Steven Calabresi & Gary Lawson: The Rule of Law as a Law of Law
Michael Ramsey

Steven G. Calabresi (Northwestern University - School of Law) and Gary Lawson (Boston University School of Law) have posted The Rule of Law as a Law of Law (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, and indeed the entire scheme of enumerated powers are all infused with standards, largely through the Constitution’s implicit incorporation of fiduciary norms as a background principle of interpretation. The Constitution often prescribes rules, but it often does not. The law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law.


John McGinnis Reviews Richard Epstein's "The Classical Liberal Constitution"
Michael Ramsey

In the Wall Street Journal, John McGinnis reviews The Classical Liberal Constitution.  The full article requires a subscription, but Professor McGinnis discusses it at Liberty Law Blog (including a notable criticism of Epstein on the Second Amendment).

Michael Perry: Abortion
Michael Ramsey

Michael J. Perry (Emory University School of Law) has posted Abortion on SSRN.  Here is the abstract:

In this paper, I discuss the criminalization of abortion both as a human rights issue and, especially, as a constitutional issue.

Governments are free, insofar as internationally recognized human rights are concerned, not to ban abortion. The serious question, which I address in this paper, is whether governments are also free, insofar as international human rights are concerned, to ban abortion. In particular: Is it a violation of a woman’s human rights for a country to ban abortion? One of the world’s most important human rights NGOs — Human Rights Watch — has answered in the affirmative.

Whatever the answer to the preceding question, a different question remains, and it is one of the most perennially contested questions in American constitutional studies: Were the Abortion Cases correctly decided?

Of all the constitutional rulings by the Supreme Court since the end of the Second World War, none have been more persistently controversial than the Court’s rulings, in 1973, in the Abortion Cases: Roe v. Wade and Doe v. Bolton. In Roe, the Court invalidated a Texas law that banned all abortions except those necessary to save the life of the mother. The Georgia law at issue in Doe was more permissive; it exempted abortions necessary “because (1) a continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) the pregnancy resulted from forcible or statutory rape.” Nonetheless, the Court invalidated the Georgia law. In 1992, four Supreme Court justices voted to overrule the Abortion Cases; a bare majority of the Court — five justices — refused to go along. In 2014, over forty years after the Court’s rulings in the Abortion Cases, four justices, given the opportunity, would almost certainly vote to overrule the Abortion Cases: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The conclusion I reach in this paper — that the Supreme Court’s ruling against the Texas law, but not its ruling against the Georgia law, was warranted — is, of course, controversial: Many insist that both rulings were warranted; many others, that neither ruling was warranted. Although controversial, the position at which I have arrived brings me into alignment—for me, comfortable alignment — with the position espoused by Justice Ruth Bader Ginsburg in 1985, when she was a judge of the United States Court of Appeals for the District of Columbia Circuit: In the Abortion Cases, then-Judge Ginsburg wrote, the Supreme Court should not have “gone beyond a ruling on the extreme [Texas] statute before the Court...Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

This paper is one of a several connected papers that I have posted to SSRN in the last nine months, discussing “human rights in the constitutional law of the United States” — discussing, in particular, the implications of one or more constitutionally entrenched human rights for the divisive controversies over capital punishment, same-sex marriage, and, in this paper, abortion. 

A list of the papers is available here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=190495. 

I have also posted a related paper pursuing the implications of the morality of human rights for the American practice of judicial review: http://ssrn.com/abstract= 2383424.


Barnett, Blackman et al.: Does the Privileges or Immunities Clause Protect Economic Rights?
Michael Ramsey

Josh Blackman, Randy Barnett and other leading property and economic rights scholars have filed an amicus brief supporting a grant of certiorari to review a Ninth Circuit decision that denied a claim to use navigable waterways as unprotected by the Slaughter-House Cases.  As the brief describes:  

Yet the Ninth Circuit below refused to recognize even those aspects of the Privileges or Immunities Clause that Slaughter-House retained. Applying the same overarching historical narrative deployed in Slaughter-House to downplay still further the extent to which the Clause was intended to effect any significant change, the Ninth Circuit announced that the rights enumerated in Slaughter-House must be “narrowly construed” when applied to “economic activities.” Courtney v. Goltz, 736 F.3d 1152, 1161 (9th Cir. 2013). The court thus held that the “economic rights protected by” the Clause are “limited to the right of travel,” and that the right to use navigable federal waterways does not include the right to “utilize those waters for a very specific professional ven ture.” Id. at 1160, 1161 & n.5 (internal quotation marks omitted).

