07/23/2016

Renée Lerner: The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury
Michael Ramsey

Renée Lettow Lerner (George Washington University Law School) has posted The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury (Magna Carta and its Modern Legacy 77-98 (Robert Hazell and James Melton eds., Cambridge University Press 2015)) on SSRN. Here is the abstract:

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.

Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.

 

07/22/2016

North Carolina Law Review Symposium on Magna Carta
Michael Ramsey

The North Carolina Law Review has published papers from this symposium: Celebrating 800 Years of Magna Carta.  They are:

Magna Carta: The First Eight Hundred Years, by Alfred Brophy, William P. Marhsal & John V. Orth (94 N.C. L. Rev. 1409 (2016))

Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter, by Mary Sarah Bilder (94 N.C. L. Rev. 1545 (2016))

Magna Carta's American Adventure, by A. E. Dick Howard (94 N.C. L. Rev. 1413 (2016))

The Magna Carta Betrayed?, by Jed S. Rakoff (94 N.C. L. Rev. 1423 (2016))

Magna Carta and the Forest Charter: Two Stories of Property What Will You Be Doing in 2017?, by Paul Babie (94 N.C. L. Rev. 1431 (2016))

The Myth of Magna Carta Revisited, by R. H. Helmholz (94 N.C. L. Rev. 1475 (2016))

Blackstones's Magna Carta, by Wilfred Priest (94 N.C. L. Rev. 1495 (2016))

“The Whole of the Constitutional History of England is a Commentary on this Charter", by Charles Donohue Jr. (94 N.C. L. Rev. 1521 (2016))

Magna Carta for the World? The Merchants' Chapter and Foreign Capital in the Early American Republic, by Daniel Hulsebosch (94 N.C. L. Rev. 1599 (2016))

The Past Is Never Dead: Magna Carta in North Carolina, by John V. Orth (94 N.C. L. Rev. 1635 (2016))

The Conservative Magna Carta, by Mary Ziegler (94 N.C. L. Rev. 1653 (2016))

Magna Carta for the Masses: An Analysis of Eighteenth-Century Americans' Growing Familiarity with the Great Charter in Newspapers, by Sally E. Hadden (94 N.C. L. Rev. 1681 (2016))

07/21/2016

Mark Frassetto: The Law and Politics of Firearms Regulation in Reconstruction Texas
Michael Ramsey

Mark Anthony Frassetto (Counsel, Everytown for Gun Safety) has posted The Law and Politics of Firearms Regulation in Reconstruction Texas (4 Texas A&M L. Rev.  __ (2016)) on SSRN. Here is the abstract:     

In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts.

More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.

07/20/2016

Aaron-Andrew Bruhl: The Jurisdiction Canon
Michael Ramsey

Aaron-Andrew Bruhl (William & Mary Law School) has posted The Jurisdiction Canon (Vanderbilt Law Review, forthcoming) on SSRN. Here is the abstract:

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject‐matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject‐matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.

This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes, first, a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of influences including docket composition, interest‐group activity, and the (potentially shifting) attitude of the Supreme Court toward the civil justice system. This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.

From an originalist perspective, I think it is very hard to justify many of these types of canons, which look like little more than federal courts disfavoring things the federal courts don't like.

07/19/2016

Lawrence Solan: Can Corpus Linguistics Help Make Originalism Scientific?
Michael Ramsey

In the Yale Law Review's online forum, Lawrence Solan: Can Corpus Linguistics Help Make Originalism Scientific?  (126 Yale L.J. F. 57 (2016)). Here is the introduction (footnotes omitted):

James Phillips, Daniel Ortner, and Thomas Lee begin their engaging essay, Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical, by pronouncing originalism “the predominant interpretive methodology for constitutional meaning in American history.” They then describe and attempt to justify a new tool to improve originalist methodology: a large corpus of Founding-era documents, representative of a host of genres available to educated people of that period. As their title suggests, the brand of originalism they set out to improve is the version at times dubbed “the new originalism”—an iteration that seeks to construe the Constitution in accordance with the understanding of the state constitutional convention members who read its words and heard its supporters at the time.

This brief Essay expresses support for the project, but also focuses on its limitations in advancing originalist argumentation. While better empirical tools for determining original public meaning are valuable, they only get us so far, as a) there may be multiple original public meanings or no clear meaning that emerges from the corpora; b) we are lacking a coherent theory to justify when one original public meaning rather than another should be relied upon; and c) for abstract concepts such as “abridging the freedom of speech,” which we are likely to encounter in the constitutional context, it is unclear whether the original meaning ought to be interpreted thickly to include specific examples of the concept or thinly to define only the concept itself.

(Related post here).

