Nelson v. Colorado and Some Tricky Aspects of an Easy Case
Michael Ramsey

Nelson v. Colorado, argued to the Supreme Court last week, seems like it should be an easy case.  In brief oversimplification: in Colorado, certain criminal offenses require payment of money (fines, costs, etc.) to the state upon conviction -- but if the conviction is overturned on appeal and the charges are ultimately dropped, the money is not automatically refunded.  Instead, to get a refund, former defendants must bring a separate claim in which they must show that they were actually innocent of the charge.  Petitioners in this case are former defendants facing that situation.

That looks like a deprivation of property without due process -- the state keeps the money, even without a valid conviction, unless the former defendant can make a showing much more difficult than simply defending against a criminal charge.  Further, Nelson's attorney -- UCLA law professor Stuart Banner, channeling Justice Scalia -- demonstrated without much counterargument that this sort of procedure doesn't have any traditional foundation in Anglo-American law (and only exists in Colorado).

But I have been studying Justice Scalia's opinions closely for an article I am writing, and I think it's a little more complicated.  Scalia's view of the correct originalist approach to individual rights, including due process, depended on whether the challenged government action had a traditional foundation.  If it did, he thought that was essentially conclusive as to its constitutionality (unless the constitutional text was unambiguous).  If the challenged procedure did not have a traditional foundation, then his course was less clear.  Sometimes he thought he lack of traditional foundation was very strong evidence against the practice's constitutionality, but other times he was less sure.  He pointed out that the mere fact that a practice wasn't employed at the time the Constitution was adopted does not mean people at the time thought it was unconstitutional. They might have only thought it unwise, or perhaps it did not occur to them to use it.

That seems right as a general matter -- that is, non-use alone isn't enough to show unconstitutionality in the case of an ambiguous provision.  We don't expect the Constitution to freeze practices (especially procedural practices) in exactly the form they existed at the time of enactment.  But we (originalists, at least) do expect the Constitution to freeze some practices in the form they exist to prevent the erosion of rights supposedly protected against the development of new invasive practices.  The question has to be some form of asking whether the new practice strikes at the core of the right that the constitutional provision was understood to protect.

One way to approach the problem is to see if the challenged government practice is the kind that the enactors specifically understood the constitutional protect to address.  (E.g., the due process clause prevents executive detention without authority of law).  But often new practices are not within the enactors' specific contemplation because they are new -- and the question becomes somewhat more hypothetical.

So in Nelson, I don't think it's enough to say Colorado's approach has no historical foundation.  We need some kind of argument that it is the sort of practice against which the due process clause was understood to protect.

I think the case can be made that it is.  The background assumption, reflected in both the due process clause and the takings clause, was an individual right to private property.  Government could deprive individuals of their private property in various ways -- e.g., through fines after conviction, by the government paying compensation, by forfeiture -- but the government had to act within one of these traditional categories.  The executive (or the judiciary) could not simply seize private property (even if purportedly authorized by the legislature) -- there had to be "due" process, which in property cases meant one of the traditional forms of transferring private property to the the government.  If new forms of seizure could be invented and declared "due" by later courts, then the constitutional protection for property would be ineffectual.

In Nelson, the state's only possible argument for acting through one of the traditional forms of seizing property is the levying of fines and related penalties after a criminal conviction.  But this form of seizure depends on a lawful conviction, which Colorado does not have in this case.  Colorado is in effect circumventing the legal process by keeping the fines paid, even without a conviction.  The fact that a statute authorizes this procedure is no answer: otherwise, the legislature could pass a law allowing fines to be collected upon arrest, with no criminal prosecution at all.  The reason it can't do this is not just because it was not done at the time of the Constitution's enactment, but because the due process clause was specifically understood at the time of enactment to prevent this from happening by requiring property seizure to occur in only certain traditional categories of circumstances.

