Oral Argument in the Amish Beard Cutting Appeal
Michael Ramsey

The Sixth Circuit hears oral argument today in U.S. v. Miller, the Amish beard-cutting case.  Jonathan Adler has this extended discussion: How the Justice Department is using the Commerce Clause to criminalize forcible beard cutting as a federal hate crime.  As he explains:

According to the Justice Department, the defendants crimes are subject to federal prosecution under the hate crimes statute because the shears and scissors used in the assaults had previously crossed state lines because they were manufactured in another state and because the defendants rode in cars to the scenes of the attacks.  ...

Pause for a minute and consider the implications of the government’s argument as upheld by the district court.  Under the Justice Department’s theory of jurisdiction, any time an individual rides in a car to or from the scene of a crime, that criminal act may be subject to federal prosecution, provided Congress has enacted a relevant statute.  Under the government’s theory once a potential weapon has “traveled in interstate commerce” ... any violent act for which it is used may become a federal crime, whether or not the criminalized conduct substantially has any genuine relationship to commerce (let alone the substantial relationship the Supreme Court’s decisions require) or whether the relevant statute regulates economic activity. ...

... In other words, the government’s theory of the case implies a nascent federal police power that follows any and all items that have, in the government’s words, “traveled in interstate commerce.”  This is a power without meaningful limits.

I previously wrote about this case here, here and  here.  As noted in the post at the last link, Michael Rosman and the Center for Individual Rights are representing Miller in the appeal.  Here is the government's response brief, and here is the defendant's reply.  (Thanks to Michael Rosman for the links).

The case is potentially a very big deal for federalism.  As the briefs make clear, the government really is claiming that Congress' commerce power allows it to regulate any use of any article that at any point traveled in interstate commerce, and (apparently, although this is a little less clear) any activity that invovles traveling by car.  As the defendant's reply begins:

In her opening brief ... Kathryn Miller pointed out that the Government’s theory of national power would lead to the conclusion that Congress could set speed limits through local towns and enact other local traffic regulations; pass laws on the use of bicycle helmets; criminalize local petty crimes in which some car, bicycle, bus, knapsack, purse, or other “device” capable of transporting someone or something over a state line (regardless of whether it ever had) was used; and regulate the use of any object that ever had crossed a state or national boundary and the conduct of any person that had ever crossed a state line in their lives. 

Remarkably, the Government disputes none of this. To the contrary. It argues for a national power just that broad, stating only that “there is a difference between the potential scope of Congress’s power and the exercise of that power.” Brief of the United States (“Govt. Br.”) 99-100. In short, the Government asks this Court to take comfort in, as Justice O’Connor famously put it, Congress’s “underdeveloped capacity for self-restraint.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 588 (1985) (O’Connor, J., dissenting).

Professor Adler suggests a the possibility of a narrow holding for the defense:

The Supreme Court’s recent opinion in Bond v. United States and the hate crimes act’s inclusion of a jurisdictional element [that the acts must "affect interstate commerce"] suggest another approach the Sixth Circuit could take.  In Bond, as here, the federal statute at issue applied to a wide range of conduct traditionally subject to control under state criminal law.  In addition, the criminal defendant’s specific conduct was not the sort that would normally justify federal action. As a consequence, not a single justice was willing to uphold the conviction. Yet rather than invalidate the statute, the majority read it narrowly.  As the Chief Justice explained:

Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach.

To endorse the government’s reading of the statute at issue would be to sacrifice principles of federalism and enumerated powers.

I agree, and I'd add that this approach would make Bond appear a more important holding that many commentators have suggested.

Randy Barnett: The Wages of Crying Judicial Restraint
Michael Ramsey

Randy Barnett (Georgetown University Law Center) has posted The Wages of Crying Judicial Restraint (Harvard Journal of Law and Public Policy, Vol. 36, pp. 925-933, 2013) on SSRN. Here is the abstract:    

Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.

The first version of federalism is the pre‐New Deal version. This version affirms that the Constitution established a national government of limited and enumerated powers, that those powers should be interpreted according to their original meaning, and that much of what the federal government tried to do before the New Deal, and did during the New Deal and after, is unconstitutional.

The post‐New Deal vision of federalism has been interpreted by progressives, quite beyond what the Court has actually said, as repudiating the idea that the Constitution enumerates certain limited congressional powers and that these limits are to be enforced by the courts. This progressive vision of the post‐ New Deal federalism essentially says that Congress has the plenary power to legislate as it will with respect to the national economy. Put another way, the Commerce and Necessary and Proper Clauses combine to create a “National Problems Power” vested in Congress.

