Posner and Segall's Evasion of the Sense-Reference Distinction
Chris Green

Judge Posner and Eric Segall have each recently replied (in a 4-page co-authored piece at the end of the collection here, and in a longer solo piece by Segall here) to Will Baude and Stephen Sachs's recent work on originalism (a 6-page co-authored piece in the same collection, Baude alone here, Sachs alone here and here, and a forthcoming co-authored piece here). Baude and Sachs hold that our constitutional law must "lawfully derive from the law of the founding." I have a bit of sympathy for Posner and Segall's terminological quibble; Baude and Sachs's view might more usefully be called meta-originalism, rather than originalism as such, because it can encompass those who think that we have always had a common-law, intergenerationally-authored Constitution--David Strauss, Jed Rubenfeld, or Ronald Dworkin, say. Unlike Posner and Segall, though, I think Baude and Sachs's original-law meta-originalism is both true and important.

One important flaw in Posner and Segall's recent contributions is their failure to engage with Baude and Sachs's use of the sense-reference distinction, which philosophers of language have used at least since the time of Frege to explain how linguistic categories work. I wrote at length about the distinction over ten years ago, though, as Baude and Sachs kindly note, "too few scholars have read" my work. Some philosophers have, to be sure, criticized the distinction (and others have defended it), but Posner and Segall simply ignore it. That seems "obviously wrong, yet eminently curable," in Posner's words.

The basic idea is that building cars does not, in itself, change the meaning of the word "car"--the "sense" of the word. But building cars does change something about the word "car": its "reference," or collection of things picked out by the term. So, if someone asks me how many cars there are, I need to know (a) what he means by "car" and (b) the automotive facts. Both linguistic and automotive facts change all the time, of course, but they do so in different ways and for different reasons. If we want to find out how many cars there are in America, we have to do so (paraphrasing Brown) "in the light of [cars'] full development and [their] present place in American life." Current automotive facts are essential, even if we are merely applying a word that someone spoke long ago (e.g., in verifying or falsifying a prediction long ago that someday there will be a certain number of cars in America).

My view is that original sense, but not original reference, is interpretively binding. This is how the meaning of words can be both fixed but abstract. The original sense determines a function from possible worlds to outcomes; current facts tell us what possible world we are in, which we then plug into the sense-determined function, producing an outcome. As Baude put it at p. 2356, footnoting my paper, "a word can have a fixed abstract meaning even if the specific facts that meaning points to change over time."

After quoting this statement, Segall asks incredulously at p. 40, "How can the meaning of words be simultaneously 'fixed' and 'abstract?' " But Segall does not then engage the sense-reference distinction on which Baude and I rely, but instead jumps to disputes over the interpretation-construction distinction, on which originalists have differed regarding how to deal with vagueness, ambiguity, and kindred phenomena. But vagueness is not the same thing as abstraction.  A term is "abstract," as Baude uses the term, if its reference can change without the term's meaning changing as well. On the other hand, a term is vague if it has a fuzzy, unclear boundary; these are not the same thing. I offer my own take on how to deal with vagueness and lack of clarity here and here, but it is important to see that Baude plainly does not use the interpretation-construction distinction to explain how meaning can be both fixed and abstract. The sense-reference distinction does that, whatever we think about construction and interpretation.

An appreciation for the sense-reference distinction would have prevented Posner and Segall's misreading of Brown v. Board of Education, which I paraphrased above. Posner and Segall think (at p. 110) that in stressing the need to consider the "full development" and "present place" of education, "The Court in Brown expressly rejected the idea that history mattered." But the relevance of present facts does not entail the irrelevance of historical facts. Indeed, Brown itself says that historical sources "cast some light," but "not enough."

History tells us that (as I see it) the Fourteenth Amendment bans second-class citizenship, but current facts tell us what rights are in fact given generally to citizens (what counts as "the very foundation of good citizenship," as Brown puts it) today. Building new cars does not change what it means to be a "car"; neither does building new privileges of citizens change what it means to be a privilege of citizens of the United States. To get outcomes, we need both (a) the historically-fixed function from possible worlds to outcomes and (b) a specification of which world we're in. Our need for reference-yielding current facts in (b) does not undermine our simultaneous need for historically-fixed sense in (a). 

