Jeffrey Sawyer: English Law and American Democracy in the Revolutionary Republic
Michael Ramsey

Jeffrey K. Sawyer (University of Baltimore School of Law) has posted English Law and American Democracy in the Revolutionary Republic: Maryland, 1776-1822 (Maryland Historical Magazine, Vol. 108, No. 3 (Fall 2013), pp. 261‑290) on SSRN.  Here is the abstract:

Between 1776 and 1784, eleven of the original thirteen states made some provision for the continuing authority of the common law and British statutes. But there were highly significant variations in the pattern from state to state, variations that helped to differentiate each state as a unique jurisdiction. In Maryland, despite the effort of leading lawyers to settle the matter once and for all in 1776, the precise effects of Article 3 had to be worked out over several decades of political, legal, and intellectual maneuvering. As a result, Marylanders left a remarkable record of politicians, lawyers, and judges contesting for different views of the importance of legal continuity in a democratic republic. This history helps explain why Marylanders are still entitled to the benefits of the common law by the authority of Article 5 of their current constitution, and it also illuminates a defining feature of American democracy, the tension between its theory of sovereignty and the rule of law in practice.

As historians and students of the revolutionary era in Maryland well know, the constitution of 1776 as a whole was a defeat for direct democracy and any popular agenda of social leveling or economic equality that may have been in play, A few idealists, notably Colonel Rezin Hammond of Anne Arundel County, were elected to the 1776 convention but were unable to build a strong statewide political coalition. Effectively led by their wealthy and worldly leaders, notably Charles Carroll of Carrollton, Matthew Tilghman, Samuel Chase, Thomas Johnson, Charles Carroll the Barrister, and William Paca, a majority of delegates embraced independence from the British Empire but voted consistently for a style of government that was familiar and predictable. Why was this plan so conservative? In part because delegates embraced a conception of democratic legitimacy shaped not just by Revolutionary ideals and rhetoric about liberty and rights, but also by the particulars of local legal history.

(Via Larry Solum at Legal Theory Blog).


Scott Stephenson: Federalism and Rights Deliberation
Michael Ramsey

Scott Stephenson (JSD candidate, Yale Law School) has posted Federalism and Rights Deliberation (Melbourne University Law Review, Forthcoming) on SSRN.  Here is the abstract:

The relationship between federalism and rights is an understudied aspect of Australia’s constitutional system. It is rarely analysed in detail because the premise of most theories, which are drawn from the United States, is that federalism alters substantive outcomes on rights. These theories do not connect to Australia’s constitutional experience because the country’s federal system produces a large degree of policy uniformity.

In this paper, I argue that Australia’s federal system has a substantial impact on legislative deliberations of rights issues. Even when policy uniformity results, federalism introduces additional actors and alternative viewpoints into the lawmaking process, altering patterns of discourse. I employ three case studies — counter-terrorism, same-sex marriage and organised crime — to highlight and analyse the connections between federalism and rights deliberation. This understanding of the relationship has implications for the place of federalism in Australia’s constitutional system, which is often undervalued, and the country’s approach to rights protection, which relies extensively on a deliberative process that is attune to rights issues.


Seth Barrett Tillman on Quorums
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted two short essays on quorums on SSRN.  The first is Letter from Seth Barrett Tillman to Professor Anonymous, The Quorum Clause.  Here is the abstract:

Dear Professor,

You asked do “you believe that it is constitutional for a house to operate with a minority of members so long as no one asks for a quorum call[?]” In fact, I do.

This is why.

And as a follow-up:  Letter from Seth Barrett Tillman to Jimmy Y T MA, Counsel to the Legislature, Hong Kong Special Administrative Region of the People's Republic of China, Counting Quorums.  Here is the abstract:

Dear Legislative Counsel,

Thank you for writing. I am happy to send you a copy of my publication on the Quorum Clause of the U.S. Constitution. I have attached a copy. [See entry above.  --Ed.] It is short (and, perhaps, a bit informal), but I hope useful to scholars and practitioners such as yourself. 

You ask an interesting question—Do members have an unlimited right to seek quorum calls, even if repetitive, even if they effectively amount to a filibuster? I have not written on that precise question, but I have thought about that question for some years and corresponded with a wide array of parliamentarians in the English-speaking world following lex parliamentaria. I offer some thoughts below. Everything I suggest below assumes that any meeting was duly noticed under the relevant organic law: the constitution, statutes, standing parliamentary orders and rules, etc.


Is Griswold v. Connecticut Consistent with the Original Meaning?
Mike Rappaport

Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case.  Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it).  In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum.     

But is Griswold in accord with the original meaning?  I don’t believe any of the justifications offered in Griswold – substantive due process, the 9th Amendment, emanations from penumbras – work from an originalist perspective.  But I do believe that another basis may do the trick. 