Certiorari is warranted to repudiate the Ninth Circuit’s further evisceration of the Privileges or Immunities Clause. The Clause was drafted in response to widespread restrictions of economic liberty, including limitations on the economic activities of former slaves. And the framers of the Clause used language commonly understood to incorporate a long tradition of natural law rights, including the right to pursue a lawful trade. The Ninth Circuit’s removal of economic activity from the scope of the Clause cannot be reconciled with history demonstrating that economic freedom lay at the provision’s core.

(Via Josh Blackman's Blog).  The Brief is signed by Professors Randy Barnett, Josh Blackman, James Ely, Richard Epstein, Christopher Green and Ilya Somin.

Randy Barnett has more here.

It's an interesting well-argued brief -- I reviewed an earlier draft & didn't sign on only because the Fourteenth Amendment isn't my area of expertise.  But it seems right to me.

Katherine Shaw: Constitutional Nondefense in the States
Michael Ramsey

In the current issue of the Columbia Law Review, Katherine Shaw (Cardozo) has the article Constitutional Nondefense in the States (114 Colum. L. Rev. 213).  Here is the abstract:

Although scholars have long debated the scope of the President’s power to decline to defend statutes challenged in litigation, no one has yet undertaken a systematic examination of nondefense by state executives, who, like their federal counterparts, often find themselves torn between competing obligations to defend statutes, on the one hand, and to maintain fidelity to state and federal constitutions, on the other. This Article takes up the question of how the executive nondefense power is conceived, wielded, and constrained—within what institutional frameworks and with what implications—in the states. Drawing on a number of case studies, the Article sketches an initial taxonomy of approaches to executive nondefense in the states, argues that significant benefits can attach to the practice of nondefense, and provides a set of recommendations for ensuring that when nondefense occurs, its benefits can be realized. Although critics of executive nondefense in the federal system worry that its use threatens to inject partisanship, instability, and uncertainty into the law, the practice in the states, in which nondefense occurs relatively routinely in the context of a variety of institutional design choices, provides a powerful counterpoint to those objections.


James Pfander & Nassim Nazemi: Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793
Michael Ramsey

The article Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793 by James E. Pfander (Northwestern University School of Law) and Nassim Nazemi (Northwestern University School of Law) is now published in the current issue of the Northwestern University Law Review (108 Nw. U. L. Rev. 187 (2014)). A prior draft was posted on SSRN last year and noted on this blog here last May.  Here is the abstract:  

Adopted in 1793, the Anti-Injunction Act (AIA) has come to symbolize the early republic’s concern with protecting state court autonomy from an overbearing federal judiciary. Modern observers view the AIA and its prohibition of injunctions to stay state court proceedings as an absolute barrier to federal interposition. All agree that the origins of the Act were, as the Supreme Court observed, “shrouded in obscurity.”

To remove the shroud, we return to an eighteenth-century world in which separate courts of law and equity exercised concurrent jurisdiction, and courts of equity secured their role through injunctions to stay proceedings at law. One such proceeding unfolded in North Carolina, as founding financier Robert Morris attempted to stay the enforcement of an adverse state court judgment. The language of the AIA was likely drafted to address the specific problem of federal–state concurrency laid bare in that case, Morris v. Allen. By limiting its restriction to “writs of injunction,” the AIA barred original federal interposition but left the federal courts free to issue ancillary stays to protect federal jurisdiction and federal decrees. Reclaiming this lost distinction between original and ancillary injunctive relief calls for a fundamental reconsideration of the place of the 1793 Act in the legislative output of the early republic. Far from the absolute bar that it later became in the hands of twentieth-century jurists such as Felix Frankfurter, the 1793 Act struck a balance that protected state court autonomy even as it authorized federal judicial self- defense.  