Brian Christopher Jones & Austin Sarat: Antonin Scalia and the Cultural Life of the Law
Michael Ramsey

Brian Christopher Jones (Liverpool Hope University) and Austin Sarat (Amherst College) have posted Justices As 'Sacred Symbols': Antonin Scalia and the Cultural Life of the Law (British Journal of American Legal Studies, forthcoming (2017)) on SSRN.  Here is the abstract    

The idea of the brilliant and elegant philosopher judge has a long and romanticized history. From Sir Edward Coke, William Blackstone and Joseph Story to Oliver Wendell Holmes, Louis Brandeis and Lord Bingham, the common law is replete with this vision of judging. In this vision, judges sometimes seem to be law makers as much as faithful it interpreters. In many ways Antonin Scalia fought against this traditional vision of the philosopher judge. He disliked activist judges who imposed their idea of wisdom on elected legislatures; in fact, he trumpeted his jurisprudence for its fidelity to law and deference to the popular will. But even though Scalia fought against the romantic vision of philosopher judge, he himself became a living symbol of a judicial philosophy, a symbol so powerful that sometimes it was difficult to disentangle the judge from his jurisprudence. His status as a symbol and how he achieved his status, was much different from the route of the judges mentioned above. This paper attempts to explain how Scalia became what we call a judicial “sacred symbol”.


More Commentary on the Trump Supreme Court List -- Justices Lee and Stras [with Further Update on Lee]
Michael Ramsey

At NRO, Hanna Smith (Becket Fund for Religious Liberty) makes the originalist case for nominating Justice Thomas Lee of the Utah Supreme Court: Replacing Justice Scalia: A Proven Originalist from Trump’s List.  From the core of the argument:

In his years on the Utah Supreme Court, Justice Lee has stated that judges must “implement the principles of the constitution as originally adopted because that is the very point of having a written constitution.” He has also held that “it should go without saying that our construction of a provision of the constitution must rest on the original meaning of the constitutional text.” Originalism, he writes, “is a theory that is essential to any system of government that finds its legitimacy in the will of the people as expressed in positive laws.”

In Scalia- and Thomas-like fashion, Justice Lee has insisted that “achieving outcomes that satisfy our policy preferences is not our function.” Rather, judges “are tasked . . . with deciding the cases that come before us in accordance with the rule of law — whether or not it yields an outcome we favor on policy grounds.” He has opined that “as judges we take an oath to uphold and defend the constitution,” which calls for interpreting the law based on “what it originally meant” when enacted, not on a judge’s “instincts or beliefs.”

In one important respect — his approach to judicial precedent — Justice Lee is more like Justice Thomas than like Justice Scalia. Justice Thomas (for whom Justice Lee clerked) adheres to the view that the Constitution as written trumps judicial opinions that clearly break with the Constitution. Justice Lee has repeatedly advocated for overruling precedent that is “contrary to the original meaning of the Utah constitution.”

These views are not mere talking points, but positions affirmatively staked out in Justice Lee’s judicial opinions. What you see is what you’ll get with Justice Lee – an originalist judge who will uphold the Constitution as written. He can be trusted to walk the Scalia walk because he already has, as a judge on the highest court in his state. In short, his opinions confirm that Justice Lee has a well-developed theory of judging — patterned after Justice Scalia’s – that ensures he will be a voice for the rule of law.

The post also notes that Justice Lee, like Justice Scalia, was a professor before becoming a judge; that he would make history by being the first Mormon on the U.S. Supreme Court, and that:

Nominating Justice Lee will also help unite Republicans following an acrimonious election. In his acceptance speech, Mr. Trump reached out to groups — including many conservatives — who did not support his candidacy, seeking their “help” to “unify our great country.” Nominating the brother of a prominent conservative leader who did not support Mr. Trump (Senator Mike Lee of Utah) would go a long way toward fulfilling the magnanimous spirit Mr. Trump displayed on election night.

