Dale Carpenter on Originalism and Same-Sex Marriage
Michael Ramsey

At Volokh Conspiracy, Dale Carpenter: Inverted equal protection: same-sex marriage at the Sixth Circuit (Part I, originalism).  It's a long, thoughtful discussion of originalism and same-sex marriage, critiquing Judge Sutton's approach in the Sixth Circuit opinion.  From the core of the argument:

Principles-based originalism has been used in equal-protection doctrine to enforce the larger principles embodied in the text–like abolishing caste-creating laws and prohibiting discrimination against a group for invidious reasons unrelated to their own merits, that is, failing to treat them like “any person” who possesses equal worth and dignity. The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice. It demands reasons. And what counts as legitimate and sufficiently rational reasons evolves over time, as it has in every area of equal protection. How to reconcile the need to resist “anything goes” in equal-protection cases with the doctrine’s undoubted reliance on a broader principles-based originalism is a genuine problem. But DeBoer does not even acknowledge, much less grapple with it.

In fact, there are originalist-oriented arguments in favor of a constitutional right to same-sex marriage, as Ilya notes, including a recent article by Federalist Society co-founder Steve Calabresi. I don’t evaluate those arguments here, although suffice it to say that originalist arguments can be used plausibly and have been used in fact to reach results that would never have been anticipated by the authors of the amendment. Judge Sutton’s opinion simply does not engage the issue at the level of originalist principle. His originalist analysis is incomplete and selective.

The Sixth Annual Originalism Works-in-Progress Conference
Mike Rappaport

Every February, the Center for the Study of Constitutional Originalism at the University of San Diego holds the annual Hugh and Hazel Darling Works-in-Progress Conference.  The conference brings together many of the leading originalist scholars, both advocates and critics of originalism.  This year’s conference – the Sixth – is being held on February 20-21 at the University of San Diego.  Here is the line up of paper presenters and commentators:

In addition to paper authors and commentators, the Center invites all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  Each year, various leading scholars of originalism attend the conference in this capacity, significantly enhancing the level of discussion through their participation.

For last year’s conference, including a video of the proceedings, see here.

Michael Zimmer on The Supremes’ Category Mistake Plus Magical Money Thinking
Michael Ramsey

At Concurring Opinions, Michael Zimmer: The Supremes’ Category Mistake Plus Magical Money Thinking. An excerpt: 

In Citizens United, the Court made a category mistake: Because money effects speech, money is speech. Last term the Court extended that mistake in Harris v. Quinn: Money is speech even if there is no other speech. This post will see how far this category mistake plus the Court’s magical money thinking goes.

In Harris v. Quinn, the Court struck down the “fair share” agreement provision in the Illinois law providing for union representation of home health care workers as a violation of the First Amendment. The “fair share” provision provides: “When a collective bargaining agreement is entered into with an exclusive representative, it may include in the agreement a provision requiring employees covered by the agreement who are not members of the organization to pay their proportionate share of the costs of the collective-bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment.”

Nothing in this provision requires the non-member to do think, say or do anything vis-à-vis the union in terms of membership or participation in the organization. Indeed, the non-member could be engaged in a raucous and potentially effective campaign to get rid of the union and the union would have no basis to take action directly, or indirectly through the employer, to retaliate against someone who was a real pain in the side of the union. There is simply no connection between the non-member and the union other than that the service fee is deducted from the worker’s pay by the employer and forwarded to the union.

I'm sympathetic, though I'm skeptical any of this can be established by logical reasoning, as both Professor Zimmer and the Supreme Court seem to think (albeit with different conclusions).  The originalist approach, which at least offers some hope of an objective answer, is to ask whether at the time of enactment people thought of money as speech.  Whether thinking that way is a category mistake or a logical extension seems irrelevant: the rule, for an originalist, turns on how the framers viewed it, regardless of whether that was logical.  With the question framed this way, the Court's more aggressive versions of money-as-speech seem, at minimum, not proven.


Seth Barrett Tillman (and Others) on Zivotofsky
Michael Ramsey

Seth Barrett Tillman sends this comment:

You wrote: "But, Congress must always act pursuant to the powers given to it in the Constitution." See http://originalismblog.typepad.com/the-originalism-blog/2014/11/kontorovich-v-ramsey-on-zivotofskymichael-ramsey.html (11/7/2014). You considered several Article I powers (e.g., commerce & naturalisation) which might support Congress' purported power to control passport design. But you rejected those Article I powers as insufficient to authorise Congress here. 

What about the following argument ... Page 5 of my passport says: "U.S. Government Property. This passport is property of the United States. (Title 22, Code of Federal Regulations, Section 51.9)." So Congress' regulatory power over passports and, arguably, over passport design might be supported by U.S. Constitution Article IV, Section 3, Clause 2: "The 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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

I think that works.

Eugene Kontorovich comments favorably on this suggestion here: The Government Property Clause and Zivotofsky. But Marty Lederman (Just Security) is not persuaded.

RELATED:  Josh Blackman highlights originalism in the Zivotofsky oral argument: Hamilton and Story on the Recognition Power in Zivotofsky (including Justice Breyer, an "unexpected originalist").

