Gerard Magliocca on Halbig and Originalism (and Larry Solum's Response)
Michael Ramsey

At Concurring Opinions, Gerard Magliocca: Halbig and Originalism

At issue [in Halbig, the Obamacare subsidies litigation] is a major provision in the most visible statute passed by Congress in years (if not decades).  And we cannot agree what that provision was trying to accomplish just four years after it was enacted.  Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case?  Was there a drafting error, or was this intentional?  If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?

Larry Solum responds (persuasively, from my perspective) at Legal Theory Blog.  A number of good points, including this one:

First, I don't know of any originalist who claims that we can know with certainty the original meaning of each and every provisions of the constitutional text.  Some provisions, e.g., the privileges or immunities clause of the 14th Amendment, are textually opaque.  This does not mean we can or should give up.  And there may be a preponderance of evidence on a disputed provision, but thoughtful originalists certainly know (better than most) that some originalist work is very difficult.

Professor Magliocca has further thoughts in response here.

Michael Dorf Responds to Eugene Volokh on the Perry Indictment
Michael Ramsey

At Dorf on Law, Michael Dorf: Separation of Powers Does Not (Necessarily) Immunize the Veto Power -- Wherein I Respond to Eugene Volokh's Reply to My Analysis of the Rick Perry Indictment.

Professor Volokh's post is noted here (the question being whether the legislature can ever criminlaize the use of a veto).

Professor Dorf poses this hypothetical, which seems like a good one:

Imagine a scenario ... [in which] U.S. intelligence learns of a foreign terrorist plot that would exploit a key vulnerability in domestic defenses; Congress acts swiftly to pass a bill appropriating funds for an emergency fix; but the President, secretly acting on behalf of the terrorists, allows the bill to sit on his desk for nine days, and then vetoes it, during which time the devastating terrorist attack occurs. Isn't this a pretty clear case of Presidential treason via the veto power?

But I say no.


Justice Scalia and United States v. Sprague
Michael Ramsey

Where does Justice Scalia stand on the question (recently debated here and elsewhere) whether originalism should seek the original legal meaning of the Constitution (that is, as understood by legal experts) or simply the original meaning as understood by non-experts?

Ilya Somin argues, on the basis of a passage in District of Columbia v. Heller, that Scalia favors a "populist" meaning.  But Mike Rappaport shows that in other cases, Justice Scalia relies on legal meaning.

Here is the key passage from Heller:

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Sprague itself is an interesting if largely forgotten case, unanimously picking textualism over unexpressed purpose and living constitutionalism.  The defendant, convicted of alcohol-trafficking during Prohibition, claimed that the Eighteenth Amendment was invalid because it had been approved by state legislatures instead of by a constitutional convention.  As the Court described:

The appellees ... say that it was the intent of its framers, and the Constitution must therefore be taken impliedly to require, that proposed amendments conferring on the United States new direct powers over individuals shall be ratified in conventions, and that the Eighteenth is of this character.  They reach this conclusion from the fact that the framers thought that ratification of the Constitution must be by the people in convention assembled, and not by legislatures, as the latter were incompetent to surrender the personal liberties of the people to the new national government.  From this and other considerations hereinafter noticed, they ask us to hold that Article V means something different from what it plainly says.

Amazingly, the district court agreed (albeit on somewhat different grounds) and held the Eighteenth Amendment invalid.  As the Supreme Court further described:

[The District Court] quashed the indictment not as a result of analysis of Article V and Amendment X, but by resorting to "political science," the "political thought" of the times, and a "scientific approach to the problem of government."  These, it thought, compelled it to declare the convention method requisite for ratification of an amendment such as the Eighteenth.

But the Court had no sympathy for either view.   In a crisp opinion by Owen Roberts, it followed the plain language:

The United States asserts that Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.  A mere reading demonstrates that this is true.  It provides two methods for proposing amendments.  Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the states, must call a convention to propose them.  Amendments proposed in either way become a part of the Constitution

"when ratified by the legislatures of three-fourths of the several states or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . ."

The choice, therefore, of the mode of ratification lies in the sole discretion of Congress ...

If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler that so to phrase Article V as to exclude implication or speculation.  The fact that an instrument drawn with such meticulous care and by men who so well understood now to make language fit their thought does not contain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidence  that no qualification was intended.