Meanwhile, at Powerline, Scott Johnson argues for Minnesota Supreme Court Justice David Stras: A Word for David Stras.  Key points:

Justice Stras respects the role of the judiciary and the Constitution’s separation of powers. Justice Stras holds that the judiciary “does not write statutes; nor do we amend them; no matter the circumstances.” State v. Ali, 855 N.W. 2d 235, 268 (Minn. 2014) (concurring). Justice Stras’s concurrences and dissents, in particular, repeatedly emphasize that courts are bound to respect “fundamental limitations on our authority[.]” He holds that courts are to resist the temptation to encroach on legislative functions and become “a junior-varsity legislature.” In re Guardianship of Tschumy, 853 N.W.2d 728, 752-53 (Minn. 2014) (dissenting); State v. Crawley, 819 N.W.2d 94, 118 (Minn. 2012) (dissenting).

Justice Stras’s views on the role of the judiciary arise from an appreciation of constitutional separation of powers. In State v. M.D.T., 831 N.W.2d 276 (Minn. 2013), Justice Stras described in detail the strict separation of powers required by Minnesota’s Constitution and concluded that the district court abused its discretion by relying on inherent judicial authority to order relief beyond what was provided in the statute at issue.

Justice Stras’s objection to the district court order went beyond the fact that the court acted beyond its authority. Instead, Justice Stras pointed to the constitutional significance of judicial encroachment in an area where the legislature was authorized to act. Proper respect for the separation of powers is urgent as the Court addresses constitutional limitations on its own power as well as limitations on an administrative state that has undertaken the role of all three branches.

Justice Stras is an originalist and a textualist. Like the opinions by Justice Scalia, Justice Stras’s decisions are notable for a rigorous analysis of statutory and constitutional text that interprets the text as it was understood at the time of its adoption. In State v. Nelson, 842 N.W.2d 433 (Minn. 2014), Justice Stras rigorously analyzes the text of the statute text, citing multiple dictionaries. Justice Stras’s majority opinion credits the statute as written over what other judges viewed as the historical understanding and intent underlying the statute.

Perhaps the best example of Justice Stras’s originalist approach comes in United Prairie Bank v. Haugen Nutrition & Equip., LLC, 813 N.W.2d 49 (Minn. 2012). The case involved the question of whether a party seeking contractual attorney fees is entitled to a jury trial under Minnesota’s Constitution. Justice Stras first addressed the question whether a party would have been entitled to a jury based on the same theory of relief at the time Minnestoa’s Constitution was adopted and then assessed the plaintiff’s claim in light of similar theories. United Prairie Bank shows Justice Stras following Justice Scalia’s model by making the intellectual case for originalism and pushing his colleagues to apply the text of the Constitution as written.

UPDATE:  A reader sends this information -- 

For a very good exposition of [Justice Lee's] views on due process, stare decisis, and originalism, see this decision, issued Tuesday:

In the Matter of the Adoption of K.A.S (Utah S. Ct. Dec. 6, 2016), Lee dissenting.

The dissent begins: 

Parental-rights termination cases are heart-wrenching. They present problems of enormous consequence—of severance of one of the most cherished of all human bonds, with the safety and welfare of children hanging in the balance. This is a matter on which our sensitivity for justice is heightened. And for that reason I can appreciate a desire to find a way to secure the appointment of counsel in a case like this one. As a pure policy matter, I see significant upsides in assuring that a parent has the benefit of legal counsel before his legal rights are terminated.

That said, the issues before us are not policy questions. We are not legislators voting on a statute guaranteeing appointed counsel in parental-termination cases. We are judges faced with questions of law—under our law of preservation, and on matters of statutory and constitutional interpretation. And I find no basis in law for the majority’s conclusions.


Eric Segall: Legal Realist Originalism?
Michael Ramsey

At Dorf on Law, Eric Segall: Legal Realist Originalism?  From the introduction:

Earlier this year, Professor Will Baude of the University of Chicago published an essay in the Columbia Law Review titled "Is Originalism Our Law?". He argued that landmark Supreme Court cases such as Home Bldg. & Loan Ass'n v. Blaisdell, Brown v. Board of Education, and Obergefell v. Hodges, which virtually the entire world views as examples of either living constitutionalism, or the pluralistic/common law descriptive theories of David Strauss and Mike Dorf, are actually originalist as written


In essence, Baude argues that, as long as the Court uses a mode of interpretation that the people alive in 1787 would have recognized as legitimate, the Court is using what he calls “inclusive originalism.” He claims that those folks understood that “fixed texts can harness what seem to be changing meanings. Though the text may have originally been expected to apply in a particular way to a particular circumstance, that does not mean that its original meaning always must apply in the same way.” Thus, according to Baude,  “originalists can sensibly apply legal texts to circumstances unforeseeable at the time of enactment,” and come up with results that defy the original expectations of the people who drafted and ratified those provisions.