ALSO RELATED:  This article in the National Law Journal discusses legal historian Louis Fisher's amicus brief in Zivotofsky and his campaign to get the Supreme Court to do something about Curtiss-Wright.  Of course, I agree.  Although I'm skeptical of Congress' enumerated power in Zivotofsky, my bigger concern (expressed in this discussion) is that the case not become a Curtiss-Wright-like assertion of wide ranging exclusive executive power.

AND STILL MORE:  Will Baude highlights part of his debate with John Manning that may relate to congressional power in Zivotofsky:  The Necessary and Proper Clause: Master or Servant?

Lash on ITINBI, part 6: Subsequent Interpretations
Chris Green

(1234, 5) I close my review of Kurt Lash's thoroughly-worth-reading book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, with a few comments on subsequent-interpretation evidence.

Is Subsequent-Interpretation Evidence Worth Canvassing? Lash has disparaged such evidence in general, calling it "questionable help," p. 230, and "historically perilous."  What really matters, Lash and I agree, is what a reasonable person participating in the actual act of adopting the Fourteenth Amendment would have understood it to express. I agree with Lash that the 1866 evidence is thus considerably more important than later evidence.  Given the quantity and clarity of subsequent-interpretation evidence, however--particularly the thoroughness of its textual reasoning--I find it extremely valuable as well. We should apply a discount rate, so that the further we get from 1866, the less valuable evidence becomes. This decay may be quite rapid; I would be happy to concede that, pound for pound, equally-well-reasoned and equally-numerous evidence from the period from 1872 to 1875 would be worth only, say, 5% of the value of evidence from 1866. However, because subsequent-interpretation evidence is much more abundant and much better textually reasoned, its relevance approaches the approximate order of magnitude of the 1866 evidence. As I explained in part 4, Lash's book actually led me to find a much greater store of equality-based evidence from 1866 than I had known earlier; given the obvious priority of pre-enactment evidence, perhaps the pre-CRA1875 evidence is not as important as this 1866 cache. But it is close.

Lash's book itself presents some subsequent-interpretation evidence in support of ITINBI (my shorthand for the incorporation, total incorporation, and nothing but incorporation reading of the privileges of citizens of the United States) from John Bingham's incorporation-focused March 1871 speech and from the Ohio Supreme Court's decision in Garnes from May 1872, as well as a creative ITINBI-friendly reading of Slaughterhouse and a tour through several other pieces of subsequent-interpretation evidence, such as Bingham's very confusing and difficult-to-harmonize January 1871 report against women voting and the failed Blaine Amendment of August 1876. Evidence like the March 1871 speech, Lash notes, bolsters the idea that Bingham had a consistent view about nationalizing the Bill of Rights from 1866 to 1871--it "illustrates the continuity in hs thinking from 1866 to 1871," p. 252.  I agree than consistency over time is important, but it is important both for Bingham and for other interpreters as well. Part 3 of this review discussed Jacob Howard's 1869 discussion of voting rights under the Fourteenth Amendment. It is striking that in Lash's chapter on subsequent-interpretation evidence, he notes that "in the end we are left with Jacob Howard's public explanation of the Clause as protecting the constitutionally enumerated rights of citizens of the United States as the most likely original meaning of the text," p. 232, but without commenting on subsequent-interpretation evidence from Howard himself. 

Continue reading "Lash on ITINBI, part 6: Subsequent Interpretations
Chris Green" »


Ilya Somin: Libertarianism and Originalism in "The Classical Liberal Constitution"
Michael Ramsey

Ilya Somin (George Mason University School of Law) has posted Libertarianism and Originalism in The Classical Liberal Constitution (New York University Journal of Law & Liberty, Vol. 8, No. 3, pp. 1045-1054, 2014 (Symposium on Richard Epstein, The Classical Liberal Constitution)) on SSRN. Here is the abstract: 

Richard Epstein’s The Classical Liberal Constitution is an impressive synthesis of between libertarian political theory and constitutional interpretation.

Part I of this brief essay summarizes Epstein’s important contribution to constitutional scholarship, particularly his sophisticated effort to integrate originalism and libertarianism. In Part II, I consider a possible tension in his theory: Epstein’s desire to leave room for government regulation that cures market failures could potentially be used to justify a wide range of nonlibertarian forms of government intervention that might undermine the very constitutional rights that he seeks to protect.

Part III suggests that the tension in Epstein’s theory can be partially mitigated by greater reliance on originalism with fewer policy-driven exceptions for market failures. Given real-world judges and political actors, this might result in greater economic efficiency as well as stronger protection for individual freedom approach. In the process of considering these issues, I focus on judicial interpretation of the Bill of Rights. It may be helpful to look at the original meaning not just in 1791, when the Bill of Rights was first enacted, but also in 1868, when, as a result of the Fourteenth Amendment it became incorporated against state governments. The case of the Public Use Clause of the Fifth Amendment, which Epstein and I have both written about extensively, exemplifies each of these points.


