03/31/2016

Earl Maltz: Originalism, Democratic Theory and the Reapportionment Cases

Earl M. Maltz (Rutgers Law School) has posted Inconvenient Truth: Originalism, Democratic Theory and the Reapportionment Cases (Mississippi Law Journal, forthcoming) on SSRN.  Here is the abstract:   

Critics of originalist theory often argue that in practice, a constitutional jurisprudence based on original meaning would generate unacceptable results. Most often, those who make such claims focus on the decision in Brown v. Board of Education, in which the Court held that state governments could not constitutionally maintain public schools that were segregated by race. In addition, nonoriginalists often cite cases dealing with issues such as gay rights and sex discrimination as examples of socially desirable decisions that could not be justified in originalist terms.

By contrast, Reynolds v. Sims -- the case in which the Court held that representation in state legislatures must be apportioned according to the principle of one person, one vote -- is rarely even mentioned in the debate over the viability of originalism. The idea that representation should be based on population is fundamental to any plausible conception of democratic government. However, although originalists often characterize themselves as champions of democracy, the decision in Reynolds cannot be squared with originalist theory. This article will demonstrate that the reapportionment decisions are inconsistent with the original meaning of the Constitution and discuss the significance of this conclusion for the ongoing debate over constitutional theory more generally.

An interesting and important article.  I agree that the result in Reynolds  appears inconsistent with the original meaning, and that this points up a serious flaw in the original constitution.  I think that "originalists [who] characterize themselves as champions of democracy" are probably not fully considering the issues.

03/30/2016

Robin Bradley Kar & Jason Mazzone: Why President Obama Has the Constitutional Power to Appoint - and Not Just Nominate - a Replacement for Justice Scalia (UPDATED)
Michael Ramsey

Robin Bradley Kar (University of Illinois College of Law) & Jason Mazzone (University of Illinois College of Law) have posted Why President Obama Has the Constitutional Power to Appoint - and Not Just Nominate - a Replacement for Justice Scalia on SSRN.  Here is the abstract:     

After Justice Antonin Scalia’s recent death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators - led by Senate Majority Leader Mitch McConnel[l] - immediately announced that they will not consider or vote on any replacement nominees from the current President. In doing so, they have taken a position that may be constitutionally problematic in ways that have not yet been fully appreciated. Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, this problem requires greater attention.

The crux of the problem is that an outright refusal on the part of the Senate to consider any nominee from President Obama arguably works a delegation of an elected President’s Supreme Court appointment power to an unknown successor. While the Appointments Clause of the Constitution allows Congress to delegate a President's appointment power in certain instances, it does not permit delegation with respect to Supreme Court appointments. Hence this delegation raises a potential problem of separation of powers. Historical practice also cautions against any effort to delegate to a future President the authority to nominate and appointment a member of the Supreme Court. We show that there are 104 cases in which an elected President has faced a vacancy on the Supreme Court and began the appointment process prior to the election of a successor. In all 104 cases, the sitting President was able to both nominate and, with the advice and consent of the Senate, appoint a replacement Justice. We explain why this is a better reading of historical precedent than any limited to consideration of the last 80 years. Hence, constitutional text, structure and history suggest that the Senate Republicans’ current plan not to act at all on any Obama nominee may violate the Constitution. Given this possible constitutional problem, there are also heightened prudential risks to the position Senate Republicans have taken. 

None of this means that the Senate cannot vote against President Obama’s nominees on a wide range of grounds. The Senate also has broad discretion to determine its procedures for vetting a nominee. But the delegation problem identified in this Article provides a significant reason for Republican Senators, sworn to uphold the Constitution, to rethink their current position. They should instead consider and vote upon Garland or any other timely submitted nominee.

This article is a big improvement on prior claims that the Senate is acting improperly, in the sense that it actually offers an argument rather than just an assertion (compare, for example, here).  Unfortunately, though, in my view its argument is thoroughly unpersuasive.

(1) To begin, the word "delegation" is a misnomer.  A delegation is when one person or entity has a power and grants that power to another person or entity (as, most prominently, if Congress delegates legislative power to the President).  Thus it's wrong to say that the Senate action even arguably "works a delegation of an elected President’s Supreme Court appointment power to an unknown successor."  The Senate has no "Supreme Court appointment power" to delegate.  Rather, the claim is that the Senate action transfers (not delegates) the President's appointment power to a successor.