On Friday, the Cornell Law Review On Line published my response to these arguments (there has also been a short back and forth in the Green Bag between Baude with Stephen E. Sachs and Judge Posner and myself on the same issues). The thrust of my reply is that Baude's descriptive account of constitutional law is accurate but labeling that account “originalist” is obviously misleading if originalism as a term of art is to carry any weight separate from living constitutionalist or pluralistic theories of constitutional interpretation. ...


Nelson Lund on the Right to Arms
Michael Ramsey

From the Heritage Foundation's First Principles Series, Nelson Lund (George Mason): The Right to Arms and the American Philosophy of Freedom.  From the introduction:

Many Americans, and not just those on the left, misunderstand the liberal principles on which the right to keep and bear arms rests. As we have seen, even well-educated political conservatives can vigorously deny the value of the Second Amendment, and the silence of many other conservative intellectuals suggests a widespread ignorance about its continuing importance. Merely acknowledging that this right is part of America’s tradition will not keep the tradition alive. Scholarship proving that a robust right to arms is enshrined in the original meaning of the Constitution will not stop the courts from interpreting the Second Amendment into oblivion. Showing that restricting the rights of law-abiding citizens has yet to contribute to public safety will not prevent politicians from claiming that new and even more restrictive laws are all we need.

People who do not understand why they should defend the right to arms are not likely to be its most effective defenders. For too long, conservative intellectuals have given insufficient attention to a principled defense of this right. Alexis de Tocqueville, a favorite among conservative thinkers, warned against democracy’s drift toward new and softer forms of despotism. The left wants us to believe that resistance is futile, and conservatives need to overcome the effete sensibility that abhors “America’s frontier infatuation with guns.” The Founders of our republic did not think an armed citizenry was the product of a childish infatuation or a response to life on the frontier, and the philosophers who guided them can help us to see why the right to arms continues to deserve its place in our fundamental law.

And from the core of the argument (footnotes omitted):

The fundamental importance of the right to arms was not an American discovery. Like our own charter of individual liberties, the English Bill of Rights protected the right to keep and bear arms. William Blackstone (1723–1780), the leading authority on English law for Americans of the Founding generation, called it one of the indispensable auxiliary rights “which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.” This right, he said, is rooted in “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Blackstone made no distinction between the violence of oppression that results from government’s failure to control common criminals and the oppression that government itself may undertake.

The Constitution proposed by the Philadelphia Convention contained no express protection of the right to arms or of many other fundamental rights. The new government was to be one of limited and enumerated powers, and most of the Framers thought there was no need to expressly protect rights that the federal government would not be empowered to infringe.

With respect to arms, however, there was a special problem. The federal government was given almost plenary authority to create a standing army (consisting of full-time paid troops) and to regulate and commandeer the state-based militias (which comprised most able-bodied men). Anti-Federalists strongly objected to this massive transfer of power from the state governments, which threatened to deprive the people of their principal defense against federal usurpation. Federalists responded that fears of federal oppression were overblown, in part because the American people were already armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions: All agreed that the proposed Constitution would give the new federal government almost total legal authority over the army and militia, and nobody argued that the federal government should have any authority to disarm the citizenry. Federalists and Anti-Federalists disagreed only about whether the existing armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalist desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Instead, it merely aimed to prevent the new government from disarming American citizens through its power to regulate the militia. Congress might have done so, for example, by ordering that all weapons be stored in federal armories until they were issued for use in performing military or militia duties.

Unlike many people in our time, the Founding generation would not have been puzzled by the text of the Second Amendment. It protects a “right of the people”: i.e., a right of the individuals who are the people. It was not meant to protect a right of state governments to control their militias; that right had already been relinquished to the federal government. A “well regulated Militia” is, among other things, one that is not inappropriately regulated. A federal regulation disarming American citizens would have been considered every bit as inappropriate as one abridging the freedom of speech or prohibiting the free exercise of religion. The Second Amendment forbids the inappropriate regulation of weapons, just as the First Amendment forbids inappropriate restrictions on speech and religion.

