Rob Natelson on the Financial Terms in the Constitution
Michael Ramsey

Rob Natelson (Independence Institute) is guest-blogging at Volokh Conspiracy on the Constitution's financial terms:

The Constitution’s financial terms, part I: Taxes vs. non-taxes

The Constitution’s financial terms, part II: Duties, imposts, excises and tonnage

The Constitution’s financial terms, part III: Direct and indirect taxes

The Constitution’s financial terms, part IV: The apportionment rule

The posts are based on his forthcoming article What the Constitution Means by “Duties, Imposts, and Excises”—and “Taxes” (Direct or Otherwise).


Another Round on Judicial Restraint
Michael Ramsey

At NRO, George Will discusses Randy Barnett's recent speech on the libertarian Constitution:  Republicans’ Judicial Nominees Should Defend the Lockean Conception of Liberty.  In his description:

Barnett, a professor at Georgetown’s law school, recently took to a place that needs it — the University of California–Berkeley — this message: “The judicial passivism of the Supreme Court has combined with the activism of both congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be.”

In his lecture “Is the Constitution Libertarian?” Barnett acknowledged that in many respects American life “feels freer” than ever, and that we have more choices about living as we wish. In many other ways, however, the sphere of freedom is too constricted, and individual rights are too brittle, because for decades America’s Lockeans have been losing ground to Hobbesians: “The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends.”

And in conclusion:

Republican presidential aspirants must be forced to join their party’s intramural argument about the judiciary’s proper function. Then we can distinguish the Lockean constitutionalists from the merely rhetorical conservatives whose reflexive praise of “judicial restraint” serves the progressives’ Hobbesian project of building an ever-larger Leviathan.

Ed Whelan responds: George Will’s Mistaken Critique of Judicial Restraint.  He has various objections but this seems the strongest:

As I’ve explained before, most contemporary conservative proponents of judicial restraint are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question. These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. I don’t see how any conservative could object to that approach (though I of course recognize that there is plenty of disagreement among originalists on what some provisions of the Constitution mean).

At Volokh Conspiracy, Randy Barnett has extensive further thoughts, including:

[Whelan] is among the most thoughtful defenders of “judicial restraint” as something other than what he calls “judicial passivism.” Historically, “judicial restraint” was typically invoked precisely to urge judicial passivism. Whelan is free to revise, update, and repurpose the phrase “judicial restraint” if he likes. But my own sense is that his distinction is largely unknown to many politicians who invoke judicial restraint (or other bromides like “strict construction” or “not legislating from the bench”). They probably don’t know what any of these words mean because they are “lazily” invoking rhetorical boilerplate that does not always, or perhaps even often, mean what Ed Whelan now defines it to mean.

And further: 

I am old enough to remember when [Texas Law Professor] Lino Graglia’s version of judicial restraint was the wholly dominant vision of the role of judges in the Federalist Society. Although Graglia grudgingly allowed for judicial review in principle, he used to delight in saying that there is no law that Congress would actually pass that would justify judicial negation. He was a mainstay at every national student symposium, and he was no originalist. [Judge J. Harvie] Wilkinson is of that school. Times have changed, and not just among “libertarians.”


It really wasn’t until Ed Meese came to Washington that originalism was reinserted into conservative thinking. But Meese’s heroic reassertion of originalism introduced a tension between enforcing original meaning and judicial restraint. Over the years, as originalism has assumed an increasingly powerful hold on the legal culture, this tension has increased to the point were one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism. That is what Whelan is proposing, but at this point, it is more a wish than a reality. Language is stubborn, and the original meaning of judicial restraint is not so easily displaced.

Ed Whelan has a further reply here, including:

Barnett welcomes (or at least accepts) my distinction between judicial restraint (proper deference to a democratic enactment when originalism fails to generate a sufficiently clear answer that the enactment is unconstitutional) and judicial passivism (wrongful deference). He argues, though, that the version of judicial restraint that “used to be the dominant strain in conservative circles” rejected any such distinction, and he is skeptical that judicial restraint can be effectively “redefine[d]” to incorporate that distinction (and thus to be “compatible with originalism”).

