The Originalism Blog

Andrew Hyman on David Upham on Interracial MarriageMichael Ramsey

Regarding this post, Andrew Hyman comments:

There is much silence in Professor Upham's blog post about the Equal Protection Clause, which I think fully supports the decision in Loving [v. Virginia]. In contrast, I don’t think the Privileges or Immunities Clause supports that decision.

A right cannot plausibly be among the privileges or immunities of citizens of the United States if it is located nowhere else in the Constitution, and places no limit on Congress. This is not only plain from the text of the PI Clause, but was also the unanimous consensus in Dred Scott. Taney wrote: “The powers of the [federal] Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself.” Curtis wrote: “[T]he privileges and immunities of general citizenship, derived from and guaranteed by the Constitution, are to be enjoyed by….citizens of the United States.”

Those who want to interpret the PI Clause as a guarantee of unenumerated rights can find some support in the historical record, but it is relatively meager. And not incidentally it hands to liberal judicial activists an extremely powerful tool for controlling public policy by manufacturing new rights.

The Equal Protection Clause supports the Loving decision by its terms. A statute that was largely designed to place a mark of inferiority on mixed-race children was the essence of what the EP Clause was designed to prevent.

I tend to agree that the Equal Protection Clause is the most plausible source of marriage rights, but on the other hand couldn't one say marriage was a traditional privilege accorded generally to citizens by the states, so by the terms of the PI clause a state couldn't deny it to a subset of citizens (at least, without a good reason)?

Update: Andrew Hyman replies:

I would answer "yes" if the PI Clause instead said that no state can abridge the traditional "privileges or immunities of state citizenship."  But instead the clause refers clearly to "the privileges of immunities of citizens of the United States."  How can something be a privilege or immunity of citizens of the United States if it does not restrain Congress?  As far as I know, folks like Processor Upham have not suggested that there's anything in the Constitution that requires Congress to allow official marriages and marriage licenses in the District of Columbia, for example.  So, I have to answer "no" to your question.

Additionally, both Taney and Curtis very precisely distinguished constitutional rights rather than other (e.g. statutory) rights, as comprising the privileges and immunities of federal citizenship.  The Fourteenth Amendment overturned Dred Scott, so why wouldn't the authors of that amendment have used the terminology that was used in that case without dissent?

Daniel Smyth on the Origination ClauseMichael Ramsey

At American Thinker, Daniel Smyth (LibertyBlog.org) expands on his prior argument that the Affordable Care Act violates the origination clause, with particular focus on Jefferson's Manual of Parliamentary Practice.  As he notes:

A U.S. district court could soon decide if the Pacific Legal Foundation's (PLF) case against ObamaCare will continue in the U.S. court system. PLF alleges that ObamaCare is unconstitutional because it violates the Origination Clause, which reads, "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills."

For previous discussions on this blog, see here, here, here and here.

Also, from a while back, here is a post by PLF's Timothy Sandefur on the litigation: Will the courts enforce the Origination Clause against Obamacare?

Geoffrey Stone on Originalism and HomosexualityMichael Ramsey

At Huffington Post, Geoffrey R. Stone (Chicago): Justice Scalia, "Originalism" and Homosexuality.  Key excerpts:

... At time the Fourteenth Amendment was enacted people considered sodomy in the same way they considered robbery, burglary or murder. It was a bad thing, and if people chose to do it they should be punished.

Moreover, at that time there was no concept of the "homosexual" as a type of person with a particular sexual orientation. The concept of the homosexual as we now understand the concept did not come into being until long after the Fourteenth Amendment was adopted, at the end of the nineteenth century. Indeed, despite what Justice Scalia seems to think, the word "homosexuality" did not even exist until the late nineteenth century.

It was only then that physicians and psychologists began for the first time to recognize that some people, termed "homosexuals," had a deeply-rooted sexual orientation that led them to be attracted to persons of the same sex. ...