(2) While point #1 might seem like a quibble, it's not.  Once the correct word is used, it should be clear that there is no transfer of power.  President Obama's power is to nominate and, with the Senate's consent, to appoint.  (I'm omitting the "advice" issue here as I've discussed it elsewhere and it does not seem relevant to the Kar/Mazzone argument).  President Obama continues to have that power (as will his successor, if the vacancy is not filled).  No power has been taken away, transferred or granted by the Senate's failure to act.  The only way one could think otherwise is if one thought that the Senate had an obligation to formally consider the nomination in the first place.  But the point of the article is to show that the Senate has an obligation to consider the nomination -- so the entire argument is circular.  If the Senate doesn't have an obligation to act on the nomination (and the text imposes none) then its failure to act on the nomination doesn't transfer (or, obviously, delegate) any power to anyone.

(3) Like many arguments on this point, the article appears to be focused just on Supreme Court nominations.  But as Seth Barrett Tillman has argued, there is only one appointments clause.  There is no textual basis for believing that the Senate's obligations with respect to Supreme Court nominations are different from its obligations with respect to all other presidential nominations.  Yet as the authors surely know, the Senate during the Bush administration refused to formally consider multiple lower court nominations, and the Senate commonly fails to act on executive branch nominations for a variety of reasons.  Perhaps the authors believe these refusals are unconstitutional (but that point should be acknowledged more directly if it is intended).

(4) In any event, the article's final conclusion seems a non sequitur: that the Senate should "consider and vote upon Garland or any other timely submitted nominee" (emphasis added).  Even if the Senate has a duty to consider the nomination (and I cannot see how the text imposes such a duty), surely nothing requires that the duty be fulfilled by a formal vote.  Why can't the Senate informally decide, through its duly elected officers, that the nomination does not need formal consideration?  As Vikram Amar has forcefully argued, the Constitution in multiple places provides that a certain thing is accomplished if a given body consents, and in none of those places do we understand this phrasing to impose a duty to vote on the proposal.  To repeat his argument (because it seems so decisive):

If we look at other constitutional settings in which one entity must consent to the proposal of another actor before the proposal can take legal effect, we have as a general matter not inferred any duty on the part of the second actor to do anything. For example, no credible argument can be made that after the House of Representatives passes a bill and sends it to the Senate for consideration, the Senate must hold hearings and/or take votes. Or that the Senate has a duty to take up a treaty desired by the president. Or that state legislatures have a duty to debate and vote on federal constitutional amendments that Congress proposes (and that require ¾ of the states to ratify before they can take effect). In fact, in one place the Constitution does seem to create a duty on the second actor to make an up-or-down decision; if the president does not return a bill passed by Congress to Congress with reasons for his veto within 10 days, the bill becomes law. So when the Constitution seeks to attach some legal consequences to inaction within a particular timeline, it seems to know how to say so.

Or, as Thomas Sowell argues here, "the 'advice and consent' provision of the Constitution is a restriction on the President's power, not an imposition of a duty on the Senate. It says nothing about the Senate's having a duty to hold hearings, or vote, on any Presidential nominee, whether for the Supreme Court or for any other federal institution. The power to consent is the power to refuse to consent..."

The short of it is that the President has power to appoint if the Senate consents and has no power to appoint if the Senate, for whatever reason and in whatever manner, fails to consent.  The Constitution says nothing more on the matter.

UPDATE:  Seth Barrett Tillman points out that Kar and Mazzone suggest (p. 24):

The only remaining lapsed appointments relate to judges on lower federal courts. Federal judges are not inferior officers and they have Article III protections. These appointments are nevertheless distinguishable from Supreme Court appointments because the Constitution creates the Supreme Court whereas lower federal courts are created by legislative act. Once again, Congress’s greater power to create or extinguish lower courts therefore arguably includes the lesser power to allow the Senate to let certain late appointments to those courts lapse shortly before a presidential transition. However, the Supreme Court remains distinct.

