common sense typically might consider a “Legislature.” Instead, the Court concluded that the Framers used “Legislature” to refer to any entity authorized to make laws, such as the people through popular initiative.

We argue that the Court has misread the text, structure, and history of the Elections Clause. A “Legislature” is an entity that makes law. But not every entity that makes laws is a legislature. When a dictator makes laws unilaterally, he or she is not a legislature. Similarly, when the people make laws, be they statutes or constitutions, they are not a legislature. Given the Clause’s actual wording, moreover, the Court should have read Article I, Section 4 to give effect not only to “State” but to “Legislature” as well. A commonly accepted rule of interpretation strongly suggests that every word in the Constitution be given meaning. Reading “Legislature” to refer only to state assemblies, and not to the peoples of the states, more cleanly fits within the structure of Article I, Section 4. It also makes better sense of the use of the word “Legislature” in other parts of the Constitution. Reading the Elections Clause as empowering only state assemblies comports best with the surrounding history of the Framing and Ratification of the Constitution.

Plainly correct. in my view.

UPDATE:  In the same issue of the Harvard Journal of Law and Public Policy, Derek Muller (Pepperdine) takes on one-person-0ne-vote: Perpetuating 'One Person One Vote' Errors. From the introduction:

“One person, one vote” has no plausible basis in the text or original meaning of the Fourteenth Amendment of the United States Constitution.  More than fifty years after Baker v. Carr, however, this mantra remains essentially inviolable. ...

...

This Article examines an under-discussed element of the reapportionment cases—the extent to which the parties themselves and the clerks to the Supreme Court Justices resisted advancing the kind of sweeping claims that the Supreme Court ultimately embraced. The Court’s errors in the redistricting cases of people arose in spite of repeated guidance from the litigants before the Court and the Justices’ own clerks to decide the cases in a narrower fashion or pursuant to existing constitutional standards. Through archival research, this Article demonstrates that all parties were reluctant to redefine all state legislatures under a single (and under-theorized) political definition. The Court took little heed of such modest proposals and instituted sweeping claims about how state legislatures ought to look. The Article then identifies the circumstances in which the Court finally embraced restraint—it permitted States to choose an appropriate population basis for drawing legislative districts, leaving the matter to the sound discretion of the States. The Article identifies a lost footnote in an early draft of Burns v. Richardson that would have articulated the most lucid basis for deferring to the States as they selected the appropriate redistricting population. The Article then reflects on the proposed expansion of these sweeping claims in Evenwel v. Abbott, an attempt to return to the judicial nationalization of state legislatures articulated in Baker and its progeny. The Article calls for an end to these redistricting errors and for greater deference to the States.