These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment (which several other scholars hold in various forms).  Under this view – which might be termed the prevalent rights view – “the privileges or immunities of citizens of the United States” – refers to the rights that are prevalent throughout the United States at a particular time.  Thus, to determine what those rights are, one must look at what rights the states (and perhaps the federal government) protect.  It may be that those rights should have been protected over a period of time, not just for a particular instant.  I will try to explain the basis for this view in a future post. 

Under this view, there appears to be a strong argument that the right of married couples to use contraceptives was a prevalent right in 1965 – that is, a right enjoyed throughout the United States.  According to Justice Harlan in Poe v. Ullman, “Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.”   

If Justice Harlan is right, then this would support a right to use contraceptives.  Exactly the parameters of that right – whether it extended to unmarried couples, to the distribution of contraceptives, and other aspects – would depend on the number of states that treated these aspects as rights and the necessary number needed to establish it as a prevalent right.  

I should note that I have changed my mind about this issue.  Based on the feeble justifications given for the right in Griswold and subsequent cases, I have for a long time believed that Griswold did not accord with the original meaning.  But now I am inclined (although am not certain) that it is justified under the original meaning. 

(Cross posted at the Liberty Law Blog)

Paul Kahn & Kiel Robert Brennan-Marquez: Statutes and Democratic Self-Authorship
Michael Ramsey

Paul Kahn (Yale Law School) and Kiel Robert Brennan-Marquez (Yale Law School) have posted Statutes and Democratic Self-Authorship (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract: 

This Article reframes the longstanding debate over statutory interpretation. That debate tracks a familiar dichotomy: text v. purpose. Both sides of the debate, however, accept the idea that courts are to be the faithful agents of the legislature that authors the laws. We disagree. In our view, in a democracy the people must see themselves as the authors of statutes. This is what allows the rule of law and the “rule of men” — that is, the rule of the people — to coincide. The faithful agency view of statutory construction has confused drafting with authorship: the legislature drafts statutes, but authorship is a social practice of the people holding themselves accountable for the law. The courts’ role, when interpreting a statute, is to cast the law as something that we the people have done together, rather than something done to us by legislators.

This shift in paradigm yields dramatic consequences. Apart from helping to overcome the endless debate between textualism and purposivism, our theory also brings considerable clarity to what courts actually do when they interpret statutes. Moreover, it locates the judicial function squarely within an important strand of the political theory of self-government, stretching from Thomas Hobbes to Jurgen Habermas.

For many decades, commentators have been sympathetic to the idea of self-authorship as applied to “fundamental” law — especially constitutional law. But they have been unable to connect that theory of self-authorship to the construction of “ordinary” laws. The error has two basic sources. First, scholars have focused too much on judicial review as a counter-majoritarian practice; second, they have fixated on voting as the site of democratic participation. Our argument rejects both of these limits, offering a robust account of democracy as the rule of law.


Jack Balkin: How Liberals Can Reclaim the Constitution
Michael Ramsey

In the Washington Post, Jack Balkin: How Liberals Can Reclaim the Constitution.  From the conclusion:

The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. Liberals should claim for themselves — as conservatives already have — not only the constitutional text but the entire constitutional tradition, including the ideals and hopes of the generations that fought to create a new nation and establish the Constitution.

The founders — including the Reconstruction framers who gave us the 13th, 14th and 15th amendments — created a framework on which later generations must build to realize the Constitution’s great promises of liberty and equality. It is our job, in our own day, to further that great work. That is the liberal vision of the Constitution, and it is both originalist and living constitutionalist.

Via Balkinization, where Professor Balkin adds:

The point of the piece is not that liberals should all become Scalia-style originalists and start talking like movement conservatives do. Rather, it's that liberals should simply reject the false dichotomy between originalism and a living Constitution.

Accepting that opposition as  the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in.  Contemporary liberals should reject that invitation. The American constitutional tradition, understood in its best light, is a liberal egalitarian tradition.

I'm all for using originalism to reach liberal results -- I think that's the best way to defend originalism from the charge that it's no more than cover for a conservative agenda.  But Balkin seems to go to the opposite extreme, and find that (his version of) originalism always (or almost always) leads to liberal results.  Why is it not most plausible that the Constitution is a set of rules, drafted without knowledge of modern political squabbles, that sometimes leads to conservative results (in modern terms) and sometimes to liberal results?  Sadly, there is not much constituency for that proposition.



Ilan Wurman on "Is Administrative Law Unlawful"?
Michael Ramsey

In The Weekly Standard, Ilan Wurman (see his interesting prior article here) reviews (favorably) Philip Hamburger's Is Administrative Law Unlawful? From the review's introduction:

The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument.