This seems weak on two grounds.  First, if the Senate has a duty to consider and vote on presidential nominees as a result of Article II, Section 2, I do not see how Congress could alter this duty.  The Constitution gives Congress express ability to alter the appointment process in specified ways with respect to some appointments, but this is not one of those ways nor one of those appointments.  No one thinks that Congress has the ability to alter the appointments process for lower federal judges in other respects, merely because Congress can choose not to create lower federal courts in the first place.  In creating lower federal courts (and other offices), Congress necessarily accepts the Constitution's appointments process (else what would be the point of spelling out the appointments process in the Constitution?).  Second, even if Congress has such a power, it hasn't exercised it.  Congress hasn't purported to say anything about how the Senate should approach confirmations.  Perhaps the contrary is "arguabl[e]," as Kar and Mazzone say (if one were, for example, counsel to the Democratic Party), but it seems far from the best interpretation of the relevant clauses.

I also don't see how the Kar/Mazzone argument deals with, for example, Senate consent to treaties (a point Professor Amar raises).  The treatymaking clause is parallel to the appointments clause (apart from the two-thirds requirement).  Congress has no special authority in the area.  Yet the Senate has failed to vote on treaties submitted for its consent by the President, and this has not generally drawn sustained constitutional objection.

I think the Kar/Mazzone paper would be much stronger if they followed it to its logical conclusion, namely that Senate failure to vote on any nominee (or treaty) would be a constitutional violation.  Trying to create an argument tailored only to the issue of current interest makes it look like they are ... trying to create an argument tailored only to the issue of current interest.

A FURTHER THOUGHT: Actually, while the Constitution creates the Supreme Court, Congress creates the ninth seat on the Court.  Just as Congress could constitutionally abolish the lower federal courts, it could constitutionally abolish the ninth seat on the Court.  So if one (implausibly, in my view) thinks that "Congress’s greater power to create or extinguish lower courts therefore arguably includes the lesser power to allow the Senate to let certain late appointments to those courts lapse," that should also be true of the Court's (optional) ninth seat.

03/29/2016

Seth Barrett Tillman on Originalism, Nonoriginalism and Senate Confirmation
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: The Two Discourses: How Non-Originalists Popularize Originalism and What that Means.  The whole post is just brutally awesome, but here is a key part: 

The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public ... non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.

For example, several days ago, some 350 legal academics signed a letter calling for Senate hearings on the Merrick Garland nomination. My understanding is that this letter was circulated by the über-liberal Alliance for Justice. What did the letter say?

The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty.

Letter from Professor William Andreen et al. to Majority Leader Mitch McConnell et al., Re: President Obama’s Nomination of Judge Merrick Garland (Mar. 7, 2016) (emphasis added). Read the list of signers—are any of them originalists, much less originalists of the original intent variety? Perhaps somewhere in that list of 350, there might be a couple. But aren’t the vast majority garden-variety non-originalists? Why did these people sign this letter? Could not they have crafted a letter for the Senate and for the public explaining their position: that Judge Merrick Garland deserves a Senate hearing, and also support their conclusion via a mode of constitutional interpretation that they actually believe? Do any of these people teach their students that constitutional meaning, obligation, and duty are determined by the intent! of the Framers!? (Most originalists stopped teaching this discourse a generation ago: they upgraded from original intent to original public meaning.)

Professor Tillman then specifically notes one non-originalist signer, Dean Chemerinsky of UCI law school, and asks: 

[Might it be that] Chemerinsky signed the letter because he agrees with the result argued for, and because he understands that non-originalist discourse is not favored by the American public he is hoping to convince. In other words, Chemerinsky and his colleagues are unwilling to make the effort to explain to the public that a better mode of constitutional discourse is possible; indeed, the 350 signers hope to convince the American public via a mode of discourse that they themselves reject, without even putting the public on notice that they reject that discourse. No one is stunned by this situation precisely because it is the norm.

RELATED:  Also at New Reform Club, Professor Tillman posts his letter to the Boston Globe responding to the op-ed by Dean Martha Minow (Harvard) and Dean Deanell Tacha (Pepperdine).  It concludes:

... [F]or over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees. 