I’m dubious of Barnett’s claim that what “used to be the dominant strain” of judicial restraint “in conservative circles” denied a distinction between judicial restraint and judicial passivism. I also think that such a distinction (however labeled) is obviously necessary. Anyone who denies the distinction would believe that the judiciary could never err by determining a democratic enactment to be constitutionally permissible. Who has ever taken that position? (No, not even Lino Graglia, who in any event was never representative of traditional thinking on judicial restraint.)

At Cato on Liberty, Roger Pilon has more: What Should Presidential Candidates Say about Judges? (defending the Will/Barnett view and calling for "a judiciary actively engaged in reading and applying the Constitution as written").

My sense is that there is less of a philosophical dispute here than meets the eye.  Rather, it's a proxy battle over a different proposition (that sometimes shows through): whether the Ninth and Fourteenth Amendments (in their original meaning) license wide-ranging judicial oversight of federal and state laws to protect rights not specifically spelled out in the Constitution.  In that sense, it's not really an argument about interpretive approach -- I think everyone involved agrees with Pilon's proposition at the general level -- but an argument about a particular (though very important) application of that approach.  

This spills over into the recurring judicial restraint debate because Whelan wants to use the positive connotations of restraint as a rhetorical tool against the broad interpretation of the Ninth and Fourteenth Amendments, and Barnett and his allies want to resist that.  But I think it might be better if they just argued about the meaning of the Amendments.

As to some candidates and political commentators, though, I agree that there is a tendency to invoke "judicial restraint" without thinking carefully about what it means (as I've written here).  And I absolutely agree with Professor Barnett that there is a tension between originalism and judicial restraint that one needs to deal with in some way (perhaps, though not necessarily, in the way Ed Whelan deals with it).


Asher Steinberg on Will Baude on Positive Originalism
Michael Ramsey

At the promising new blog The Narrowest Grounds, Asher Steinberg: Why it Doesn't Matter if the Court's Opinions Are Originalist - A Comment on Baude on Originalism (commenting on this paper by William Baude).

It's a long and sophisticated post that can't be fully summarized (except to say that it basically argues (a) originalism isn't our law; and (b) even if it is, so what?).  On the latter point, here is the conclusion, which I think is pretty powerful:

Suppose that everything Baude argues up to this point is right - that originalism is our law, that judges therefore have a duty to be originalist, and that they can only deviate from originalism if they justify the deviation.  So what?  As I understand it, the whole point of the positive turn is to say that the fact that originalism is the law is a powerful reason to do originalism, and to shift the burden to non-originalists to justify alternative methodologies.  But how heavy is that burden?  Baude doesn't say.  Is it something like the burden to overcome stare decisis, or is it just the burden of making a forceful argument?  If the latter, it must be said that non-originalists have all kinds of forceful arguments for rejecting originalism.  They may not be right, but they're serious enough to cause people like Baude to despair of proving originalism right normatively or conceptually and to make the positive turn.  

It's difficult, then, to see why it matters if there's some burden on non-originalists to justify a change; they can just make the same arguments against originalism that they've been making for the last 40 years.  If one were to claim that the burden's a high one, that claim would be inconsistent with the general positivist tenor of Baude's argument, as I'm aware of no actual American legal practice that forbids changes in interpretive methodology absent compelling justification.  To the contrary, it is a practice of ours to undertake rapid and cataclysmic change in interpretive methodology without always giving very much reason, particularly in the world of statutory interpretation.  In any event, once a change is made, rightly or wrongly, positivism will call that change the law.  Ultimately, then, hanging a burden on non-originalists to justify non-originalism doesn't do much to avoid normative and conceptual debates over interpretive methodology.