“The trouble in early times was almost altogether about the constitution of government; and consequently that was what engrossed men’s thoughts,” wrote Woodrow Wilson in his Study of Administration (1887). “The functions of government were simple, because life itself was simple. .  .  . No one who possessed power was long at a loss how to use it.” That all changed—apparently in Wilson’s generation—when “present complexities of trade and perplexities of commercial speculation” posed new challenges for government. 

“In brief,” Wilson wrote, “if difficulties of governmental action are to be seen gathering in other centuries, they are to be seen culminating in our own.” So we need experts: “[W]e have reached a time when administrative study and creation are imperatively necessary to the well-being of our governments saddled with the habits of a long period of constitution-making.” 

Necessary; there is no alternative. As the Supreme Court has dclared, “[I]n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” 

That is a convenient narrative for the defenders of the administrative state. But it is fanciful. It is not historically accurate. And the justifications—especially the claim of necessity—are not new. Neither are the powers of the administrative state. Indeed, Philip Hamburger, professor of law at Columbia, argues here that it was precisely these justifications and powers that English and American constitutional law developed to protect us against. Not only is the modern administrative state unconstitutional, it is the very thing our Constitution sought to prevent.

(Via Power Line)

RELATED:  Professor Hamburger will be blogging about his book at Volokh Conspiracy this week. 


Roy Brownell: The Independence of the Vice President
Michael Ramsey

In the current issue of the NYU Journal of Legislation and Public Policy, Roy E. Brownell II has the article The Independence of the Vice Presidency (17 N.Y.U. J. L. & Pub. Pol'y 297 (2014)).  From the introduction:

Public portrayal of the Vice President’s standing in relation to the President suffers from a trio of shortcomings. One is that the Vice President is often characterized, either explicitly or implicitly, as lacking independence from the President. The Vice President is widely viewed as ready and willing to do all that the President asks, whenever he asks it; the prototypical “company man.” As  a result, it is often assumed the Vice President must do his bidding. However, such assertions confuse political prudence with constitutional prescription. This article will emphasize that, as a constitutional matter, the Vice President is independent from the President and can and does take actions and public positions that are contrary to the latter’s wishes.

A second problem in discussions of presidential-vice presidential relations is that, while some authorities properly note the Vice President’s independence, they fail to analyze this trait in any detail. It has been largely left as an unexamined assumption. This article will attempt to fill this void and review closely the legal sources of, and justifications behind, vice presidential independence.

Finally, many of the same authorities who recognize the Vice President as constitutionally independent believe this characteristic is little more than a theoretical proposition. They contend that vice presidential autonomy as a practical matter is, or at least has recently become, a dead letter. These scholars end up in the same place as those who question or reject entirely the office’s independence. Thus, there is a rough consensus that the Vice President lacks autonomy, be it either constitutional or practical. This article cuts against the grain and argues that the Vice President is independent in both respects.

(Thanks to Seth Barrett Tillman for the pointer).


Mark Kende: Justice Clarence Thomas's Korematsu Problem
Michael Ramsey

Mark Kende (Drake University Law School) has posted Justice Clarence Thomas's Korematsu Problem (Harvard Journal of Racial & Ethnic Justice, Vol. 30, p. 201, 2014) on SSRN. Here is the abstract:  

The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision. This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case. Two cases provide the major evidence. First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights.

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process. California argued this minimized racial violence. Thomas therefore abandoned his well-known position of racial color-blindness in the case. The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu. The essay also addresses several counter-arguments. While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.


Neomi Rao on the President's Removal Power
Michael Ramsey

Neomi Rao (George Mason University School of Law) has posted Removal: Necessary and Sufficient for Presidential Control (Alabama Law Review, Vol. 65, No. 5, pp. 1205-1276, 2014) on SSRN. Here is the abstract:

Legal and political uncertainty continues to surround the independent agencies. Courts and scholars have recognized that control over administration usually depends on political realities rather than on legal categories of "independence." This perspective, however, tends to disregard the constitutional boundaries for administration. Contrary to the conventional view, I explain why Congress's authority over agency structure must have judicially enforceable limits in order to prevent encroachment on the executive power. In light of the constitutional text and structure, this Article demonstrates that the ability to remove principal officers is necessary and sufficient for presidential control of the executive branch. This means that all agencies, including the so-called independent agencies, must answer to the President. The principle allows Congress and the President to operate within their respective spheres while leaving most questions about actual administrative control to the political process. Limits on the President's removal authority have always been in tension with the basic constitutional design and in recent years there has been growing dissatisfaction with the meaning, structure, and effects of independence. The precedents and functional justifications for supporting agency independence have largely collapsed. The issue is ripe for reconsideration. The constitutional structure requires presidential control and supervision over administration and the removal power provides the mechanism for the possibility of such control.