Why Deans Minow and Tacha would assert otherwise is a mystery.

03/28/2016

The Meaning of the Natural Born Citizen Clause
Einer Elhauge

[Editor's note:  for this guest post we welcome Einer Elhauge, the Carroll and Milton Petrie Professor of Law at Harvard Law School.]

Professor Mike Ramsey has generously invited me to respond to his and Andrew Hyman’s blog posts on my amicus brief explaining why Ted Cruz is not a natural born citizen eligible to be President.  (Or Vice-President, which may be more relevant given how the primaries are going.)

Let me first say that I think the articles by Professors Ramsey and Mary Brigid McManamon are the two most erudite articles so far published on the meaning of the natural born citizen clause.  My conclusions parallel Professor McManamon’s.   I also agree with 99% of Professor Ramsey’s article, but end up surprised when, having marched the reader to the one-yard line, he shrinks from the logical conclusion, like Pete Carroll deciding not to run Marshawn Lynch in from the one-yard line in the Super Bowl.

Professor Ramsey ultimately defends the interpretation that anyone born a citizen is a natural born citizen, even if they are born a citizen only because of a naturalization statute.  But as his article acknowledges, “If anyone born a U.S. citizen is eligible to the presidency, the word ‘natural’ in the eligibility clause seems superfluous. To give it meaning, there should be some ‘born’ citizens who are not ‘natural born.’”  Ramsey at 2.  Yet, surprisingly, his ultimate conclusion is that there are none. 

Professor Ramsey also acknowledges that “in general in eighteenth-century legal language, natural meant the opposite of ‘provided by statute.’ …  The most obvious meaning of ‘natural born Citizen’ thus is not a person who claims citizenship from a statute, but rather a person whose citizenship comes from the natural state of things….  In eighteenth-century legal language ‘natural’ meant arising from the nature of things – a usage reflected, for example, in natural law (as opposed to statutory law) and natural rights (as opposed to statutory rights).”  Id. at 2, 5-6.  Yet, surprisingly, his ultimate conclusion is that a person who gets citizenship at birth only because it is provided by statute is a natural born citizen.

In contrast, my interpretation is consistent with Ramsey’s two textual points because it does give “natural” some meaning that is non-statutory.  Namely, “natural” means a citizenship that arose under the natural law that was recognized at common law, rather than citizenship created by a “naturalization” statute.  At common law, a person was “natural born” only if they were either (1) born in national territory to a parent who was not serving a foreign nation as ambassador or soldier or (2) born abroad to parent who was serving the nation abroad as an ambassador or soldier.  John McCain, Barack Obama, and Marco Rubio were all clearly eligible under this common law standard.  But Ted Cruz falls within neither category and is thus not a natural born citizen.  He was automatically a citizen at birth only because a naturalization statute provides that the foreign-born children of certain U.S. citizens are citizens at birth.

My brief adds many other reasons to think the Framers meant “natural born” to incorporate the meaning at common law rather than under statute:

  1. On citizenship, the Constitution only gives Congress the power of “Naturalization.” To “naturalize” something necessarily means it was not otherwise “natural”.  The suffix “-ize” means “to render, make”.  You cannot sterilize someone who is already sterile, radicalize someone who is already radical, or legalize something that is already legal.  Likewise, you cannot naturalize someone who is already natural.
  2. The Fourteenth Amendment expressly distinguishes citizenship by birth in the U.S. from citizenship by naturalization. The Supreme Court explicitly concluded that persons who become citizens because of statutes “conferring citizenship upon foreign-born children of citizens” are “naturalized,” rather than citizens by birth under the Constitution.  Wong Kim Ark, 169 U.S. at 702-03.
  3. James Madison and early U.S. commentators indicated they understood natural born citizenship to follow its common law meaning.
  4. The Supreme Court stated that natural born citizenship tracks the common law meaning, at 655-65, rather than the statutory meaning, id. at 669-71.
  5. Cruz himself acknowledges that Black’s Law Dictionary consistently defined “natural born” as “born within the dominions” until 1990, when it “defin[ed] ‘natural born citizen’ for the first time to include ‘those born of citizens temporarily residing abroad.’”