Edmund Ursin: Early Incarnations of Legal Pragmatism and Enterprise Liability
Michael Ramsey

Edmund Ursin (University of San Diego School of Law) has posted Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability (San Diego Law Review, Vol. 50, Summer 2013) on SSRN.  Here is the abstract:

Enterprise liability is a term associated with the tort lawmaking of the liberal “Traynor era” California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This manuscript examines the evolution of each of these theoretical movements from Holmes’s great 1897 essay, “The Path of the Law,” to the present day. Its focus is on the great judges and scholars whose views have shaped our own: Holmes, Cardozo, the Legal Realists Leon Green and Karl Llewellyn, Traynor, and Posner.

Stated simply, the shared jurisprudential view of these great judges and scholars is that in our system judges are legislators as well as adjudicators — and policy plays a role in their lawmaking. In the common law subjects, in fact, judges are the primacy lawmakers. In constitutional adjudication they are also lawmakers but lawmakers aware of the general need for deference to other branches. No fancy formulas such as “neutral principle “or “original meaning” can capture this role. Indeed, the leading academic theorists of the past century — and today — have been out of touch with the reality of judicial lawmaking as it has been expressly articulated by these great judge. We also see in the works of these judges and scholars the origins of the enterprise liability doctrines that the pragmatic Traynor era court of the 1960s and 1970s, would adopt, including the doctrine of strict products liability and expansive developments within the negligence system.


David Arkush: The Original Meaning of Recess
Michael Ramsey

David J. Arkush (University of Richmond - School of Law) has posted The Original Meaning of Recess on SSRN.  Here is the abstract:

This Article reevaluates the original meaning of "recess" in the Recess Appointments Clause. The dominant view holds that "recess" refers only to breaks between formal Senate sessions. By identifying new evidence and correcting mistaken interpretations of older evidence, this Article and finds strong support for the view that the Clause uses "recess" in its ordinary, general sense, to mean any time when a legislative body is not conducting business. The Article next considers whether the divergence in views on "recess" can be attributed to methodological differences and finds that explanation improbable. Finally, the Article makes two general points that arise from its analysis: it may be more difficult than is widely appreciated to establish a specialized original meaning, and scholars making originalist claims should provide clear accounts of the scope and limitations of their research.

A well-argued counterpoint to the position taken in Mike Rappaport's 2005 recess appointments article and in the originalist scholars' brief in Noel Canning.

Thanks to Seth Barrett Tillman for the pointer.


Erica Hashimoto: Reclaiming the Equitable Heritage of Habeas
Michael Ramsey

In the current issue of the Northwestern University Law Review, Erica Hashimoto (University of Georgia School of Law) has the article Reclaiming the Equitable Heritage of Habeas (108 Nw. U. L. Rev. 139).  Here is the abstract:

Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court—the Court of King’s Bench—but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules—and particularly the five gatekeeping doctrines that preclude consideration of claims—produce unfair results. But in fact, four of these five bars exhibit significant equitable characteristics. The sole outlier, the Supreme Court’s retroactivity bar, strictly prohibits relief when an applicant relies on a new rule of constitutional procedure, without regard to the blamelessness of the applicant’s conduct or the nature of the claim. The nonequitable nature of the retroactivity bar causes both individual and institutional harms. Of particular importance, because it operates irrespective of how compelling the individual claim of error may be, it blocks the opportunity to secure relief on claims in approximately one quarter of all capital habeas cases. The nonretroactivity rule also makes it impossible for courts to recognize new rights applicable to collateral proceedings, no matter how sound such new rights might be. This Article argues that the Supreme Court should modify its retroactivity doctrine to reflect equity’s traditions. In particular, the Court should adopt three individualized equitable exceptions to the now-absolute retroactivity bar that take account of applicants’ conduct in pursuing claims, the merits of the claims and the stakes involved, and the unavailability of alternative remedies. These exceptions might not alleviate all of the inequities created by the nonretroactivity rule. They would, however, bring it more in line with its four companion habeas bars, providing a measure of coherence to these gatekeeping doctrines and reconnecting the nonretroactivity rule with the writ’s deep equitable roots.