So, first, Sprague wasn't about legal meaning versus populist meaning; it was about textual meaning versus implications from non-textual sources.  The full quote from Sprague adds the point that "where the intention is clear [from the text], there is no room for construction and no excuse for interpolation or addition."  Second, Sprague's approach tracks Scalia's position in Heller, which was that the text should prevail over the purpose/intent arguments pressed by Justice Stevens in dissent.  Indeed, in Heller itself Scalia relied on legal meaning and interpretive conventions -- most notably that a preamble cannot alter the unambiguous meaning of the text's operative clause.

I think the key to both opinions is that the meaning is found in the text, not in hidden and unexpressed intents.  This is what both opinion authors surely had in mind.  To read either opinion as taking a position on the legal meaning/populist meaning is to go well beyond what was at stake in the cases.

Ironically, though, the plain language Justice Roberts wrote in Sprague and Justice Scalia repeated in Heller does appear to take such a position.  It's hard to read "normal and ordinary [meaning] as distinguished from technical meaning" as anything other than contrasting popular meaning and legal meaning. 

My view is that this re-affirms the importance of not taking dicta too seriously.  People (including Justices) repeat attractive phrases without thinking closely about their implications, so long as the implications are not concrete and immediate.  As a result, I don't think the Heller/Sprague quote necessarily reflects what Justice Scalia thinks of the specific issue of legal versus popular meaning.

As an aside, US v. Sprague is interesting for a different reason.  The Court of the 1930s is criticized (rightly) for not being originalist or textualist.  But Sprague shows its Justices could unite behind a  strong bit of textualist originalism -- refusing even to engage purposive or normative arguments -- when there was no political pull in the other direction.

RELATED:  John McGinnis comments on the legal meaning/popular meaning debate: The Constitution as Law Nested in Other Law.  Jon Roland also comments: Lay vs. legal versions of originalism, including this point:

The alternatives are misframed by use of the terms "elitist" and "populist", which are distinctly modern terms, not 18th century terms. The proper distinction is between (legally) "learned" and "unlearned", and that is the way even lay persons would have distinguished the two approaches. We find no significant evidence that any laypersons in the founding era insisted on "unlearned" use of what are legal terms because they are used in a law, which makes them legal terms by definition. The average man in the street in 1787, if asked for the meaning of a term he didn't know, and told it was being used in a law, would either ask someone he trusted who was learned in the law, or look it up in a copy of Blackstone. I find not a single instance of anyone in the era insisting on his own lay meaning over that of legally learned person. That just is not the way the people of that era thought.

I would add that the term "elitist" distorts the role of the legal meaning.  The legal meaning of the text was (and is) available to those who investigate it, whether they are lawyers or laypersons, ordinary or elite.  Appealing to it does not hide or unsettle the meaning.  The key distinction (what was really at issue in Sprague) is between legal meaning of the text -- which can be looked up -- and unexpressed intent or purpose, which can only be speculated about and invoked by elite decisionmakers when convenient.


Justice Scalia, Ordinary Meanings, and Legal Meanings
Mike Rappaport

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge.  I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment.  Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document.  These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.  

It might seem that Justice Scalia supports the ordinary public side of this issue.  In DC v. Heller, Justice Scalia wrote that: 

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Thus, Scalia seems to side with the view that legal meanings are not followed.  But Scalia seems on weak ground here.  First, Sprague is a 20th century case, which is no evidence of the original meaning, and Gibbons does not really support him.  

Second, Scalia himself has regularly relied on the legal meanings of terms in the Constitution.  For example, in Crawford v. Washington, one of Scalia’s premier originalist opinions concerning the Confrontation Clause, he quotes with approval that 

the “right … to be confronted with the witnesses against him,” Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. . . . As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine.  The Sixth Amendment therefore incorporates those limitations. 

The common law is the legal meaning.  One cannot assume that the general public understood that meaning and therefore Scalia here seems to be contradicting his methodological statement in Heller. 

In Giles v. California, another originalist Confrontation Clause opinion written by Scalia, Scalia does it again.  The issue is whether a witness who is rendered unavailable to testify by the defendant can have his testimony excluded based on the Confrontation Clause.  Scalia writes that 

the manner in which the [common law] rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded.

Once again, the content of the Confrontation Clause turns on technical questions under the common law – knowledge that the ordinary public would not have know.  I am confident that I could produce numerous other examples of Justice Scalia interpreting texts in accordance with technical legal meanings. 

Perhaps Justice Scalia is just being inconsistent.  But there is another possibility.  Perhaps when he says that the Constitution’s “words and phrases were used in their normal and ordinary as distinguished from technical meaning,” he does not mean to exclude legal meanings.  Perhaps he had “hypertechnical constructions” in mind. 

But Justice Scalia’s statement in Heller is curious and, given this other evidence, is only used problematically as evidence against legal meanings.  