Thus my very short version of Nelson is this:  The Constitution has long been understood to prevent government seizure of private property except within certain traditional categories and processes.  Colorado's only justification for seizure here is that defendants were lawfully convicted and thus must pay statutorily authorized penalties.  That would indeed be a justification, if the defendant's convictions were lawful.  But they were not, because they were reversed on appeal and no new convictions were obtained.   Thus Colorado is wrongfully retaining defendants' property, and it cannot create burdensome procedures to prevent defendants from obtaining a refund.

And so it's an easy case after all.  (As I assume the Court will conclude, based on the tough questions Colorado encountered at oral argument [transcript here; argument analysis from Steve Vladeck here] -- and the fact that there seems no good reason for the Court to hear this case other than to reverse it).


Timothy Sandefur: Comments on Tara Smith's "Judicial Review in an Objective Legal System"
Michael Ramsey

Timothy Sandefur (Goldwater Institute) has posted Comments on Tara Smith's Judicial Review in an Objective Legal System on SSRN.  Here is the abstract:    

These comments on Tara Smith's book "Judicial Review in An Objective Legal System" [ed.: available here] were prepared for a panel at the American Philosophical Association's Ayn Rand Society. They challenge the interaction between political values and linguistic meaning in Smith's theory, asks whether objectivity does a better job than original meaning in understanding constitutional clauses like the Commerce Clause, and asks whether there is anything wrong in regarding a judge as engaged in a creative act.

There's a lot more to this paper than the abstract may suggest, as it thoughtfully explores a number of issues relating to originalism and the meaning of laws.  Very much worth a read.


Constitutional Truthmakers & A Defense of the Loyal Denominator
Chris Green

I've just posted two new papers and a revision of an old one to SSRN. The new ones are Constitutional Truthmakers and Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications. The old one is Loyal Denominatorism and the Fourteenth Amendment: Contemporary Debate and Reconstruction History. The abstracts are long, so I'll put them after the jump.

Continue reading "Constitutional Truthmakers & A Defense of the Loyal Denominator
Chris Green" »

Gary Lawson: Did Justice Scalia Have a Theory of Interpretation? [updated]
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Did Justice Scalia Have a Theory of Interpretation? (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:      

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation – the ascertainment of textual meaning – and adjudication – the determination of real-world cases – is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however, to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication.

This is for an upcoming symposium on Justice Scalia, for which I'll also have a contribution (but Professor Lawson is way ahead of me, as usual).

UPDATE:  At Legal Theory Blog, Larry Solum comments:

Highly recommended.  Lawson focuses on principles of admissibility and significance, but one might think that such principles flow from a theory of interpretation and do not constitute such a theory.  My own view is that a theory of "interpretation" (in the sense specified by the interpretation-construction distinction) must provide an account of the the nature of meaning (or communicative content).  Once we have such a theory, it may or may not give rise to "principles of admissibility" or "principles of significance."


More on the Supreme Court Nomination
Michael Ramsey

At The Hill, Alexander Bolton reports: Conservatives press Trump on Supreme Court pick.  It begins:

Influential conservatives are pressing President-elect Donald Trump to nominate Bill Pryor, a judge feared and disdained by liberals but loved by conservatives because of his “titanium spine,” to the Supreme Court.

Pryor is said to be on Trump’s short list to replace the legendary conservative Justice Antonin Scalia, who died almost a year ago.

Trump told reporters Wednesday that he will announce his nominee within two weeks of taking the oath of office on Jan. 20.

Conservatives want an intellectual heavyweight to fill Scalia’s shoes and fulfill Trump’s promise made during last year’s campaign to nominate a justice “in the mold of Scalia.”


“[Conservatives] want to get a judge who is going to follow the Constitution according to its text, structure and original public meaning,” said [John] Malcolm [director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation] who prepared a list of judicial recommendations for Trump on behalf of the Heritage Foundation.


Malcolm and Leonard Leo, the executive vice president of the Federalist Society, are among the two most influential outside voices advising the Trump transition team on whom to pick for the court.

(Via How Appealing).  Also, at Above the Law, David Lat reports that President-Elect Trump interviewed Judge Pryor on Saturday.