Tenth Circuit Holds Guarantee Clause Claim Justiciable
Michael Ramsey

Via Derek Muller at Excess of Democracy, last week the Tenth Circuit found a guarantee clause claim justiciable.  Here is the opinion in Kerr v. Hickenlooper, which is challenge to Colorado's constitutional limits on the legislature's power to tax.   Additional thoughts from Garrett Epps at The Atlantic: Can the U.S. Government Declare a State Constitution "Un-Republican"?

Previous thoughts on this case from Derek Muller are here (and from me here and here).  I earlier argued that the case is a non-judicial political question:

A proper textually founded political question doctrine arises not from some vague idea that the case is too hard (or too embarrassing, or too controversial) but -- as in Nixon [v. United States] -- the idea that the decision is textually committed to another branch (that is, committed by the particular phrasing of the clause at issue).

That seems to be the case with the guarantee clause.  It provides:

"The United States shall guarantee to every State in this Union a Republican Form of Government . . . ."

This reads like an obligation placed on the political branches of the U.S. government, not the judiciary.  It would be a different matter if the clause had used language parallel to Article I, Section 10, whose prohibitions on the states, expressed as direct legal commands, are clearly justiciable; it might have said: "no State shall have anything but a republican form of government."  That would sound too like an ordinary legal command, and it would not become any less so simply because there might be some ambiguity in the word "republican."  But the awkward and indirect phrasing of the guarantee clause suggests that it is not an ordinary legal obligation placed on the states for the courts to enforce.   Rather, it is a guarantee effectuated through political action of "the United States" as a whole -- and a potentially powerful one: as a result of the clause, for example, Congress could overturn non-republican aspects of state governments (and courts would enforce such laws).

Nothing the court says changes my mind a bit.  Here is the core of the court's textual argument:

The text of the Guarantee Clause does not mention any branch of the federal government. It commits the “United States”—which would normally be read as including the Article III courts—to the preservation of republican government in the states. The Guarantee Clause is found not in Article I or Article II, where we would expect to find it if its provisions were textually committed to another branch, but in Article IV. Moreover, two other provisions of Article IV specifically empower Congress to act, but the Guarantee Clause does not. See id. § 1 (“[T]he Congress may by general Laws prescribe the Manner in which [public] Acts, Records, and Proceedings shall be proved, and the Effect thereof.”); id. § 3 (“New states may be admitted by Congress into this Union . . . Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”). The omission of any mention of Congress from the Guarantee Clause, despite Congress’ prominence elsewhere in Article IV, indicates there is no “textually demonstrable commitment”—certainly not an inextricable one—barring our review or district court consideration of this case.

My previous response to the "federal courts are part of the 'United States'" argument is here, and I don't have much to add.  The court's point about other clauses of Article IV seems unpersuasive -- the more important text is the rest of Article IV, Section 4, which is obviously not directed to the courts ("The United States ... shall protect each of [the states] against invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."  The absence of a specific reference to Congress only shows that (under some circumstances) the clause is addressed to the President as well.  But the main point (which the court doesn't address at all) is that if the Framers wanted to place a direct prohibition on the states, they would have phrased it as in Article I, Section 10 -- where most of the direct prohibitions are -- or as in other clauses of Article IV.

An additional point is this: an open-ended commission to review all state governments to assure they are sufficiently "republican" (surely an imprecise term) is a hugely important power.  If the Constitution had been understood to give it to the federal courts, one might expect some discussion and objection at the Founding (which, as far as I know, there was not). Perhaps this only indicates a very broad view of "republican" (such that any state that wasn't a monarchy or a dictatorship would count).  But I think it also suggests an understanding that Congress would principally exercise the power (which meant that any exercise of it would have needed the assent of a majority of the state-selected Senators).  There is an enormous difference between saying that the political branches of the U.S. government can declare a state's constitution un-republican, and saying that courts can do it.

In any event, this is a hugely important case.  If Colorado loses on the merits, it would transform the relationship between the states and the federal judiciary.