I have a somewhat similar reaction to the paper, albeit from a slightly different perspective.  Suppose it were the case that non-originalism were our law?  Non-originalists like to claim it is, and that therefore we must accept it, in a sort of mirror image of Professor Baude's paper; I think they're wrong as a descriptive matter, but let's assume they're right on the first point.  Would that mean originalists have to concede defeat?  Of course not.  If the Court's current interpretive practices are normatively bad, we should change them.  The same goes for originalism.  Whether it's the law or not (or, more precisely, whether it describes Supreme Court practice or not), it has to justify itself normatively or it should be abandoned.  Part of its justification might be (if true) that it's something we've consistently done, but (like Steinberg) I think that carries minimal weight.

RELATED:  At Balkinization, Stephen Griffin also has some thoughts on Professor Baude's paper (among other things) in the concluding post in his series on orignialism and non-originalism.


A Nonoriginalist Challenge to Birthright Citizenship for Illegals: A Nonoriginalist Interpretation
Mike Rappaport

In two prior posts on the Liberty Law Blog, I argued 1) for a large amount of legal immigration and 2) that the original meaning of the Fourteenth Amendment confers birthright citizenship, even on  the children of illegal immigrants.

Here, though, I want to present a nonoriginalist interpretation of the Fourteenth Amendment's Citizenship Clause – one that would deny birthright citizenship to the children of illegal aliens. My principal aim in this exercise is to make a point about nonoriginalism: while many advocates of nonoriginalism seem to believe that nonoriginalism only leads to more rights of the type that they like, this is not true. While most advocates of nonoriginalism probably favor birthright citizenship, nonoriginalists should see that the original meaning here supports a result they like, whereas nonoriginalism allows a strong argument for a result they dislike. (It is also worth noting to originalists that nonoriginalism may sometimes support results they like.)

While the language “subject to the jurisdiction thereof” might have the original meaning as I mentioned in my previous post, it could also be understood as meaning  “subject to the exclusive jurisdiction of the United States.” Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world, but of noncitizens mainly in their own territories. Thus, the children of solely American citizens born in the United States are exclusively subject to the jurisdiction of the United States. No other country has jurisdiction over them. By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country. This interpretation, then, has the consequence that the children of foreign citizens, both legal and illegal, would not be citizens at birth under the Fourteenth Amendment.

This reading of the text is by no means perfect. The biggest problem is that the text does not say “exclusive jurisdiction,” only “jurisdiction.” But that is not such a big problem for a nonoriginalist.  A term like “jurisdiction” might easily be understood to refer to “exclusive jurisdiction.” The nonoriginalist would argue that sometimes people use terms loosely. For example, we sometimes use the term “property” even though we mean “real property.” While an originalist (especially a textualist originalist) would regard this loose construction as seriously problematic, a nonoriginalist would often not.

The interpretation I offer here is similar to the (originalist) view of John Eastman, but I prefer it to Eastman's.  See the bottom half of this post.    

In my next post, I will present some of the nonoriginalist arguments that can be made in favor of this interpretation.

Samuel Bray: “Necessary AND Proper” and “Cruel AND Unusual”
Michael Ramsey

Samuel L. Bray (UCLA School of Law) has posted “Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution (Virginia Law Review, Vol. 102, 2016) on SSRN.  Here is the abstract:      

Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect.

This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense.

To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.


William Baude: Is Originalism Our Law?
Michael Ramsey

William Baude (University of Chicago - Law School)  has posted Is Originalism Our Law? (115 Columbia Law Review (2015), forthcoming) on SSRN. Here is the abstract:      

This Essay provides a new framework for criticizing originalism or its alternatives --- the framework of positive law. 

Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what is? Answering this question can reorient the debates and allow both sides to move forward. 

