Appointing an Originalist Supreme Court Justice
Mike Rappaport

In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment.

Whelan largely agrees with this, but he points out that only certain Presidents will be willing to incur those costs. That is certainly true. I would assume that both sides believe that it is important to elect a President who is committed to originalism and lawfulness, and therefore who would be willing to fight the good fight on this issue.

2. Paper trails are an asset, not a disqualification.

Whelan agrees with Blackman and Barnett’s view that “SCOTUS-wannabees” who “spend their careers seeking the approval of others” are “the exact sort of people who will be cowed by the Beltway social pressures and the New York Times editorial page.” While I agree that paper trails provide useful information, obviously they come with costs. If one’s party does not control the Senate, then a controversial paper trail can be a big liability and lead to a failed nomination. The loss of the Bork nomination was harmful not only to President Reagan, but to originalism. Of course, Bork’s problem was not simply his paper trail, but also his ineffectiveness in testifying before the Senate.

3. Reject clichéd calls for “judicial restraint.”

Whelan disagrees here, arguing that cliches can be useful and that one must be concerned not only with underenforcement of the Constitution (which judicial restraint might suggest) but also overenforcement (by protecting rights that are not in the Constitution).

The disagreement here largely turns on the fact that Blackman and Barnett are in favor of a much more “engaged” or “activist” judiciary than Whelan is.

I tend to be skeptical of judicial restraint. My working view is that the Constitution should be interpreted in a neutral manner, neither placing a finger on the scale for unconstitutionality nor constitutionality. It is true that there is some evidence, put forward by John McGinnis, that might be used to show that the judiciary should not hold provisions unconstitutional unless there is a manifest contradiction or some higher showing than a neutral standard would require. But so far I remain skeptical.

4. Focus on the Constitution, not issues du jour.

While Whelan again disagrees, Blackman and Barnett has some good points here about how it is difficult to predict which future issues will come before the Court and how decisions about specific cases do not indicate how the judge will decide other cases. Blackman and Barnett also argue persuasively that the President should only choose judges who are originalists. It is true, as Whelan argues, that issues du jour can be revealing. Therefore, I would of course recommend considering both the judge’s jurisprudence and his proposed resolution of particular issues, but with the focus on the jurisprudence.

5. Focus on clauses, not cases.

I agree with Blackman and Barnett here that a focus on clauses is extremely useful. While Whelan argues that answering questions about clauses can be avoided by prospective justices just as easily as questions about cases, I don’t think that is quite right. The clause is a more general matter and it is harder for a prospective justice to ignore general questions.

In the end, it is easy to overstate the disagreements of Whelan with Blackman and Barnett, since both sides are in favor of originalism, albeit different versions. Still, these are important questions for  appointing the next member of the Court and avoiding the mistakes of the past.

Brian Leiter: Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature
Michael Ramsey

Now published in the Hastings Law Journal, Brian Leiter: Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature.  (Via Leiter Reports)

I posted on this article -- actually the 2015 Mathew O. Tobriner Memorial Lecture at Hastings Law School -- earlier here.  But its publication is an excuse to quote the provocative introduction: 

I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice among the legally viable options based on the moral and political values of the Justices, and not simply on the basis of legally binding standards. The latter claim is, in part, a jurisprudential thesis about what constitutes “legally binding standards.” I shall defend the first claim by reference to the most plausible account of the nature of law—the legal positivist theory developed by H.L.A. Hart and Joseph Raz.

Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role. Thus, it should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure, there is always media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This antidemocratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent.

I agree with pretty much everything in the first paragraph.   And the Court's 2014-15 term I think reinforced this view in many people's minds, not just because it turned out that "established by a state" meant "established by the federal government" but also because it turned out that "prescribed in each State by the Legislature thereof" meant "prescribed in each State by a body which is not the Legislature thereof."  

But arguably there's an alternative to the second paragraph: to make what the Court does less dependent on the Justices' moral and political judgments and more dependent on legally binding standards.  That, I take it, is the originalist/textualist project.  And in my view, an important step in assessing the originalist/textualist project is establishing the proposition in the first paragraph.  That is, there is (perhaps) a choice between Justices proceeding by their moral and political intuitions and Justices proceeding by the text and original meaning.  But there isn't (much of) an alternative.  It's one or the other.  Once we see it that way, then we can decide which is best.