I saw Professor Lund give a version of this paper at the Federalist Society National Lawyers Convention in November -- very powerful (though obviously subject to debate).   Here is video of the panel discussion.


Mad Dog Mattis, the 7 Year Delay Provision, and the Appointments Clause
Mike Rappaport

President Elect Donald Trump has announced that he will be nominating James “Mad Dog” Mattis to be Secretary of Defense.  However, a statute requires “retired military officers to be out of uniform for seven years before they can become the civilian head of the armed forces.”  While it seems quite possible that Congress will be willing to pass a law exempting Mattis from the requirement, a question is whether the requirement is constitutional.  The main issue is whether the Constitution (1) allows the Congress to establish qualifications for offices or (2) gives to the President and the Senate the full discretion to determine whether someone is fit for office.   

The issue is governed by the Appointments Clause, which provides in relevant part that the President: 

by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.

The argument for concluding that the Congress cannot pass the qualification requirement is that this clause gives to the President and the Senate the decision whether a person is qualified for the office.  The President, with the consent of the Senate, has the power to decide who to appoint for an officer and that includes deciding whether his qualifications are sufficient.  

The counter to this argument is that the Clause does not govern qualifications, but only the selection of a person who has the requisite statutory qualifications.  Congress has the power to set the qualifications for an office based on its authority to “establish . . . by law . . . officers of the United States.”  One might argue that establishing an office includes the power to establish qualifications for the office.  

If establishing an office includes the power to establish qualifications for the office, then the President and the Senate have only the power to determine whether someone, who has the legally required qualifications, is an appropriate person to appoint to the office.  If not, then the President and the Senate can choose who they like, notwithstanding any statutory qualifications.  

It is not entirely clear what the answer is.  Establishing qualifications might or might not fall under the power to establish an office.  My intuition is that there is a bit stronger case for concluding that qualifications are part of the office.  Under that view, then, Congress could establish the binding qualifications. 

Ultimately, answering this question would turn on the history of these matters.  One aspect of the history is that the King of England had the power both to establish the offices and to make the appointments.  This Constitution then split the power between the President (and the Senate) and the Congress.  The question is on what side the power to set qualifications was placed.  Given the fact that the English practice is not that helpful, an examination of the practice in the states prior to the Constitution would be extremely important. 

One interesting implication of this analysis is that the named offices in the Appointments Clause – ambassadors, other public ministers and consuls, judges of the Supreme Court – might be treated differently.  If the Constitution establishes these offices rather than Congress (a possible but not necessary conclusion), then Congress might not be able to establish qualifications for them.

I probably shouldn’t leave this subject without mentioning another possibility.  Perhaps Congress can add qualifications under the Necessary and Proper Clause. Under this view, one would engage in much the same analysis as above, except the focus would be on figuring out whether establishing qualifications falls under the power to appoint or the power to employ necessary and proper means to establishing offices.  In my view, the Necessary and Proper Clause is less important in this context, because the Constitution seems to draw a line between appointing and establishing offices and therefore renders the Necessary and Proper Clause with little to do.  But others may have a broader understanding of the Necessary and Proper Clause than I do.  

Jamal Greene: Rule Originalism
Michael Ramsey

In the current issue of the Columbia Law Review, Jamal Greene (Columbia Law School): Rule Originalism.  Here is the abstract:

Constitutional rules are norms whose application depends on an interpreter’s identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive claim unsettles the frequent assump­tion that the Constitution’s more specific or structural provisions support straight­forward interpretive inferences. Normatively, this Article offers a partial defense of what it calls “rule originalism,” grounded in the fact of its positive practice, its relative capacity for restraining judges, and, above all, its respect for the constitutional choice of rules versus stan­dards. Finally, this Article argues that this limited justification for rule originalism suggests a liberalization of barriers to government institu­tional standing in cases involving the meaning of constitutional rules.

And in conclusion:

One of Professor Alexander Bickel’s most memorable observations was that an apex court should tailor its docket to its mode of inquiry. For Bickel, this meant that a court committed to deciding cases according to principle rather than expediency had to limit its merits decisions in a way that made that high-minded approach possible. As Professor Gerald Gunther archly observed, Bickel’s novelty was “100% insistence on principle, 20% of the time.”