If we apply this positivist framework, there is a surprisingly strong case that our current constitutional law is originalism. First, I argue that originalism can and should be understood inclusively. That is, it permits doctrine like precedent if those doctrines can be justified on originalist grounds. Second, I argue that our current constitutional practices demonstrate a commitment to inclusive originalism. In Supreme Court cases where originalism conflicts with other methods of interpretation, the Court picks originalism. By contrast, none of the Court’s putatively anti-originalist cases in fact repudiate originalist reasoning. These judicial practices are reinforced by a broader convention of treating the constitutional text as law and its origin as the framing. So while constitutional practice might seem, on the surface, to be a pluralism of competing theories, its deep structure is in fact a nuanced form oforiginalism.

Third, I suggest that originalism’s positive legal status has important normative implications for today’s judges. Judges promise to follow the law, and their judicial authority is premised on the assumption that they do. So if an inclusive version of originalism is the law, judges ought not be the ones to change it. Courts ought to privilege our current legal conventions over academic theories that are anti-originalist and against narrower forms of originalism as well.


A Non-Member Speaker in 18th Century Britain and under the U.S. Constitution (Part II)
Seth Barrett Tillman

At the opening of Parliament, the Lord Chancellor (in the King’s name) commanded the Commons to choose a Speaker. The Chancellor (again, in the King’s name) also commanded the Commons to choose “one of their members” for that position. See Henry Elsynge, The Manner of Holding Parliaments in England 155 (London, printed by Richardson and Clark for Tho. Payne 1768) (1st print 1660) (at the opening of a new Parliament “the lord chancellor confers first with his majesty, and then in his name commands the commons to assemble in their house, and to choose one of their members to be their speaker” (bold added)); George Petyt, Lex Parliamentaria: or, A Treatise of the Law and Custom of Parliaments 265 (London, Henry Lintot 3d ed. 1748) (same).

First, it is possible that this second command (in regard to choosing a Speaker from among the members) was implicit in the first command (to choose a Speaker). In other words, the selection of a member might have been understood as implicit in the meaning of the term “Speaker”.

Second, even if the meaning of “Speaker” was not understood as being a person necessarily selected from among the members, it is also possible that this second command (in regard to choosing a Speaker from among the members) merely announced a free-standing background mandatory legal convention which was widely understood and shared.

Both of these two hypotheses are possible.

But there is no good reason to favor one over the other, nor is there any good reason to assume either is presumptively correct. Indeed, I could just as easily argue that the very fact that the Chancellor had to command the selection of a Speaker from among the members indicates that that members would otherwise have been free to select anyone at all.

Of course, I cannot entirely rule out redundancy. The Chancellor’s statement might have merely announced what everyone knew to be an established legal convention (rather than an a mere expectation or aspiration). But I have no reason to assume redundancy. Again, I could just as easily hypothesize that the restriction on the House’s choice might have reflected a free-standing restriction imposed by the King on the House of Commons, and absent that express imposition at the opening of Parliament, this restriction was not otherwise a mandatory component of lex parliamentaria.

To put it another way, our Constitution has maintained only the tradition of expressly commanding the members to choose a Speaker, but it broke with the extant tradition of expressly commanding the members to select only a member. This might represent a rejection of the background legal convention (even assuming it existed).

 Likewise, one could also take the view that the British background legal convention (assuming it existed) might have been dependent on other extant correlative British parliamentary conventions which do not exist in our system.

 For example, the (purported) British background legal convention (i.e., only a member may be speaker) depended on the monarch’s summoning Parliament into existence, on the monarch’s having the prerogative to prorogue Parliament’s (and each house’s) sessions, on the monarch’s having the prerogative to terminate a (particular) Parliament’s existence, and also on the monarch’s having the prerogative to reject the popular house’s choice of Speaker. The monarch’s greater power to reject the Commons’ choice of Speaker includes the monarch’s lesser power to limit the members’ choice to a sitting member. But the President of the United States does not enjoy this greater power; the President has no power to reject the House’s choice of Speaker.