Professor Ramsey nonetheless concludes that the Constitution incorporated British statutes, which extended “natural born” status to the foreign-born children of natural-born fathers.  Why?  Because the Framers were aware of those British statutes.  However, concluding that general awareness trumps all the above evidence that the Framers meant to incorporate the common law meaning hardly seems consistent with Professor Ramsey’s own conclusions that “An interpretation of the clause should … strive to find some meaning of the word natural” and that “giving ‘natural’ its ordinary legal meaning suggests the exact opposite of the conventional conclusion regarding citizenship derived from statutes.”  Ramsey at 5. 

Nor are the British statutes telling, for reasons detailed in my brief:

  1. Each British statute described itself as a “naturalization” statute, which is also how Blackstone described them, indicating they covered persons who were not “natural” born subjects.
  2. Each British statute used language (like “deemed adjudged and taken to be”) that indicated Parliament was treating the foreign-born children of subjects like “natural born subjects,” not concluding that they actually were natural born.
  3. This understanding is confirmed by the fact that other British statutes used the same type of language (“deemed, adjudged, and taken to be”) to treat various persons as “natural born subjects” based on post-birth activities, such as serving on British ships. Because these persons could not have been natural born subjects at birth, these statutes confirm that such language meant only that covered persons would be treated as natural born subjects, not that they were actually natural born.
  4. The British statutes treated foreign-born persons as natural born only if the father was natural born, which would not help Cruz because his father was not a U.S. citizen.

Contrary to Ramsey and me, Andrew Hyman argues “natural” did not refer to natural law.  He points out that, in the Ash and Johnson dictionaries, the definition for “natural” included “native” and the definitions for “native” included not only the primary definition of “One born in any place, an original inhabitant” but also the secondary definition of ‘Offspring.”  His argument has several problems:   

  1. He relies on definitions about the use of “natural” and “native” as a noun, but “natural” is plainly an adjective in “natural born citizen.”
  2. Even the noun definition of “natural” in the Johnson dictionary is “native; an original inhabitant”, clearly adopting the primary definition of native.
  3. The Constitution contrasts “natural born” with “naturalization,” and these dictionaries define “naturalization” as “The act of investing a foreigner with the privileges of a native subject.”
  4. Interpreting “natural born” to mean “offspring born” would make the word superfluous because all offspring are born.
  5. The key issue is the meaning of the phrase “natural born,” and interpreting it to mean “native born” cuts the other way because that phrase clearly meant born in the nation.
  6. Hyman’s interpretation would logically mean that all foreign-born offspring of citizens are “natural born” citizens, but the law clearly denies them citizenship unless it is provided by a naturalization statute. From 1802-1855, all foreign-born offspring of citizens were denied citizenship unless their father was a citizen before 1802 because federal statutes failed to naturalize them, and even today foreign-born children of citizens are denied citizenship unless their parents satisfy statutory residency requirements.

Others stress a 1790 Congressional statute that conferred citizenship on the foreign-born children of certain citizens, but my brief shows that:

  1. The 1790 statute aimed to change who was a citizen and thus affirmatively undermines the claim that 1790 Congressmen thought such persons were already natural born citizens under the Constitution.
  2. Nothing in the 1790 statute or legislative history suggests Congress thought it was changing (or could change) the constitutional meaning of natural born citizen.
  3. The 1790 statute described itself as a “naturalization” statute and stated only that such persons “shall be considered as natural born Citizens,” suggesting that Congress thought they were not natural born citizens but should be treated as such.
  4. In 1795, James Madison observed that Congress only had constitutional authority to naturalize “aliens” and got Congress to adopt his amendment taking the words “natural born” out of the 1790 statute. This confirms they thought such foreign-born children were natural aliens, not natural born citizens.
  5. Contemporaneous scholars stated that the 1790 and 1795 Acts meant that persons “naturalized according to these acts, are entitled to all the rights of natural-born citizens, except . . . they are forever incapable of being chosen to the office of president of the United States.”

My brief thus shows Ted Cruz is not a “natural born citizen” under either an originalist approach that considers only the text and contemporary usage or an approach that also considers legislative history, precedent, and purpose.