Brian Bix: New Legal Realism and the Explanation of Judicial Behavior
Michael Ramsey

Brian Bix (University of Minnesota Law School) has posted New Legal Realism and the Explanation of Judicial Behavior: Doctrine, Data, and High Theory on SSRN. Here is the abstract: 

This article was originally presented at the New Legal Realism 10th Anniversary Conference, held at the University of California-Irvine Law School in August 2014, for the panel, "Realism About Judges, Doctrine and Power."

The article explores the history of realism and the explanation of judicial behavior, with discussions of contemporary political theory approaches to judicial behavior (in particular, the "attitudinal model" of judicial behavior).

The article notes that while it is likely that most judges act in good faith when deciding cases, seeing themselves as open-minded in deciding the legal disputes before them, legal and political science observers (and others) notice patterns seemingly more related to ideology than doctrine. The idea that judicial decision-making is "political," and that in court decisions we are being governed as much by the people as by law, is now a commonplace, but the underlying reality of judicial decision-making remains complicated, with much work still to be done by empirical research. 

The article argues that there remains a role also for (non-empirical) legal theorists in this debate, to investigate and clarify what is meant by "legally determined outcomes," and to help to ascertain which issues are in fact legally determined and when even predictable outcomes might be explained by factors other than legal doctrine.


My Contribution to the Notre Dame Law Review Symposium on Bond v. United States
Michael Ramsey

Today the Notre Dame Law Review is hosting a symposium on treaty power after Bond v. United States where I'll be presenting a paper called "Congress' Limited Power to Enforce Treaties".  Here is the introduction (for now); I'll post a full draft on SSRN shortly.

This essay focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points.  First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning.  Second, Scalia’s structural policy concerns about effectively unlimited congressional power are nonetheless partly justified to the extent the Court substantially defers to Congress’ claims about what action is necessary to enforce a treaty.

Third, therefore, courts should not defer to Congress in this matter.  Although Congress has power to pass laws necessary and proper to enforce treaties, Congress must use this power in ways that can be shown to be necessary and proper.  In particular, review should occur on two dimensions.  Courts should make an independent assessment of the meaning of the treaty, including employing a presumption that the treaty does not affect purely domestic matters.  Courts should also make an independent assessment of the necessity and propriety of Congress’ legislation, prominently including in this assessment whether enforcement of the treaty is required to be done at the federal rather than the state level.

As an illustration, application of this approach in Bond v. United States would find the legislation (as applied to Bond) unconstitutional, both because the Chemical Weapons Convention did not reach Bond’s conduct and because, even if it did, state regulation was adequate to assume U.S. compliance with the Convention.  As a result, although Congress has power to enforce treaties (contrary to Justice Scalia’s view), its power is sufficiently limited that it does not pose an undue threat to federalism.

Lash on ITINBI, part 5: 1866
Chris Green

The first 4 parts of this review (1, 2, 3, 4) of Kurt Lash's very important book on the Privileges or Immunities Clause consider the differences between 1791 and 1868, the Bill of Rights's inherent unabridgeability, evidence that the IV/2/1 comity clause and the 14A were more closely related than Lash allows, and evidence that the guarantees of the privileges of citizens of the United States were understood as equality guarantees, i.e., entitlements to enjoy the same rights as similarly-situated fellow citizens of the United States.

The theory that the privileges of citizens of the United States are only those set out elsewhere in the Constitution, which I call ITINBI--incorporation, total incorporation, and nothing but incorporation--also has trouble with three very-prominent aspects of the 1866 debate over the Privileges or Immunities Clause: (a) the association of the Privileges or Immunities Clause with the Civil Rights Act of 1866, which included rights like the freedom of contract, the right to testify, and the right to own land, not enumerated expressly in the Constitution; (b) Republican non-ITINBI explanations of the lack of voting rights, and (c) Republican failure to invoke ITINBI to rebut Democratic charges of indeterminacy.

CRA1866. To his credit, Lash at 196 n.76 quotes at length Speaker of the House Schuyler Colfax's August 7 explanation of the Privileges or Immunities Clause (available in the fantastic Cincinnati Commercial collection):

We passed a bill on the ninth of April last year, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease, and sell property, and be subject to like punishments. That is the last law upon the subject.

Colfax's examples of the rights of citizens of the United States were, of course, not rights in the Bill of Rights. As Lash notes, the Cincinnati Commercial collection contained "many similar examples." Lyman Trumbull argued the same way on August 2, and Zachariah Chandler on October 22; Thaddeus Stevens on September 4 noted his agreement with Colfax. Bond quotes a similar statement from  the Old North State of October 6. McPherson quotes the American Gazette on September 28 and the Baltimore Gazette on February 3, 1867. Similar statements also were made by General John A. Logan in the Butler County, Pennsylvania American Citizen of September 5 and in a South Carolina Republican platform reported by the Charleston Daily News for July 28, 1870.

Continue reading "Lash on ITINBI, part 5: 1866
Chris Green" »


Jonathan Adler on King v. Burwell
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: The test to textualism in King v. Burwell: A Reply to Abbe Gluck (a long post setting out the textualist argument in the Obamacase subsidies case and responding to Professor Gluck's view that textualism acutally supports the government's position).