 Moreover, our Constitution has no monarch; our Constitution has no rich tradition of the executive magistrate exercising prerogative-like powers in relation to Congress, and, finally, the Constitution (substantially) broke with all these specific British parliamentary conventions. So there is no presumption or reason to maintain that the Constitution singularly retained the particular background foreign legal convention at issue here (even assuming that there was a background British legal convention limiting the choice of Speaker to a member).

 The fact that every English and British parliament since Montfort’s parliament had a member-speaker, along with every (colonial and state) 18th century New World popularly elected assembly (or if bicameral, then in its larger popular assembly), does not establish the existence of a background mandatory legal convention in regard to our Constitution. The fact that a practice is maintained and adhered to only establishes that positive law was never needed to regulate the members in such circumstances. But life and law are full of cultural conventions and folkways which are adhered to and so never made a subject of positive law. The widespread adherence to such nonlegal cultural conventions and folkways does not mature into self-limiting and self-fulfilling inexorable legal obligations and commands, much less constitutional commands. See, e.g., Thomas Jefferson, A Manual of Parliamentary Practice (Washington, John Milligan & William Cooper 2d ed. 1812):

The House of Representatives shall ch[oo]se their Speaker and other officers. Constitution I. 2. When but one person is proposed, and no objection made, it has not been usual in Parliament to put any question to the House; but without a question, the members proposing him conduct him to the chair. But if there be objection, or another proposed, a question is put by the clerk. 2. Hats. 158. As are also questions of adjournment. 6 Grey. 406. Where the House debated and exchanged messages and answers with the king for a week, without a Speaker, till they were prorogued. They have done it de diem in diem for fourteen days. 1. Chand. 331. 335.

Id. § 9 (explaining the procedure for selecting a Speaker). Notwithstanding his frequently relying on Elsynge, Jefferson makes no mention of any limitation in regard to whom the House may select.

It is all too easy to confuse our own modern expectations as the expectations of the Framers and Ratifiers, and then to further expand their purported views into actual legal commands. But such historical fictions in the name of the Constitution impose on the democratic components of the Constitution and undermine the rule of law.

Our written Constitution states: “The House of Representatives shall ch[oo]se their Speaker and other officers.” And that is all it states.

[For a different view of the Elsynge-Petyt materials see Mike Rappaport, The Speaker of the House of Commons Appears to Have Been Required to Be a Member.]

Tara Helfman Reviews Eric Nelson's "The Royalist Revolution"
Michael Ramsey

In the Harvard Law Review, Tara Helfman (Syracuse): Crown and Constitution (reviewing Eric Nelson, The Royalist Revolution [Belknap Press 2014]).  From the introduction:

Professor Eric Nelson’s provocative new work, The Royalist Revolution: Monarchy and the American Founding, represents an important contribution to our understanding of the framing of the Article II powers of the Presidency. It argues that these powers found their earliest iteration during the imperial crisis of the 1760s and 1770s, when the very people who would eventually become leaders of the Revolution sought relief from the excesses of parliamentary rule in the revival of royal authority. Nelson argues that from the Stamp Act Crisis of 1765 through the final months leading to the Declaration of Independence, “patriot royalists” such as John Adams, Alexander Hamilton, and James Wilson urged George III to revive the prerogative powers of the Stuart kings in defense of the colonies. They called upon the Hanoverian king to do as his Stuart predecessors had done — to treat the colonies as his personal dominions and exercise the royal negative to reject bills that violated their traditional rights. According to Nelson:

[T]he turn to the royal prerogative was the formative moment in the history of what would emerge as American constitutionalism. The very same principles that had underwritten the patriot campaign to rebalance the imperial constitution in favor of the Crown demanded in 1787 the creation of a recognizably Royalist constitution for the new United States. This constitution would exclude the office of king — . . . the particular brand of republican political theory that had been unleashed in the colonies in the early months of 1776 required as much — but it would assign its rechristened chief magistrate far more power than any English monarch had wielded since William of Orange landed at Torbay in 1688. (p. 7)

In this sense, President George Washington had more in common with King Charles I than with King George III, and this was by design.