This Article also has argued that a court’s approach to constitutional implementation relates to its docket in surprising ways, but it turns Bickel on his head. Constitutional interpretation in the United States obeys what this Article has called rule originalism. Interpreters tend to pursue originalist methods, narrowly conceived, when they face questions about the meaning of constitutional rules, and they tend to pursue nonori­ginalist methods when they face questions about the application of constitutional standards. The instinct toward rule originalism operates across substance and across judicial ideology. It will usually result in nonoriginalist analysis, but this will not always be so, and it will not be so even in some hard cases. In a sense, the present constitutional culture maintains a twenty-percent insistence on originalism, one hundred per­cent of the time.

This division is best justified on teleological grounds: A static interpretive mode respects the settlement and coordination function of rules, which will often operate to set out the division of powers between government actors. But if originalism is appropriate for constitutional rules, and if the reason it is appropriate for constitutional rules is because it promotes constitutional settlement, some further implications for separation of powers might follow. Specifically, it might follow that courts should more liberally permit government institutional standing to more expeditiously resolve disputes over constitutional rules, lest the executive bias that hangs over historical practice distort constitutional meaning without contributing much epistemic value. This conclusion suggests, paradoxically, that the best reasons for originalism draw on originalism’s capacity for judicial constraint and yet support a functional enlargement of judicial authority.

This was one of the papers presented at the San Diego Originalism Works-in-Progress conference in February.

Also from that conference:

Jeffrey Pojanowski & Kevin Walsh, Enduring Originalism (105 Georgetown L.J. 97 (2016))

William Baude & Stephen Sachs: The Law of Interpretation (Harvard L. Rev., forthcoming)

John Stinneford, The Original Meaning of "Cruel" (Georgetown L.J., forthcoming)



Bryan Wildenthal: End of an Oxfordian Era on the Supreme Court?
Michael Ramsey

Bryan H. Wildenthal (Thomas Jefferson School of Law) has posted End of an Oxfordian Era on the Supreme Court?: Remembering Justice Antonin Scalia (1936-2016) (Shakespeare Oxford Newsletter, Vol. 52, No. 3, p. 9, 2016) on SSRN.  Here is the abstract;    

With the death of Justice Antonin Scalia in February 2016, the U.S. Supreme Court lost one of its most brilliant and controversial justices, and "Oxfordians" lost one of the most distinguished figures ever to support the theory that Edward de Vere, 17th Earl of Oxford (1550-1604), was the true author of the works published under the name "William Shakespeare."

What is even more interesting, and not especially well known among lawyers, legal scholars, or otherwise, is that Justice Scalia was only one of several Supreme Court justices to embrace Oxfordian, or at least "non-Stratfordian" views, on the Shakespeare authorship question (SAQ). "Stratfordian" refers to the prevailing orthodox theory that the author was William Shakspere (as his name was spelled in birth and death records) of Stratford-upon-Avon (1564-1616). Oxfordians (and other non-Stratfordians, some of whom favor other possible authorship candidates) believe that "Shakespeare" was a pseudonym for the true author.

Justice Scalia's 30-year tenure on the Supreme Court coincides with an Oxfordian (or non-Stratfordian) era in which as many as five (and possibly more) justices have embraced such unorthodox views about the authorship of what many view as the greatest canon of literary work in human history.

OK, it's not originalism, but it's good Scalia trivia.


Michael McConnell on the Legality of Brexit
Michael Ramsey

At Defining Ideas, Michael McConnell: A Question Of Prerogative.  From the introduction:

Next week the Supreme Court of the United Kingdom will hear arguments in the most important constitutional case in modern European history. At issue is whether Prime Minister Theresa May has authority to exercise Britain’s right to exit the European Union (EU) without a vote of Parliament. The case is styled Secretary of State v. Miller. ...  On November 3, the British High Court of Justice somewhat unexpectedly held that the Crown—meaning the Prime Minister—lacks authority to effectuate the results of the referendum without parliamentary approval. The government has appealed that decision, both sides have filed briefs, and the case will be argued for four days, beginning on December 5.