To be clear, I think there are some things to be said for the Supreme Court as a Super-Legislature (or rather, I would say, as the third branch of a three-branch legislature, whose consent is required for all legislation).  I am most interested in seeing the choice express in those terms.


Seth Barrett Tillman on Ex Parte Merryman
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Ex Parte Merryman:  Myth, History, and Scholarship (Military Law Review, forthcoming 2016) on SSRN.  Here is the abstract:      

Ex parte Merryman is iconic. It is, arguably, the first major American case testing the scope of lawful military authority during war time. Not only during a war, but during a civil war. Not only were the civilian (judicial) authorities in conflict with the military authorities, but the Chief Justice of the United States clashed with the President — or, at least, that is the story as it is commonly told. It is an 1861 case, but the stakes were large and, sadly, the issues remain relevant if not eternal. 

However, the standard restatement of the facts and holding of Ex parte Merryman appearing in many (if not most) law review articles is wrong. Moreover, these mistakes are not unique to academic lawyers; a fair number of judges, historians, and academics in allied fields make the same or very similar mistakes. These repeated errors are somewhat surprising because Merryman is, if not a leading case, only one short step removed from the received case law canon. To put it another way, what is frequently written about Merryman is a series of myths. This Article seeks to disentangle Merryman’s many myths from reality.


Eric Ruben & Saul Cornell: Firearm Regionalism and Public Carry
Michael Ramsey

Eric M. Ruben (New York University - Brennan Center for Justice) and Saul A. Cornell (Fordham University) have posted Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context (Yale Law Journal Forum, Vol. 125, 2015, forthcoming) on SSRN.  Here is the abstract:      

In recent years, following the Supreme Court’s landmark originalist opinion in District of Columbia v. Heller, courts have been asked to strike down restrictions on the public carrying of handguns on the basis of the original understanding of the Second Amendment. One of the key sources used to justify this outcome is a family of opinions from the antebellum South asserting an expansive right to carry weapons in public. In this essay we explore whether that body of case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional conception of this right. We discuss how the South’s distinctive culture of slavery and honor influenced both public carry and regional jurisprudence, and how the case law originating from that culture cannot be extended to the rest of the country without explanation. We then draw on new post-Heller research to discuss an alternative American tradition — predominant outside the South — that was less enthusiastic about public carry and more accepting of public carry regulation. This analysis suggests that the view of the right to bear arms expressed in the nineteenth-century Southern opinions falls woefully short of reflecting a national consensus. Moreover, judges seeking historical guidance in public carry cases today should look to the alternative tradition that presumed the constitutional soundness of broad public carry restrictions



Amanda Tyler: Assessing the Role of History in the Federal Courts Canon
Michael Ramsey

Amanda L. Tyler (University of California, Berkeley - School of Law) has posted Assessing the Role of History in the Federal Courts Canon: A Word of Caution (Notre Dame Law Review, Vol. 90, No. 5, 2015) on SSRN.  Here is the abstract:      

One of the most pervasive and important debates in federal courts jurisprudence is over the role that history should play in interpreting Article III of the United States Constitution. To that end, federal courts jurisprudence is not altogether different from constitutional law jurisprudence more generally. But in the federal courts arena — more so than in the broader domain of constitutional law — originalism has always wielded tremendous influence over much of the judicial and scholarly thinking. It is for this reason that a distinct conversation about its role in the federal courts canon is appropriate.

There is little question that in the field of federal courts, historical study has a great deal to contribute to modern debates. Indeed, historical study holds enormous potential to illuminate the founding purpose behind constitutional provisions, to unearth contemporary meanings associated with terms of art that were included in the document, and to uncover important evidence relating to historical practices and context, which in turn can shed light on the background understandings and assumptions that underlie constitutional text. But sometimes — if not often — the historical record on important questions of federal courts jurisprudence is absent, incomplete, or more complex than jurists and scholars tend to acknowledge. In keeping with this idea, one should never forget that certain aspects of the Constitution — including Article III and the structural framework within which it is situated — represented major innovations in their time. At the Founding, the concept of federalism — and with it the idea of two sets of courts, state and federal — was entirely new. Moreover, the separation of powers framework was, at the least, a transformation of the British model, if not a dramatic departure from it. Against this backdrop, it would be curious indeed if the details of the Article III power were fully settled from the outset. More likely, as Madison recognized early on, there would need to be a “liquidat[ion]” of meaning over time.

