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.

Sean O'Connor: The Overlooked French Influence on the Intellectual Property Clause
Michael Ramsey

Sean M. O'Connor (University of Washington School of Law) has posted The Overlooked French Influence on the Intellectual Property Clause on SSRN.  Here is the abstract:

The “IP Clause” of the U.S. Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “science” and “useful arts” do not cleanly map onto the subject matter of current intellectual property systems. As the Supreme Court has noted, under current popular usage of “arts” and “science,” one would expect patents to promote science and copyright to promote arts, yet we know from the historical record that it is exactly the opposite. Other terms, such as “progress” and “discoveries” remain contested. IP Clause interpretations to date rely exclusively on British legal and intellectual antecedents. I argue that the great French Encyclopédie project — a landmark of the mid - eighteenth century Enlightenment — provides crucial context. James Madison, a drafter of the IP Clause, owned and approvingly cited the work. Founding Fathers Thomas Jefferson and Benjamin Franklin were enthusiastic advocates of it. The Encyclopédie has as its two twin goals the promotion of progress in science and in mechanical (useful) arts. I argue that the reliance of early courts and commentators on British antecedents to interpret the federal patent and copyright statutes led to an improperly narrow sense of the context of the IP Clause. Using entries from the Encyclopédie on “Art,” “Science,” “Discoveries,” “Inventions,” “Writers/Authors,” and other relevant topics, I propose a new interpretation of the IP Clause that is more coherent and compelling than existing accounts.

(Thanks to Lisa Ramsey for the pointer.)


Aziz Z. Huq: The Function of Article V
Michael Ramsey

Aziz Z. Huq (University of Chicago Law School) has posted The Function of Article V (University of Pennsylvania Law Review, Vol. 162, 2014) on SSRN.  Here is the abstract:

What good is Article V? The Constitution’s amendment rule renders the text inflexible, countermajoritarian, and insensitive to important contemporary constituencies. Comparative empirical studies, moreover, show that textual rigidity is not only rare in other countries’ organic documents but highly correlated with constitutional failure. To promote our Constitution’s survival and to counteract Article V’s ‘dead hand’ effect, commentators argue, Americans have turned to informal amendment through the courts or ‘super’ statutes. Article V, the conventional wisdom goes, is a dead letter. Against this pervasive skepticism, I propose that Article V instead played an important but hitherto unrecognized function in the early Republic. Article V mitigated a ‘hold up’ dilemma that could have precluded ratification and undermined the new Constitution’s stability. By hindering strategic deployment of textual amendment, Article V-induced rigidity fostered a virtuous circle of investment in new institutions such as political parties and financial infrastructure. Recognition of Article V’s role in the early Republic leads to a more nuanced view of the Constitution’s amendatory regime. In effect, we have a two-speed Constitution — with Article V-induced rigidity at the inception supplemented gradually over time by informal judicial or statutory amendment protocols.


Originalism and Judicial Review – Part II: The Textual Arguments
Mike Rappaport

For the first post in this series, see here.

This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution.

It appears that virtually everyone agrees on the first issue that the Constitution takes priority over ordinary legislation. This appears to follow from the meaning of the Constitution (and perhaps as well from other provisions in the Supremacy Clause). It is the second issue where there is dispute: whether the courts get to determine whether legislation violated the Constitution or whether the courts should defer to the legislature’s determination that the legislation conformed to the Constitution. Put differently, where in the Constitution does it say the Courts get to say what the Constitution meant rather than the legislature?

Let’s start with the most important, but not the only relevant provision: the Supremacy Clause. That Clause provides that:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The first thing to see about the Supremacy Clause is that, despite claims to the contrary, it actually contains a relatively express judicial review clause. The language “and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” clearly indicates that state judges are supposed to exercise judicial review as to whether state laws conform to the U.S. Constitution. After all, why single out judges for this obligation rather than state legislatures?

Second, the Constitution also makes clear that federal judges are supposed to exercise judicial review as to state laws. Article III of the Constitution provides for federal jurisdiction for all cases “arising under this Constitution,” clearly indicating that judges are supposed to engage in judicial review as to state laws. (Otherwise, why provide for federal jurisdiction for such cases?)