(Cross posted at the Liberty Law Blog)

Mark Graber: Constructing Constitutional Politics
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment on SSRN. Here is the abstract: 

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.


Julio Esteban Altamirano: The Rise and Fall of Our Constitutional Legal Systems
Michael Ramsey

Julio Esteban Altamirano (Independent) has posted The Rise and Fall of Our Constitutional Legal Systems: Part I: And a Potential Solution to the Debate between Professor Goldsworthy and Kirby J of the High Court of Australia? on SSRN. Here is the abstract: 

The following paper will address the debate between Professor Jeffrey Goldsworthy and Kirby J of the High Court of Australia as it relates to the debate on which constitutional interpretive methodology is legitimate. Professor Goldsworthy arguing against radical non-originalism whilst Kirby J in defence of his progressivist approach to constitutional interpretation.

The paper defines with some discussion of the various approaches to constitutional interpretation including: originalism, moderate originalism, non-originalism, etc…

Professor Goldsworthy argues that radical non-originalism or progressivism as a methodology of constitutional interpretation results in the destruction of the rule of law, democracy and in the Australian context federalism by arguing that this form of constitutional interpretation effects illegitimate change, that is, by allowing the Constitution to be interpreted according to the changing needs of society, the definition of progressivism or radical non-originalism in constitutional interpretation, would enable the judiciary to avoid s 128 of the Australian Constitution (the referendum procedure), "…in a haphazard fashion…" resulting in the destruction of these vital constitutional principles – the rule of law, democracy and in the Australian context federalism.

The paper also seeks to define the rule of law from a Diceyan perspective and also what is meant by democracy to clarify on the debate and determine whether codification of judicial review would enhance such principles, also as enshrined in section 128 of the Australian Constitution.

The paper will propose the codification of judicial review or constitutional interpretation and codifies the interpretive methodology of McHugh J and submit that by codifying Kirby’s J radical non-originalism and submitting it to a constitutional referendum as approved would in fact enhance the rule of law, democracy and in the Australian context federalism, thus, providing a solution to the debate between Professor Goldsworthy and Kirby J of the High Court of Australia.

The hypotheses, can progressivism or radical non-originalism actually enhance the rule of law, democracy and federalism rather than resulting in their destruction contrary to what Professor Goldsworthy claims?

And would the reforms so mentioned be constitutional from a separation of powers perspective? In the answering of the latter question, the separation of the powers doctrine is defined and introduced with discussion on whether codification of judicial review would breach the separation of powers doctrine.


Eugene Volokh on the Perry Indictment
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: Why the Gov. Rick Perry prosecution unconstitutionally intrudes on the gubernatorial veto power (concluding "so long as the constitution grants the governor the power to veto laws, I don’t think the legislature can criminalize such vetoes, and thus free itself from the constraints that the state Constitution imposes on it.").

I know nothing about Texas law, but I agree this is the right analysis under federal law.  In my Constitutional Law course I routinely use the veto as an example of a power the President may excercise in the face of express congressional disapproval.  And if Congress cannot directly prohibit a veto, likewise it should not be able to attach penalties to the use of a veto.  As Professor Volokh says, the remedy for misuse of the veto (for personal gain, for example) is impeachment.

In this post, linked by Professor Volokh, Mike Dorf at Dorf on Law argues the opposite.  In particular:

The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: "But I have a license to operate a motor vehicle."

Well, no, it isn't like that at all, because the license to operate a motor vehicle isn't granted by the Constitution.   The President's (or Governor's) constitutional authority can only be limited by other constitutional provisions. 

(Professor Dorf get some pushback along these lines in the comments, and has some interesting responses).


John McGinnis on Justice Sutherland's Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Justice Sutherland's Uncertain Trumpet.  From the conclusion:

Sadly, the hero of my youth has become for my middle age another figure with feet of clay. His dissent in Blaisdell shows he had it in him to be a fine originalist. Why in these other important cases has he so failed this jurisprudential test? One explanation is the usual one. Sutherland was results oriented. He was an internationalist and Curtiss-Wright’s location of foreign affairs authority in the President facilitated internationalism at the time.  He had served as a Senator and Burroughs’ ratification of election regulation advanced confirmed power in the national government.

Another explanation may be that the rise of living constitutionalism in the Progressive Era affected conservative as well as liberal justices. Justices may be even more the prisoners of the jurisprudential theories of their time than of their political ideology. Perhaps that explanation should give us hope today, as originalism continues its comeback in the academy and in the courts.