 

Benjamin Oliphant & Leonid Sirota on Originalism in Canada
Michael Ramsey

Benjamin J. Oliphant (Gall Legge Grant & Munroe LLP) & Leonid Sirota (New York University JSD Program) have posted Has the Supreme Court of Canada Rejected 'Originalism'? on SSRN.  Here is the abstract:   

The notion that “originalism” is fundamentally incompatible with Canadian constitutional law has achieved the status of dogma, both in the courts and the Canadian legal academy. However, this understanding tends to be premised upon the rejection of early and undertheorized conceptions of originalism that have been largely left behind.Originalism has evolved considerably over the past few decades, as scholars from across the political spectrum have developed more nuanced and defensible approaches to constitutional interpretation, which by no means freeze constitutional law in the era of constitutional enactment. In fact, the two core propositions upon which Canada’s anti-originalist myth is based – that constitutional law must evolve to meet new social realities, and that the framers intentions may be relevant, but not binding – have been largely embraced by modern originalist scholarship. Drawing upon the vast diversity of originalist thought in the United States, the authors reconsider the cases most frequently cited for the belief that originalism is fundamentally incompatible with Canadian constitutional thought, and show how many fit rather easily within the new originalist paradigm. The authors conclude that once the frequent compatibility between various forms of originalism and living constitutionalism are appreciated, there is no reason to conclude that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.

The same authors have also posted Originalist Reasoning in Canadian Constitutional Jurisprudence.  Here is the abstract: 

Amongst the fundamental assumptions underlying the practice of Canadian constitutional interpretation is the belief that originalism – whether directed at the original intentions, expected applications, meaning or understanding – plays no meaningful role in discerning the meaning of constitutional provisions. This paper sets out to correct that mistaken narrative. Through a survey of historical and contemporary decisions, the authors show that various forms of originalism have played a significant role in Canadian constitutional interpretation. Its influence can be felt both with respect to the structural provisions of the constitution – those relating to the division of powers, constitutional “bargains”, and the core jurisdiction of superior courts – as well as in the context of rights protecting provisions, such as those found in the Charter and aboriginal rights in section 35. At the same time, it cannot be questioned that the Court has rejected or refused even to consult original intentions or meanings just as frequently as it has found them persuasive or even dispositive. The Court has provided little guidance as to those circumstances in which various forms of originalism, or any other forms of constitutional argument, can and should be relied upon, which has led to a troubling state of uncertainty. The authors suggest that whether or not originalist approaches to constitutional interpretation should be accepted in any given case, it is not possible (or desirable) to avoid them entirely, and conclude that Canadian constitutional practice would benefit from openly engaging with originalist ideas and how they can be most fruitfully employed.

03/27/2016

Ronald Rotunda Reviews 'The Once and Future King'
Michael Ramsey

Ronald D. Rotunda (Chapman University, The Dale E. Fowler School of Law) has posted a book review (65 Journal of Legal Education 434 (2015)) of Frank Buckley's The Once and Future King: The Rise of Crown Government in America (Encounter Books, 2014) on SSRN.  Here is the abstract:  

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin — Great Britain and Canada — have done. As Professor F.H. Buckley notes, "He who knows only his own country knows little enough of that." He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.

03/26/2016

New Book From Dean Reuter and John Yoo: 'Liberty's Nemesis'
Michael Ramsey

Recently published: Liberty's Nemesis: The Unchecked Expansion of the State (Dean Reuter & John Yoo, eds., Encounter Books 2016).  Here is the book description from Amazon:

If there has been a unifying theme of Barack Obama’s presidency, it is the inexorable growth of the administrative state. Its expansion has followed a pattern: First, expand federal powers beyond their constitutional limits. Second, delegate those powers to agencies and away from elected politicians in Congress. Third, insulate civil servants from politics and accountability. Since its introduction in American life by Woodrow Wilson in the 20th Century, the administrative state’s has steadily undermined democratic self-government, reduced the sphere of individual liberty, and burdened the free market and economic growth.