Because most law professors held this vision of the New Deal, it came as quite a shock to them when the Rehnquist Court established the New Federalism. The New Federalism established the proposition that there were limits that were compelled by what Chief Justice Rehnquist referred to as “first principles” of constitutional government. That these limits would be enforced by the Court seemingly rejected and repudiated the progressive vision of the post‐New Deal constitutionalism that, up to that point, had seemed orthodoxy.


Lawrence Solum: The Positive Foundations of Formalism
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted The Positive Foundations of Formalism: False Necessity and American Legal Realism (Harvard Law Review, Vol. 127, No. 8, p. 2464, 2014) on SSRN. Here is the abstract: 

"The Positive Foundations of Formalism: False Necessity and American Legal Realism" explores the relationship between claims that judging is inherently political or ideological and contemporary studies of judicial behavior. These themes are developed in the context of a review of "The Behavior of Federal Judges" by Lee Epstein, William M. Landes, and Richard Posner. 

In this review, I begin in Part I with the book’s core, situating Behavior of Federal Judges’ empirical findings in the context of the evolution of the attitudinal model and the emergence of empirical studies of judicial behavior that emphasize the role of law as an important causal factor. Part II is about microfoundations. Behavior of Federal Judges offers a rational choice account theory of the causal mechanisms that determine judicial behavior in the form of a labor economics model — judges are viewed as agents of a diffuse principal whose preferences range over their income and the satisfactions obtained from the various ways in which they spend their time. 

In Part III, the review then takes a step back from the details of Behavior of Federal Judges’ empirical and theoretical account and engages the fundamental issues at stake — the questions raised by the debate between formalists and realists. Behavior presents itself as a purely positive account: “Ours is strictly a positive analysis. We do not ask how judges should decide cases but how they do decide them — more broadly, how they do their judicial work (which is not limited to casting votes in cases).” (pp. 5-6) Implicitly, Behavior assumes that the empirical findings and rational choice models show that judging is an inherently realist enterprise — not only does ideology partially determine judicial behavior, it does so necessarily. But this assumption is undermined by Behavior’s empirical findings. In fact, Epstein, Landes, and Posner provide strong evidence that that these claims (that judging must be political) involve false necessity. Putting this same point positively, Behavior provides evidence that legal formalism is possible — inside the feasible choice set and not mere “pie in the sky.”


Ben Cassady: Why the Disqualification Clause Doesn't (Always) Disqualify
Michael Ramsey

Ben Cassady (Yale Law School '13) has posted 'You've Got Your Crook, I've Got Mine': Why the Disqualification Clause Doesn't (Always) Disqualify (Quinnipiac Law Review, Vol. 32, No. 209, 2014) on SSRN. Here is the abstract:    

Alcee Hastings was impeached, convicted, and removed from the federal bench. He later ran for Congress, won, and was seated without controversy. But what if the Senate had instead imposed the ultimate political death sentence for a federal officer: "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States"? Had Hastings been impeached, convicted, AND disqualified, would he still have been able to take his seat in the House? Should he have been able to do so?


This Article argues that, for reasons of history, structure, and institutional practice, the Disqualification Clause should not be read to apply to legislative seats. While an impeached, convicted, and disqualified President, department head, or judge may be disqualified from ever again serving in the executive or judicial branches, he cannot be barred from serving in the House or the Senate after his voters have knowingly pardoned him.

Update: Thomas Porteous, a former federal district court judge for the Eastern District of Louisiana, was impeached, convicted, and disqualified for corruption in 2010. He is only the third official (and the only living one) to be punished by disqualification, and thus the only potential beneficiary of this paper's arguments should he develop federal political aspirations. Page 216 (fns. 35-36), however, omit Porteous, and should read that the Senate has imposed this punishment three times (not twice.) Much thanks to Seth Barrett Tillman for pointing this out.

Thanks to Seth Barrett Tillman for the pointer.