At SCOTUSblog, profiles of the leading candidates, including Judge Pryor plus judges Gorsuch, Colloton and Gruender.

On Gorsuch, the profile comments:

He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.


American Journal of Legal History Forum on the Second Amendment
Michael Ramsey

In the December 2016 issue of the American Journal of Legal History (vol. 56, issue 4), a forum on the Second Amendment.  The contributions are:

Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism, by Douglas Walker, Jr. (Ph.D. candidate, Michigan State, political science). 

Response to “Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism” by William G. Merkel (Charleston) [ed.: a pretty harsh response]

Rethinking Originalism: Bearing Arms and Armed Resistance in Pennsylvania, by Nathan R. Kozuskanich (Nipissing University)

(Via Alfred Brophy at The Faculty Lounge).


William Baude: Is Qualified Immunity Unlawful?
Michael Ramsey

William Baude (University of Chicago Law School) has posted Is Qualified Immunity Unlawful? on SSRN.  Here is the abstract:

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.

But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.

(Via Volokh Conspiracy, where Professor Baude has further thoughts.)


Trump's Emoluments Opinion as an Ideological Statement
Michael Ramsey

On further reflection, I think the Trump legal team's statement on the foreign emoluments issue is even more remarkable than I first thought.  As noted (via Josh Blackman), the statement opens its discussion of the foreign emoluments issue by declaring:

The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text. [Citing Scalia & Garner, Reading Law and Scalia, Originalism: The Lesser Evil].  Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a “present, Emolument, Office, or Title.” 

This would not be a surprising passage in an article written by an originalist scholar (although I, for example, have never made so strong a claim -- note that it says "is" rather than "should be").  This statement, however, is written by lawyers with the purpose to persuade a wide range of readers.  Lawyers, unlike law professors, commentators and (some) judges, typically do not bind themselves into one particular mode of interpretation.  Rather, to the extent possible, they argue the full range of Philip Bobbitt's "modalities" of constitutional interpretation, including but not limited to original meaning.  If a lawyer omits one of the modalities, it's probably because there's no plausible argument there.

Here, however, we have what I can only describe as an ideological statement (I mean that in a descriptive and not negative way).  It picks a side in the debate over methods of constitutional interpretation.  Moreover, it picks a contested side, and one likely to be especially unpersuasive to the President-elect's principal critics (such as Laurence Tribe).  It does not need to do that to make its case, and its not clear its case is helped by taking such an approach.

I conclude, therefore, that the statement has a purpose beyond merely persuading readers on the emoluments issue.  Its purpose is to persuade readers that originalism is the correct way to resolve the issue, or at least to show that the Trump administration believes that it is.  Since taking such a strong position is not necessary to resolving the emoluments issue, the point of the statement must be more than the narrow question of emoluments.

Thus the effect (and, I think, the purpose) is to associate Trump with originalism (and, specifically, with Justice Scalia).  It's an attempt to influence the legal culture (what Larry Solum calls the "gestalt" of  constitutional interpretation) in the direction of originalism.

I'm not sure why they would take this course (although I think it suggests that they are not too worried about the emoluments issue in itself, instead viewing it as an opportunity to make a broader point).  It may be laying the groundwork for the pending Supreme Court nomination, or perhaps it's just a nod to conservative supporters.  Or perhaps it is the first step in a future campaign to materially move the legal culture in an originalist direction.


Josh Blackman on Trump on Emoluments
Michael Ramsey

Josh Blackman notes that President-Elect Trump's lawyers have released an extensive analysis of the emoluments clause issue.  The short version is that they accept that the clause is applicable to the President but deny that "emolument" includes ordinary business dealings.  It is expressly originalist (and Scalian) in its foundation:

The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text. [Citing Scalia & Garner, Reading Law and Scalia, Originalism: The Lesser Evil].  Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a “present, Emolument, Office, or Title.” 

Professor Blackman has much more extensive discussion, including some methodological reservations.