The British Supreme Court’s decision thus has enormous practical importance. It is therefore surprising that the legal logic of the case has received so little attention. It may seem presumptuous for an American constitutional scholar to wade into the arcane waters of British constitutionalism, but the Miller opinion rests on fundamental and long-standing legal principles, susceptible to analysis and understanding even by an outsider. I believe the High Court’s decision rests on a mistake. I do not know enough about the jurisprudence of the British Supreme Court, which was formed only in 2009 and has never faced a case of this nature before, to predict whether that court will affirm or reverse. But I do think there are strong grounds for reversal.

And from the core of the argument:

The Miller Court reasoned that Brexit would change domestic law because European laws and regulations would cease to apply when the United Kingdom was no longer part of the Union [Ed.: and therefore it it required an act of parliament] . With due trepidation as an outsider to British constitutional law, this strikes me as logically incorrect.

What happens if the Crown gives notice under Article 50 [of the EU treaty], and Britain ceases to be a member of the European Union? This depends on an interpretation of the ECA [European Communities Act, i.e., the U.K. implementing legislation]. The key language comes from section 2(1) of the Act: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the [EU] Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.”

One possible reading (the more plausible, in my view) is that the rights, obligations, etc. arising “under” the Treaties are applicable in Britain only insofar as Britain is subject to the Treaties. If that is correct, there is no need for the Crown to go to Parliament in order to effectuate Brexit. The ECA already anticipates Brexit, and in the event of withdrawal from the Treaty, European law ceases to apply—not because the Crown has changed the law, but because the provisions of the law are triggered by membership in the EU.

A second possible reading is that the ECA has brought European law into force in Britain, and that it will require an Act of Parliament to repeal it. But this does not mean the Crown lacks power to give notice under Article 50. It merely means that the unmaking of the Treaty will not have full effect without passage of legislation. This is no different from any case in which a treaty calls for a change in law or the expenditure of money. Most treaties are not “self-executing,” but require implementing legislation. Merely because implementing legislation is needed does not mean the Crown cannot enter a treaty. ...

This sounds right to me, and it has significant implications for U.S. constitutional law (which is similarly based on the fundamental proposition that the executive cannot change domestic law).  In particular, it has implications for President Trump's possible withdrawal for various treaty regimes, particularly NAFTA (as discussed here and here).

(Via Instapundit).



The Meaning of Emolument
Michael Ramsey

There's been much talk recently about the foreign emoluments clause, and probably someone has made the following point, but I've not seen it.  The clause provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

I assume for purposes of this post that the clause applies to the President (although, as noted here, Seth Barrett Tillman makes a strong textualist/originalist argument to the contrary).  Applied to President-elect Trump, I assume Trump will not accept any "Office, or Title"; "present[s]" can be dealt with individually and in any event wouldn't encompass his business dealings as a whole.   So the key word is "Emolument."

The modern definition of emolument does not seem to cover anything we should reasonably worry about Trump receiving. Merriam-Webster's Dictionary, for example, defines emolument as "the returns arising from office or employment usually in the form of compensation or perquisites." Dictionary.com has it as "profit, salary, or fees from office or employment; compensation for services."  The Oxford English Dictionary similarly defines emolument as "A salary, fee, or profit from employment or office." (And these definitions are consistent with the way "emolument[s]" is used elsewhere in the Constitution, where it could mean simply salary or other payment for employment.) If that's the right constitutional definition, I don't see what the fuss is about. Trump's business dealings, whatever they may be, don't amount to compensation for employment.

It's often said, however,  that words can change their meanings over time, and this may be an example.  Samuel Johnson's Dictionary (1755) defines "emolument" much more broadly as "Profit; advantage." (And indeed, the modern Merriam-Webster entry linked above gives an "archaic" definition of emolument as "advantage.")  Regardless of what other eighteenth-century dictionaries say (I haven't done an extensive search), the broad definition in Johnson's work seems enough to raise an inference of a broad use in the foreign emoluments clause -- especially since, as a policy matter, it might seem odd to limit the prohibition to gifts and salaries, and the subsequent phrase "of any kind whatever" indicates that in choosing between a narrow and broad meaning, one should choose the broad one.  On this reading, Trump's business dealings might well include "advantages" obtained from foreign states.

So perhaps Trump will need to rely on Professor Tillman's argument after all. But I also like the fact that Trump's opponents will need to rely on an eighteenth century dictionary.