In Liberty’s Nemesis, Dean Reuter and John Yoo collect the brightest political minds in the country to expose this explosive, unchecked growth of power in government agencies ranging from health care to climate change, financial markets to immigration, and more. Many Americans have rightly shared the Founders’ fear of excessive lawmaking, but Liberty’s Nemesis is the first book to explain why the concentration of power in administrative agencies in particular is the greatest – and most overlooked – threat to our liberties today.

If we fail to curb it, our constitutional republic might easily devolve into something akin to the statist governments of Europe. President Obama’s ongoing efforts to encourage just such a devolution, and the problems his administration faces as a consequence, present a critical opportunity to defend the original vision of the Constitution.

03/25/2016

David Weisberg: Justice Scalia and Originalism: A Brilliant Jurist and an Irreparably Flawed Theory
Michael Ramsey

David E. Weisberg (Independent) has posted Justice Scalia and Originalism: A Brilliant Jurist and an Irreparably Flawed Theory on SSRN.  Here is the abstract:      

The late Justice Scalia’s theory of constitutional interpretation, “orginal public meaning” originalism, is irreparably flawed and therefore must be discarded. The exposition proceeds in three parts: what the theory is, how it is flawed, and how judges and scholars came to embrace an irreparably flawed theory.

Part One lays out the tenets of Justice Scalia’s originalism.

Part Two demonstrates, in three sub-parts, that originalism carries within itself two distinct irreparable flaws, and the appropriate conclusion is drawn. The first sub-part demonstrates that, as a matter of logic, it is impossible to apply the theory as it was designed, because application of the theory lures the originalist into an infinite regress that bars him or her from ever finally ascertaining the so-called “original” meaning of any operative word in the Constitution. The second sub-part demonstrates that the premise of the theory — that all the operative words in the Constitution have, or might have, original meanings that differ from their current meanings — is, as a factual matter, false. The third sub-part draws the inevitable conclusion: the meaning the Constitution had in 1788, or 1791, or any subsequent year is, as a general matter, identically the same as the meaning it has today, with certain very limited exceptions.

Part Three explains how originalists came to accept the false premise that underlies their theory: they confused the definitions of words and the meanings of phrases in the Constitution with the things to which those words and phrases referred at the time of adoption of the Constitution. To illustrate how this kind of confusion leads to clear error, I analyze Justice Scalia’s views on the Eighth Amendment prohibition against cruel and unusual punishments and how the Amendment would apply to a hypothetical re-imposition of flogging as punishment for crime.

03/24/2016

Is Libertarianism the Law? Part II: Using the Modalities to Support Libertarian Results
Mike Rappaport

In this and my previous post, I argue that the constraints imposed by several liberal positivist theories do not operate to place significant limits on Supreme Court decisions.  Thus, the suggestion of these theorists that the law requires judges to take actions turns out to be largely illusory.  While the law under these theories does place some limits on the justices, those limits are relevatively weak.  To make this argument, I attempt to show how these theories (or at least one of them in this post) would allow a libertarian Supreme Court justice to reach significantly libertarian results.  Since these theorists argue that these theories allow liberal results, it seems clear that the constraints they impose are not substantial.

In my previous post, I briefly described Dick Fallon’s Constructivists Coherence Theory of constitutional law, which requires the justices to decide cases based on five types of constitutional arguments: text, intent, theory, precedent, and values.  Here I will show how a libertarian could use these arguments to reach libertarian results.

Let me start with the text.  While the text might seem like a significant constraint, Fallon’s theory renders it much less substantial because he allows the interpreter to rely on either the original or the contemporary meaning.  Based on either the original or contemporary meaning, the text of the Takings Clause, the Privileges or Immunities Clause, the Contracts Clause, the Ninth Amendment, and the Due Process Clause could strongly support libertarian results.  (Other clauses might also be important, such as a First Amendment protection of commercial speech.)        

Regarding intent, Fallon’s theory again introduces significant discretion.  The interpreter can rely on the specific intent (something that the framers specifically thought about) or the general intent (which aims at a higher level of generality).  These two types of intent can conflict.  For example, some people believe that the 14th Amendment framers specifically intended to allow segregated schools, but one might still conclude that their general intent to prohibit racial discrimination prohibited such schools.  Either the specific intent or the general intent (which after all leaves the interpreter significant discretion) could be used to promote libertarian results under the provisions mentioned in the previous paragraph.