I have an additional quibble: the letter begins, "From President Washington to Vice President Rockefeller to President-Elect Trump, many of this Nation’s leaders have been extraordinarily successful businessmen."  I yield to no one in my admiration for George Washington, and I agree he was a businessman, but I think it perhaps a stretch to call him "extraordinarily successful" in that aspect of his life.

RELATED:  At Volokh Conspiracy, Will Baude: Some misgivings about the Foreign Emoluments Clause arguments.  Among others: 

I’m still not convinced that the president holds an “Office … under [the United States.]”

As I explained in an essay this summer, Seth Barrett Tillman’s scholarship on this question (once I really understood it) has influenced me. Tillman argues that an “Office … under [the United States]” is one created, regularized or defeasible by federal statute and therefore does not include constitutionally elected positions such as the presidency. I think Tillman’s work has shifted the burden of proof on this question to those who think otherwise.

And later:

Even if you are satisfied that Trump is likely to violate one of the emoluments clauses, the arguments are technical, and the answers are not completely obvious. To argue against Trump’s behavior on those grounds is, I fear, to get sucked into a trap where the arguments are unlikely to resonate or accomplish their aims.

FURTHER:  David Weisberg has updated his SSRN article The Foreign Emoluments Clause: Will Pres. Trump Be in Violation by Virtue of Taking the Oath? -- in particular, with a response from Professor Tribe in footnote 11.


An Exchange on Judicial Engagement
Michael Ramsey

At American Greatness, Mark Pulliam criticizes libertarian originalism: Libertarian Judicial Activism Isn’t What the Courts Need.  From the introduction:

Were the Founding Fathers anarchists? Did the ideas contained in John Stuart Mill’s On Liberty, published in 1859, somehow inspire the delegates to the Constitutional Convention in 1787? Does the Constitution contemplate Robert Nozick’s minimal state, presaging his 1974 magnum opus Anarchy, State, and Utopia?

These may seem like facetious questions, but libertarian legal scholars have devised a novel theory that the Constitution, properly understood, protects a person’s “right to do those acts which do not harm others.” They contend that this sweeping right to personal liberty is enforceable against the federal government and the states. Moreover, within the three branches of government, it is only judges who get to decide whether a particular law is justified constitutionally. Incredibly, libertarian legal scholars are urging President-elect Trump to appoint an adherent of this fanciful theory to replace Justice Antonin Scalia on the U.S. Supreme Court.

Roger Pilon responds at Cato at Liberty: Coming to Mr. Trump’s Aid in the Matter of Judicial Selection.  He concludes:

We come, then, to the heart of the matter. If both enumerated and unenumerated rights are among our privileges or immunities as citizens of the United States, as those who drafted and ratified the Fourteenth Amendment believed, then no state shall abridge them. And further—now we hit Pulliam’s sore spot—it falls ultimately to the courts to enforce those privileges or immunities, all of them—not only the right to speak but the right to an honest calling, the right to buy and use contraceptives (a right “that nowhere appears in the Constitution,” he says), and more, much more.

Thus, it’s our call for “judicial engagement” that most vexes Pulliam—he calls it “a judicially managed state of anarchy.” Fearing “judicial activism,” he would limit judges to enforcing only enumerated rights, the text and underlying theory of the Constitution notwithstanding—and in the name of “originalism,” no less. Well that itself is a form of “activism”—ignoring the law in deference to wide-ranging majoritarian rule inconsistent with that law. At bottom, then, the difference between Pulliam and libertarians is over what the Constitution itself says. Like many conservatives, he has allowed his fear of what he sees as judicial activism to color his reading of the Constitution. Is there judicial activism? Of course there is. But the answer to bad judging is not judicial abdication. It’s better judging. And that starts, and ends, with a careful but correct reading of the Constitution.

For more on the "judicial engagement" debate, see this (from a few months ago) by Evan Bernick: Judicial Engagement and its Discontents: A Modest Proposal for Constitutionalists.  Also this symposium from Cato Unbound, featuring Evan Bernick and three critics.