Brian Slocum: The Ordinary Meaning of Rules
Michael Ramsey

Brian G. Slocum (University of the Pacific - McGeorge School of Law) has posted The Ordinary Meaning of Rules (Problems of Normativity, Rules and Rule-Following (Springer 2014)) on SSRN. Here is the abstract:

Judges typically claim that rules contained in legal texts are interpreted in accordance with their ordinary meaning. It follows that the constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are of crucial importance to the interpretation of legal texts. While a comprehensive analysis of these questions is beyond the scope of this chapter, it is possible as well as important to outline how such questions must necessarily be approached. Certainly, there are a variety of ways in which courts habitually go beyond or reject the linguistic meaning of the relevant text. Normatively based desires to, for example, ensure fair notice or avoid constitutional questions may cause a court to give a text a legal meaning that does not correspond with its linguistic meaning. The ordinary meaning principle, though, is necessarily concerned with the linguistic meaning of the text and not normative matters. As such, certain views about meaning and interpretation can be rejected as being incorrect. In particular, certain claims made by actual intentionalists are fundamentally inconsistent with how the ordinary meaning doctrine must be conceptualized. In short, the intentionalist position that a text means what its author intended it to mean, as well as the associated claims about the nature of natural language that often accompany this assertion, must be rejected. Instead, the ordinary meaning doctrine must be explicated on the basis of systematicities and conventions of language.


More Reader Thoughts on Natural Born Citizens (part 2)
Michael Ramsey

Reader William Rawle, who commented earlier on the original meaning of "natural born Citizen," sent these further useful thoughts:

While I believe there was no great public debate over the terms citizens versus subjects [Ed.: see his previous thoughts here]  that doesn't mean that there were not debates over what constituted a member of the new Republic.  Much like the question of whether expatriation is a natural right requiring no Congressional approval or a right that can only be granted by an act of Congress, opinions on how someone became a citizen of the United States varied.  
In my opinion, this is best exemplified by the case in Congress of the election of William L. Smith (Ramsay vs. Smith) .  The case can be read here.
Pay special attention to James Madison's speech about citizenship and allegiance and Representative James Jackson's rebuttal.  Also Dr. Ramsay's dissertation prepared as part of his election challenge is available here.
I know you are familiar with William Rawle's "A View of the Constitution of the United States" but are you also familiar with Judge Samuel Roberts' "Digest of Selected British Statutes..." (Roberts' Digest)?  On page 26 he says, "The children of aliens, born within the U.S. are aliens; they do not acquire citizenship by birth".
Apparently, even the Founding generation wasn't sure what constituted a "natural born citizen".  Which might explain apparently contradictory statements.
My thanks again for contributions on this issue.  I knew about Ramsay (no relation) and tend to consider him an outlier and an advocate for a particular policy position.  Madison's contra argument seems stronger.  But the Roberts work (published in 1817) is interesting.  Roberts is very confident and doesn't appear to have much stake in the matter, but cites nothing and doesn't give any details, and it's not clear if he is talking about the law of Pennsylvaia or U.S. law generally.  (According to the title page, Roberts was the President of the Court of Common Pleas of the Fifth Judicial District of Pennsylvania, a point confirmed here).  I'm not sure how persuasive this is, but it does show some evidence that the uncertainty about children of aliens born in the U.S. -- noted much later in Minor v. Happersett -- did reach back (to some extent) at least to the early nineteenth century.
Mr. Rawle adds:
One last point, I agree with Hamilton, who in a 1795 legal brief on carriage taxes began by lamenting the lack of a clear definition of direct and indirect taxes in the Constitution,
"What is the distinction between direct and indirect taxes? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any antecedent settled legal meaning to the respective terms—there is none."  And ends the brief by saying, "...where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”
I believe we should apply the same standard to "natural born Citizen" and look for its definition in the language of the English legal system.  The only question to me is did he mean both the Common Law and Statutory Law?
I agree.  I assume Hamilton meant both common law and statutory law, as applicable.  David Ramsay argued that Vattel was a better guide, but I think not, absent some indication that the framers had Vattel in mind on this point.  It would be interesting, though, to know what Judge Roberts was relying on.

Emily J. Barnet: Hobby Lobby and the Dictionary Act
Michael Ramsey

In the Yale Law Review Forum, Emily J. Barnet (Yale Law School JD '15) has the essay Hobby Lobby and the Dictionary Act (124 Yale L.J. F. 11 (2014)). Here is an excerpt:

Before the end of this month, the Supreme Court will decide Sebelius v. Hobby Lobby Stores, Inc. and in so doing will determine whether the Religious Freedom and Restoration Act (RFRA) exempts from the Affordable Care Act’s (ACA) contraception mandate closely held, for-profit companies whose owners oppose contraception on religious grounds. RFRA states that “[the] Government shall not substantially burden a person’s exercise of religion.” A central issue in the case is whether corporate entities are “persons” covered by RFRA. That is, does RFRA extend religious freedoms to for-profit corporations?