The third type of argument, constitutional theory, also allows a libertarian justice to promote his agenda.  There are strong libertarian theories for both individual clauses and for the Constitution as a whole.  One theory of the Takings Clause, which has enormous consequences for the entire Constitution, is Richard Epstein’s Takings.  It is a very plausible view of the Constitution and strongly supports libertarian results.  One could also adopt a Lockean natural rights view of the Constitution as a whole.

Precedent, the fourth type of argument, is probably the biggest obstacle for a libertarian approach.  Many precedents, especially from the New Deal, have overturned libertarian positions to favor a more statist approach.  But these precedents can be avoided.  Under Fallon’s approach, there are two doctrines of precedent – a narrow doctrine that allows one to distinguish precedents and a broad one that allows one to read them to cover new cases.  Fallon believes that the justices can choose between these two doctrines in particular cases based on the values involved.  Thus, it seems clear that libertarians will often be able to avoid problematic precedents by reading them narrowly.

Value arguments are the fifth type.  Value arguments are not employed directly, but to resolve issues concerning the other type of arguments.  For example, value arguments might affect whether one interprets a precedent narrowly or broadly, how one interprets text that is ambiguous, or which constitutional theory to employ.  Thus, libertarians who embrace arguments based on libertarian values could use these values to prefer libertarian arguments in other areas.

In the end, there is a strong case that a justice could pursue at least a moderate libertarianism under this theory of the law.  While some originalists, such as Randy Barnett, argue that the Constitution’s original meaning supports results that are similar to a moderate libertarianism, that is not the only way to reach those results.  One can reach them under the positivist theories put forward by liberal nonoriginalist theorists.

"Natural" Born Citizens Are "Native" Born Citizens
Andrew Hyman

Mike Ramsey recently referred to arguments by Harvard Law Professor Einer Elhauge as to what the Constitution's Natural Born Citizen (NBC) Clause means.  Professor Elhauge wrote the following:

[A]t the time the Constitution was enacted, the word “natural” meant arising from the nature of things.  Thus, “natural law” was distinguished from statutory law, and natural rights were distinguished from statutory rights. Thus, the ordinary meaning at the time was that “natural born” citizenship meant the citizenship that arose as a matter of the natural law that was recognized at common law.

Actually, the word “natural” was used in various different senses in 1789, and the task for originalists is to figure out which sense was used in the NBC Clause.  Professor Elhauge is mistaken to think the word “natural” in the NBC Clause meant the same thing it meant in the term “natural law.”  

A dictionary by John Ash published in 1775 gave “native” as a definition of “natural,” and Ash also indicated that “native” is the pertinent definition in the context of "naturalization."  Ash furthermore said that “native” means either an inhabitant or an offspring.  The lexicographer Samuel Johnson wrote pretty much the same things in 1756.

Aside from dictionaries, lots of books during that era referred to “native born subjects."  And, James Iredell said the following during the ratification debate in North Carolina: "No man but a native, or who has resided fourteen years in America, can be chosen president” (emphasis added).  The word “natural” in the NBC Clause thus meant “native,” which is a different sense of the word “natural” than one finds in the term “natural law.”  

According to Mike Ramsey, "Because English common law, at least with regard to subjectship, regarded itself as founded on natural law, the Constitution’s use of 'natural' might be thought of as an express incorporation of common law."  I am not persuaded by Professor Elhauge that the English parliament, or for that matter British judges, regarded statutes as lacking foundation in natural law, or as being inferior to judge-made law in that regard.  For example, Chief Justice John Vaughan wrote in the case of Hill v. Good (1674): "When an Act of Parliament declares a thing to be forbid by God’s law, it is To be so taken by us…."  In any event, the NBC Clause meant "native" born citizens, and does not use the word "natural" in the sense of "natural law."

MIKE RAMSEY ADDS:  I'm just happy that Professor Elhauge thinks (a) at least some disputed clauses of the Constitution have a fixed discoverable original meaning that can resolve modern debates and (b) judges should intervene in the political process to enforce the original meaning.  We don't get that kind of support from Harvard Law every day.