The same reasoning and the same conception of "orignalism" that leads Justice Scalia rightly to conclude that the Framers' ignorance of cell phones and the Internet does not resolve questions about the meaning of "the freedom of speech" should also lead him to the conclusion that the Framers' ignorance about the nature of sexual orientation does not resolve fundamental questions about the meaning of "the equal protection of the laws."

The argument sounds kind of familiar.  (No link to us though.  Or to Grant Darwin).

(Via How Appealing).

New Blog on Executive Branch Regulatory ActivitiesMichael Ramsey

From the Federalist Society:

The Federalist Society Practice Groups are pleased to announce the launch of the Executive Branch Review Project.

Please visit our new blog

http://www.executivebranchproject.com/

About ExecutiveBranchProject.com: 

An increase in Federal executive branch regulatory activity - whether through executive order, formal or informal administrative agency action - has been noted by many across the country. In launching Executive Branch Review, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide an objective resource that identifies major government activity, and provides a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach.

Please visit http://www.executivebranchproject.com/, bookmark the page, and plan to return often to learn more about the activities of the Executive Branch as they unfold.  Also, please do comment on the posts you will find there.  The blog, Executive Branch Review, is a forum for debate, a debate that we hope you will join.  

A Question on Polygamy and Same Sex Marriage (Now Updated with an Answer)Michael Ramsey

In this post, I argued that an originalist case for a constitutional right to same-sex marriage would not imply a constitutional right to polygamy.  Nelson Lund emails:

How does your argument for same-sex marriage not also support polygamy for bisexuals?

UPDATE: Here is my tentative answer --

A difficulty in writing about the Fourteenth Amendment from an originalist perspective is that we have little definite understanding of even basic principles.  Therefore, one must proceed on the basis of various assumptions to get anywhere in answering specific questions.

So here I'll assume that current equal protection doctrine regarding disparate impact claims, as established in Washington v. Davis (1976), reflects the original meaning.  That is, a government policy that is not targeted at or based on animus against a protected group, but nonetheless affects that group disproportionately, is generally constitutional.

If that's right, then a general prohibition of polygamous marriage should be constitutional, even if it disproportionately affects bisexuals.  Since polygamous marriage is regularly engaged in by non-bisexuals (or at least, it would be if legal), there's no reason to think that the prohibition has anything to do with bisexuality.  As a result, under Washington v. Davis, the prohibition is constitutional as long as there is a plausible government interest in support (which I assume could be established).

In contrast, same-sex marriage is uniquely linked to same-sex sexual orientation.  If same-sex sexual orientation is a protected class, a ban on same-sex marriage (or other same-sex sexual activity) can't be defended under Washington v. Davis.

At least, that's my answer for now.

The Problematic Chevron DoctrineMike Rappaport

In my earlier post, I discussed how the Supreme Court's failure to enforce the nondelegation doctrine has allowed legislative and executive power to be combined.  Here I want to discuss another way in which the Supreme Court has not merely allowed legislative and executive power to be combined, but has actually encouraged the process; and done so probably against Congress's will.

Under the Chevron doctrine, the Courts permit administrative agencies to adopt any reasonable interpretation of a statute that the agency administers.  (This is a simpler formulation than the Court normally gives, but it is accurate and will do for this post.)  The doctrine provides the agencies of the executive branch with more power over the implementation of the laws than they would otherwise have.  The agencies are given authority to choose any reasonable interpretation of the statute that they desire.  Thus, more policymaking discretion is given to the agencies.  The agencies therefore enjoy more legislative power in that they get to decide the meaning of the legislation that Congress enacted.  (Another way to view the doctrine is that it confers judicial power on the agencies.  While I don't pursue that view here, that is hardly better.)

Significantly, the Chevron doctrine is not a command of the Congress.  The Court has largely made the whole thing up, so that agencies receive more of a delegation than Congress appears to have intended.  If the Congress had actually delegated the authority to the agencies, then the Court could at least claim to be following Congress’s will.  (For those who doubt my claim that Congress did not delegate this power, see my next post.)