Thus, the Constitution clearly contemplates judicial review. It tells us that federal and state judges are supposed to engage in it as to state laws. They are not supposed to defer to the decisions of state legislators as to whether the state law conforms to the Constitution.

If the Constitution clearly requires judicial review as to state laws, then what about federal laws? There are also strong indications of judicial review here. The Constitution tells us expressly in the Supremacy Clause that the Constitution is “law.” And therefore if judicial power is the authority to say what the law is – which it certainly is – then the Supremacy Clause and the judicial power tell us that the Court is supposed to interpret the Constitution. And the supremacy of the Constitution over other federal law tell us that the Constitution is to take priority. Hence, there is judicial review as to federal statutes.

This conclusion is reinforced by the role of the courts as to the judicial review of state laws. If courts have the role of reviewing state laws as to constitutionality, then one would need some special explanation for concluding that they should not have that role as to federal law. No such explanation is forthcoming. Critics of judicial review as to federal laws argue that the Congress is a coequal branch and therefore it should have the power to decide on constitutional questions. But this begs the question. Congress may be a coequal branch, but that does not mean it displaces the power of judges to interpret the Constitution when that is what judicial power encompasses. The state legislatures are coequal branches, yet the Constitution clearly requires the state judges to exercise judicial review over state legislatures. (Moreover, in the many precursors to judicial review at the state level, the state legislatures were coequal branches, but that did not stop the state judges from exercising judicial review.)

Finally, one might wonder why the Constitution expressly indicates in the Supremacy Clause of judicial review of state laws by state judges, but not of federal laws. One might believe that this suggests no judicial review of federal laws, but there is a strong alternative explanation for the Supremacy Clause’s reference. State judges owe their offices and allegiance to their state constitutions and therefore the Framers might have believed it was necessary to expressly reinforce that state judges should apply the federal constitution. By contrast, federal judges owe their offices and allegiance to the federal Constitution and therefore there was no need to add a special provision reinforcing it.

(Cross posted at the Liberty Law Blog)

Dominic Jerry Nardi Jr.: Finding Justice Scalia in Burma
Michael Ramsey

Dominic Jerry Nardi Jr. (University of Michigan at Ann Arbor - Department of Political Science) has posted Finding Justice Scalia in Burma: Constitutional Interpretation and the Impeachment of Myanmar's Constitutional Tribunal (Pacific Rim Law & Policy Journal, 2014, Forthcoming) on SSRN.  Here is the abstract:

While the comparative courts literature has yielded valuable insights into confrontations between political elites and judges, we still know relatively little about if and how jurisprudential methodology affects the ability of constitutional courts to survive such crises. How does the choice between originalism versus living constitutionalism affect a court’s relationship with the other branches of government? Do political elites tend to be more hostile towards certain methods of interpretation?

The 2012 impeachment of Myanmar’s Constitutional Tribunal presents an interesting example of the interplay between jurisprudence and politics. After fifty years of military rule, Myanmar’s 2008 Constitution produced a new civilian government that appeared committed to political reform. However, when the Tribunal ruled that legislative committees did not have constitutional status, the legislature impeached all nine members, forcing them to resign. Less than two years after it was created, the Constitutional Tribunal was essentially defunct.

This article argues that the Constitutional Tribunal’s approach towards constitutional interpretation did not ameliorate — and might have exacerbated — the crisis. Using a textualist or originalist methodology, the Tribunal struck down national legislation in four out of the five cases it heard. However, the Tribunal’s reasoning did not balance the legislature’s interests, much less account for the dramatic political reforms. The Tribunal also never provided a defense its constitutional review power, and many legislators feared that the Tribunal was usurping their newfound power. Had the Tribunal adopted a more flexible approach — such as proportionality or living constitutionalism — it might have soothed the legislature’s fears while still reaching similar policy outcomes.

Notable in that textualist originalism apparently has some judicial acceptance in Myanmar (though perhaps not with happy consequences).