Professor McGinnis generously cites this post in which I sharply criticize Sutherland's foreign affairs opinions.

Seth Barrett Tillman: Originalism & the Scope of the Constitution's Disqualification Clause
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Originalism & the Scope of the Constitution's Disqualification Clause (Quinnipiac Law Review, Forthcoming, Vol 33, Issue 1, circa Dec. 2014) on SSRN.  Here is the abstract:

This paper discusses the scope of the Constitution’s Disqualification Clause (Article I, Section 3, Clause 7) and the original public meaning of its “office . . . under the United States” language. In a recent paper in this journal, Benjamin Cassady argued that this clause bars disqualified former presidents, vice presidents, and officers of the United States from subsequent election or reelection to the presidency and vice presidency. Here, I take the contrary position: disqualified former presidents, vice presidents, and officers of the United States are not barred from any elected positions, state or federal. Rather, such disqualified former presidents, vice presidents, and officers of the United States are only barred from holding statutory or appointed federal offices. Finally, I address some issues relating to best methodological practices and the use of structural and other intuitionist modalities of interpretation when constitutional text is reasonably clear.

I primarily rely on evidence contemporaneous with the ratification of the U.S. Constitution, including: the drafting traditions of the Committee of Detail and the Committee of Style, statutory drafting traditions going back to the First Congress, official Executive Branch communications from Secretary Alexander Hamilton to the Senate, and President Washington’s gifts from foreign government officials. These are all Founding-era precedents involving the Constitution’s “Office . . . under the United States” language, i.e., the operative language in the Disqualification Clause.

I expect this paper will appear in conjunction with papers from Professor Brian C. Kalt, Professor Peter C. Hoffer, and Buckner F. Melton, Jr.

I am ever hopeful that my paper (and those of the prominent commentators mentioned above) will draw some response from both Mr Cassady and those commentators upon who his paper relied.

 Here is the paper by Benjamin Cassady mentioned in the abstract.


Timothy Sandefur on Elitist and Populist Versions of Originalism
Michael Ramsey

At Freespace, Timothy Sandefur comments (critically) on Ilya Somin's post on elitism and populism: An example of "elitist versus populist originalism" (with an interesting account of the opinions in Wayne County v. Hathcock, the Michigan eminent domain case).  On the broader question, he observes:

But surely the populace is on notice that terms in the Constitution are very important, are pored over by lawyers and judges, and are interpreted in light of other precedents. They are therefore ultimately responsible for choosing words that avoid results they don't like, such as incorporating the Berman interpretation of "public use" into their state Constitution. If they fail to take such precautions, then the law presumes that they've done what they've done intentionally. If they later decide that was a mistake, then either (a) the precedent on "public use" was wrongly decided, and should be overruled for that reason, or (b) the people can use the tools at their disposal to alter the constitutional wording. But I see no way that this problem breaks down along epistemological grounds, or that it can be understood along the axis of elites versus populism. This problem is better understood as an ordinary problem of constitutional interpretation--does "public use" include economic development or not?--than as some deeper problem of interpretation, or at least, a problem of interpretation that turns on the question of elites versus the populace.

And trying to analyze it in terms of the latter, and to take a position on the side of such a vaguely defined concept as "populism," seems to invite the eradication of all law, essentially. What I mean by that is, law consists almost entirely of a very refined and specialized use of language. That refinement and specialization is within the grasp of the ordinary person, but most ordinary people don't bother trying it: they (rationally) leave that task to legal experts. If the experts do something wrong, then the people can use their retained power to fix the problem. But to say that there is some fundamental problem with the lawyer's technical use of language does not help. What, after all, are we to replace it with? Daily polls of what people think the terms mean? Then who will take the polls? And who will interpret these polls? And then aren't the interpreters doing just what judges already do: figuring out what people think the words mean?

Ilya Somin responds here, with a further response from Tim Sandefur here.

Without endorsing everything Tim Sandefur says, I think he and I are aligned on the basic proposition that law is (in part, anyway) a specialized use of language, and so it really doesn't make sense to interpret legal language in a way that does not recognize it as a specialized use of language.

John McGinnis and Michael Rappaport make a similar point in Originalism and the Good Constitution (p. 134):

The reader of a legal document knows that documents are often subject to legal methods that may affect their meaning.  While this is true of legal documents, it is not less true of other specialized documents.  For example, the reader of a postoperative report would recognize that the interpretive conventions  of the medical profession govern its meaning.  Similarly, the reader of the US Constitution would recognize that its meaning depends on interpretive rules that were generally deemed applicable to written constitutions of this type.