 

07/18/2016

Stephen Griffin on Justice Scalia
Michael Ramsey

Stephen Griffin (Tulane School of Law) has posted Justice Scalia: Affirmative or Negative? (101 Minnesota Law Review Headnotes 52 (2016)) on SSRN. Here is the abstract:

This short essay, part of an online symposium on Justice Scalia, assesses Scalia’s contributions to constitutional theory, especially the theory of constitutional interpretation. Drawing on some recent biographies, I argue that Scalia repeatedly deployed a rhetorical strategy known as preemptive argument. A preemptive argument attempts to occupy the argumentative terrain so that counter-arguments cannot get off the ground. Scalia made two preemptive moves that were highly influential – that original public meaning was sharply different from original intent and that the debate between contending positions in constitutional interpretation is best characterized as originalism versus nonoriginalism. I contend that both moves had a deleterious impact on the progress of American constitutional theory. I conclude with some thoughts on why Scalia often seemed so negative on the progress of American constitutionalism in general.

07/17/2016

Richard Ekins: Objects of Interpretation
Michael Ramsey

Richard Ekins (University of Oxford - Faculty of Law) has posted Objects of Interpretation (Constitutional Commentary, forthcoming) on SSRN. Here is the abstract:

This paper argues that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. The paper develops these claims by way of a critique of Cass Sunstein’s recent argument that there is nothing that interpretation just is, contending that he misunderstands the way that intention works in language use in general and that the alternatives to intentionalism that he outlines each fail. The radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the paper considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.

(No paper available for download, possibly due to issues at SSRN, but too good to pass up).

07/16/2016

Eric Segall (and Ed Whelan) on Justice Ginsburg
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Ginsburg and the Emperor’s New Clothes.  From the core of the post:

Should Justice Ginsburg have spoken out is of course the real question. One of the leading experts on legal ethics in the country, Professor Steve Gillers, said no because the "rule of law" requires "the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated."  Professor Sanders agrees, writing that we need the public to trust the Court because the Justices are our best bulwark against tyranny, and without them we wouldn't have same-sex marriage, the right to choose, and other outcomes that progressives favor. In his words, "progressives do not want to live in a world where we have completely erased the line between politicians and judges." I assume Professor Sanders would agree that most conservatives don't want to live in that world as well. ...

Notice that neither Professor Gillers nor Professor Sanders actually said that Court decisions are free of political and even sometimes partisan influence, just that the public needs to believe that is the case. ...

In Bush v. Gore, the Justices handed George W. Bush the 2000 election based on what most people think were quite sketchy constitutional arguments. We all know (or at least are petty sure) that at the time all five Justices in the majority (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) all thought the country was better off with a Bush rather than a Gore Presidency while the four dissenters (Ginsburg, Stevens, Breyer, and Souter) would have preferred the opposite outcome. What is to be gained by the Justices pretending that law rather than all things considered values (including law) drove the decision? 

...

So, back to Justice Ginsburg. We know that she would rather have Hilary Clinton as President rather than Donald Trump, and we know that in virtually any case that came before her where that choice was presented she would vote for Hilary. What are we teaching our children and the "public" referred to by Professor Gillers when we demand that she not admit what is really true? Why do we have to formally pretend that the Justices don't have prior values which in cases they care about drive their decisions. As Professor Mark Tushnet put it so well, why do "people who acknowledge that Justices have political views that do influence their decision-making think there's something important about maintaining the facade that they don't?"

There is great separation-of-powers and federalism value in having a third branch of government act as a veto council over the other two branches and the states. ...

 And from a different perspective, a somewhat similar conclusion from Ed Whelan at NRO:

[T]he “living Constitution” approach that Ginsburg subscribes to—under which the Constitution will be said to mean whatever she wants it to mean—is nothing more than the thinly disguised imposition of her strongly held policy preferences. In short, for living-constitutionalists, the reality of impartiality is an illusion (even if it’s an illusion that some of them subjectively believe in—or at least find it useful to pretend to believe in).
 
Having embraced a constitutional approach that makes a sham of actual impartiality, why—other than to deceive us yahoos—should Ginsburg try to maintain the false appearance of impartiality? Let’s give her credit instead for exposing, once again, how nakedly political she is.

07/15/2016

Daniel Hulsebosch: English Liberties Outside England
Michael Ramsey

Daniel J. Hulsebosch (NYU Law School) has posted English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire (Oxford History of English Law and Literature 1500-1700, ed. Lorna Hutson, Chapter 38) (Oxford University Press, Forthcoming) on SSRN.  Here is the abstract:     

 

We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant.

Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems.

Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human pr

07/14/2016

Curtis Bradley: Doing Gloss
Michael Ramsey

Curtis A. Bradley (Duke University School of Law) has posted Doing Gloss on SSRN. Here is the abstract:

In discerning the Constitution’s separation of powers among the three branches of the federal government, it is common for courts, the political branches, and academic commentators to give weight to post-Founding governmental practice. There is substantial uncertainty, however, about the proper methodology for determining such “historical gloss.” In order to make progress on the methodological questions, the Essay contends that we first need to consider the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of non-judicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As the Essay explains, these differing justifications have differing methodological implications. This Essay considers in particular the differing implications that these justifications have for what constitutes relevant “practice” for purposes of determining gloss, and for the extent to which there must be a showing of institutional “acquiescence” in the practice. As will be shown, disaggregating the justifications for gloss helps explain variations in the types of evidence that courts have credited in discerning gloss. Perhaps most notably, it helps explain why courts are often less demanding in requiring evidence of institutional acquiescence than commonly-recited standards for gloss would tend to suggest.