Happily, the Supreme Court has been willing to cut back a bit on Chevron deference in recent years.  The Christenson-Mead doctrine has held that the agencies are normally entitled to Chevron deference when exercising informal rulemaking and formal adjudication, but not when exercising many types of agency action.  Unfortunately, this doctrine has introduced significant uncertainty into the law.

Justice Scalia has been the strongest advocate of Chevron deference on the Court.  Unfortunately, his position is extremely problematic, both generally and from the textualist perspective that the Justice so often champions.  I will explain why in my next post on the subject.

David Upham: Same-Sex Unions, Assumed Historical Facts, and Interracial MarriageMichael Ramsey

At Liberty Law blog, David Upham: Same-Sex Unions, Assumed Historical Facts, and Interracial Marriage.  From the introduction: 

At oral argument in Hollingsworth v. Perry, Justice Scalia challenged Theodore Olson as to when it became “unconstitutional to exclude homosexual couples from marriage?” Olson replied first with what he called a “rhetorical question,” viz., “When did it become unconstitutional to prohibit interracial marriages?”  For Olson, the answer was clearly not 1868—the date of the Fourteenth Amendment’s ratification.  Rather, he explained, in nullifying racial-endogamy laws, the Court in Loving v. Virginia (1967) had ventured into “unchartered waters” with reliance on “evolutionary” jurisprudence as a compass.

In making this claim, Olson is in good (and numerous) company.  Prominent jurists have repeatedly declared the Court’s decision in Loving v. Virginia to be incompatible with the original sense of the Amendment.  The judges include Justice Kennedy and his colleagues in Planned Parenthood v. Casey; Judge Reinhardt and the Ninth Circuit in Washington v. Glucksburg; numerous progressive scholars, including Jack Balkin, Michael Klarman, and William Eskridge; and even some prominent conservatives like Steven Calabresi and Hadley Arkes (on this blog).

But this belief, as Lincoln would say, represents one of those “assumed historical facts which are not really true.” The claim rests on three historical proofs, two of which the Court rightly rejected in Loving, and each of which is specious.

Plus: bonus picture of Mildred and Richard Loving.

(Note: Professor Upham expands the argument in this important article).

A Question on Polygamy and Same Sex MarriageMichael Ramsey

In this post, I argued that an originalist case for a constitutional right to same-sex marriage would not imply a constitutional right to polygamy.  Nelson Lund emails:

How does your argument for same-sex marriage not also support polygamy for bisexuals?

(Answer here shortly -- as soon as I think of one).

Originalism and judicial competenceChris Green

Interesting exchange this morning between Josh Blackman and Paul Horwitz over whether originalism compels judges to decide questions about which they are incompetent. Josh compares historical-meaning questions to biochemistry, and Paul responds that there are methods of deferring to experts in the biochemistry case but not that of original meaning. I pipe in on Paul's thread with a shameless plug of my new article.

More on Separating Legislative and Executive PowerMike Rappaport

I should have noted that the proposal I discussed in my earlier post actually has been promoted in the form of the REINS Act, which stands for Regulations From the Executive in Need of Scrutiny Act.

Jonathan Adler has a post and article on the subject, where he notes his debate with Jonathan Siegel.

Jonathan discusses both constitutional and policy issues concerning the proposed legislation.  While I welcome the efforts in favor of the legislation, I don't think it has much chance of being enacted.  Not only is it opposed by people who favor regulation, it will also be opposed by members of Congress who do not want to be held accountable.

If one favors cutting back on regulation, a more promising approach is to institute some additional check on agencies, such as cost benefit regulation subject to judicial review or outside fact finding by advisory boards.  Members of Congress will not have the same institutional interest against such proposals.  Notice, however, that the principal focus of these proposals is to cut back regulation rather than separating legislative and executive power (although a cost benefit standard would put some additional checks on executive policy-making discretion and therefore would limit legislative power).

(Cross posted at the Liberty Law Blog)