The debate over how best to answer this questionhas largely overlooked the opportunity the case presents for the Court to resolve a longstanding problem of statutory interpretation: how courts should determine when to apply the U.S. Code’s Dictionary Act. The Dictionary Act, enacted in 1871, instructs courts to apply to all federal statutes definitions of certain common words (including “person”) and basic rules of grammatical construction (such as the rule that plural words include the singular) “unless context indicates otherwise.” The Act’s legislative history suggests that its purpose was “to avoid prolixity and tautology in drawing statutes and to prevent doubt and embarrassment in their construction.” However, in line with general trends in statutory interpretation, courts have applied the Act inconsistently for the past century. The courts’ characterizations of the Dictionary Act have ranged from a tool of last resort10 to a presumptive guide.


Abbe Gluck on Canons of Inerpretation
Michael Ramsey

At Balkinization, Abbe Gluck: What Bond, Pom Wonderful, and Abramski Have In Common:  The Enduring Mystery of the Canons of Statutory Interpretation.

New Digital Database on Colonial Appeals
Michael Ramsey

Mary Sarah Bilder (Boston College) sends this press release:

Colonial Appeals Annotated Digital Catalogue Launched

In recognition of the three-hundred anniversary of the accession of George I, the Ames Foundation announces a new electronic resource: Appeals to the Privy Council from the American Plantations: An Annotated Digital Catalogue. For the first time in centuries, the site makes accessible the important appellate cases that helped to define constitutional law before the creation of the United States Supreme Court.

The British Privy Council heard appeals from the 13 colonies that became the United States and from the other colonies in Canada and the Caribbean. Over 800 cases were appealed from the colonial supreme courts. Nearly one-third of these cases came from the thirteen colonies that became the United States. The site provides links to original documents for these appeals available in England and the United States. Most significantly, it includes images of surviving briefs filed in 54 of these appeals. These briefs—known as “printed cases”—provide the reasons for the appeals. The reasons reveal the principles underlying colonial constitutional law and eighteenth-century British common and statutory law.

The innovative site—an Annotated Digital Catalogue—combines the strength of print bibliographies with new digital technologies. The catalogue of appeals is annotated and contains links to other resources. The digital format permits flexibility in access and direct viewing of all documents. In addition to an Introduction, the ADC includes a Memorandum for students and enthusiasts, which offers advice on how to use the Catalogue for developing a course paper or for advancing research in the field.

The Colonial Appeals ADC will eventually expand to incorporate appeals from Canada and from the Caribbean. Preliminary lists of these appeals are included. This site is one of several complementary international projects investigating previously unpublished Privy Council cases from Australia, India, and the British colonial possessions generally.

The UK Judicial Committee of the Privy Council retains appellate jurisdiction over certain territories, Crown dependencies, and Commonwealth countries. The Colonial Appeals ADC emphasizes the historical continuity of this important judicial institution.

The creators of the Colonial Appeals ADC are Sharon Hamby O’Connor, Professor Emerita, and Mary Sarah Bilder, Professor and Lee Distinguished Scholar, of Boston College Law School, with the considerable assistance of Charles Donahue, Paul A. Freund Professor, Harvard Law School. The project is an online publication of the Ames Foundation. Additional assistance was provided by Boston College Law School and Harvard Law School.

The database is available here.


More Reviews of Murphy on Scalia
Michael Ramsey

Three reviews, none too favorable, of Bruce Allen Murphy's Scalia: A Court of One:

Joshua Hawley (University of Missouri Law School), in the Wall Street Journal: Three decades after Scalia joined the court, originalist analysis is a mainstay of its opinions, among liberal and conservatives.

In the Washington Post, Seth Stern: The conservative justice liberals love to loath.  From the conclusion:

It is still too soon to gauge the full legacy of Scalia, who, at 78, has given no indication that he plans to retire anytime soon. If nothing else, he surely deserves credit as a pitchman for his originalist approach to constitutional interpretation. Whatever you think of its merits, his brand has won in the marketplace of ideas. Major battles, such as the 2008 District of Columbia v. Heller gun rights decision, are often fought on his terms, with both sides arguing over what the founders meant.

Via Ed Whelan at NRO (here and here), who also has a review in the print version of National Review (subscription required for online access, excerpts at NRO here).

RELATED:  In The New Yorker, Jeff Shesol: Scalia's Word Games (principally discussing this week's opinion in Abramski v. United States).  As an aside, Abramski -- which involved the question of what it means to be a "purchaser" of a gun -- seems an especially difficult case that shows textualism cannot make every case an easy one.  No serious textualist thinks otherwise.  Shesol, however, seems to think that makes the whole enterprise of textualism a fraud, as if it were always the case that text could mean anything, according to one's political preferences.