This Review begins with a brief overview of the way historians have treated the ideas of the American Revolution, noting how Nelson’s thesis challenges the prevailing view, advanced most notably by Professor Bernard Bailyn, that the American Revolution was essentially republican in character. It then discusses what Nelson terms the “Neo-Stuart” account of the British constitution, which emerged in the colonies during the 1760s and 1770s. On this account, the crisis of empire could be resolved by restoring to the monarchy the discretionary powers enjoyed by the early seventeenth-century Stuart kings. The Review then considers Nelson’s arguments regarding the impact of eighteenth-century republican theory on patriot-royalist theorists. Finally, it concludes by examining the way arguments over the proper role of the King in the British constitution shaped the framing of executive power in the Constitution of 1789. It attempts throughout to do justice to Nelson’s sophisticated account while bearing in mind the particular interests of the law review readership.

Professor Nelson has a response here,which begins: "I am deeply grateful to Professor Tara Helfman for her rich and generous review of my book. Indeed, she has explained the historiographical issues at stake with such skill that I am left with scarcely anything to say in reply. I do, however, wish to address briefly the two reservations that she offers at the end of her essay."

And here is a description of Professor Nelson's book from Amazon:

Generations of students have been taught that the American Revolution was a revolt against royal tyranny. In this revisionist account, Eric Nelson argues that a great many of our “founding fathers” saw themselves as rebels against the British Parliament, not the Crown. The Royalist Revolution interprets the patriot campaign of the 1770s as an insurrection in favor of royal power―driven by the conviction that the Lords and Commons had usurped the just prerogatives of the monarch.

Leading patriots believed that the colonies were the king’s own to govern, and they urged George III to defy Parliament and rule directly. These theorists were proposing to turn back the clock on the English constitution, rejecting the Whig settlement that had secured the supremacy of Parliament after the Glorious Revolution. Instead, they embraced the political theory of those who had waged the last great campaign against Parliament’s “usurpations”: the reviled Stuart monarchs of the seventeenth century.

When it came time to design the state and federal constitutions, the very same figures who had defended this expansive conception of royal authority―John Adams, Alexander Hamilton, James Wilson, and their allies―returned to the fray as champions of a single executive vested with sweeping prerogatives. As a result of their labors, the Constitution of 1787 would assign its new president far more power than any British monarch had wielded for almost a hundred years. On one side of the Atlantic, Nelson concludes, there would be kings without monarchy; on the other, monarchy without kings.


Michael Clemente: A Reassessment of Common Law Protections for "Idiots"
Michael Ramsey

In the Yale Law Journal, Michael Clemente (Yale Law School '16) has a note titled A Reassessment of Common Law Protections for "Idiots".  Here is the abstract:

When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.” This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow. It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities. Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.

An outstanding student note.  For what it's worth, winner of Yale's  2015 Burton Award for Distinguished Legal Writing.


Harlan Cohen: Zivotofsky II's Two Visions for Foreign Relations Law
Michael Ramsey

Harlan Grant Cohen (University of Georgia School of Law) has posted Zivotofsky II's Two Visions for Foreign Relations Law (109 AJIL Unbound 10 (2015)) on SSRN.  Here is the abstract:      

The five opinions in Zivotofsky v. Kerry – four by the Supreme Court’s Republican-nominated Justices – exposed fault-lines over foreign relations law that have remained hidden in many of the Court’s other cases. This short essay, part of an AJIL Unbound Agora on the case, explores the most notable of these fissures – that between Justice Kennedy, who wrote the majority opinion, and Chief Justice Roberts, who dissented. Their disagreement in this case highlights the two Justices’ very different visions of U.S. foreign relations law and reveals the dynamic that has defined the direction of the Court over the last ten years. The relationship between Justice Kennedy and Chief Justice Roberts has been the fulcrum on which the Court’s foreign relations opinions and posture has turned and is likely to turn for some time to come.