Accordingly, I wish to offer a word of caution about making historical arguments in federal courts jurisprudence. Specifically, in undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. As historian Jack Rakove has observed, the Founding period documents are the product of collective decisionmaking “whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine compromises and agreements to disagree.” In other words, at least to some extent, we must treat the period as a work in progress.


Michael Uhlmann: Two Cheers for Originalism
Michael Ramsey

At the Claremont Institute website, Michael Uhlmann (Claremont Graduate University, Department of Politics and Policy): Two Cheers For Originalism (Claremont Review of Books, Vol. XV, No. 2, 2015), reviewing (favorably) Michael Stokes Paulsen and Luke Paulsen's The Constitution: An Introduction.

From the conclusion (after noting the Paulsens' sharp critiques of substantive due process):

On a practical level, it is fair to ask what the critique of substantive due process has achieved. The answer, I’m afraid, is precious little, as Obergefell shamelessly reminds us. For the better part of half a century, originalists have railed against liberal Lochnerism, while the progressive Zeitgeist has moved relentlessly on. Liberals talk about justice, the expanding universe of human rights, and the Constitution’s duty to keep pace with what Justice Oliver Wendell Holmes called the “felt necessities of the times.” Meanwhile, conservatives talk about the importance of respecting procedural proprieties. The point is well taken, but is it likely to attract hearts and minds?


There is much more to be said about all this, of course, and I would not expect that the critique of substantive due process will be abandoned altogether. But, as I say, it certainly needs rethinking. Arguments from process alone have shown themselves to be of little avail against the juggernaut of rights claims. Sooner or later, constitutional conservatives have to start talking once again about the origin and nature of rights. Perhaps Michael and Luke Paulsen can contribute to that conversation in the next edition of their wonderful introduction to the Constitution—and, let us hope, many future editions as well.

(Via Powerline).


Lee Strang: Why the Declaration of Independence Is Not Part of the Constitution
Michael Ramsey

Lee J. Strang (Georgetown Center for the Constitution; University of Toledo College of Law) has posted Originalism's Subject Matter: Why the Declaration of Independence Is Not Part of the Constitution (Southern California Law Review, Vol. 89, 2015) on SSRN.  Here is the abstract:

Scholars across the ideological spectrum have argued for a unique role for the Declaration of Independence in constitutional interpretation. These scholars’ arguments fall into two general categories: (1) the Declaration is the “interpretive key” to the Constitution’s text’s meaning; and (2) the Declaration is itself part of the Constitution. In this Essay, I argue that, from an originalist perspective, the Declaration is not part of the Constitution. 

I argue that originalism’s subject matter—that which originalism interprets — is — and is only — the document in the National Archives that begins “We the People of the United States,” along with canonical amendments. Therefore, even though the Declaration is a rich data source for the Constitution’s original meaning, it itself is not a subject of constitutional interpretation. 

This Essay proceeds in three parts. In Part II, I briefly describe the debate over the Declaration’s role in constitutional interpretation. Part III argues that, based on originalism’s own commitments, only the written Constitution is the subject matter of constitutional interpretation. Part IV shows that this limitation of the Constitution to solely the written Constitution fits both important and widely accepted facets of our legal practice. I conclude, in Part V, by suggesting that this limitation of the subject matter of constitutional interpretation to the written Constitution also comports with the natural law tradition’s conception of law as an authoritative, prudential, social-ordering decision, aimed at procuring the common good and human flourishing.

 Via Larry Solum at Legal Theory Blog, who adds:  "I'm thrilled that Strang will be at Georgetown this semester.  Highly recommended!"


Stephen Griffin on the Living Constitution
Michael Ramsey

At Balkinization, Stephen Griffin: The Living Constitution: A Reconsideration.  From the introduction:

After a series of posts evaluating the new originalism [ed.: see here], I’m moving on to assess conventional notions of the living Constitution.  Let’s begin with two vignettes.  Consider the comprehensive exchange between Robert Bennett and Lawrence Solum in Constitutional Originalism: A Debate (2011) [ed.: see here].  Solum’s exposition of the new originalism has to be one of the most clear-headed and well-argued defenses of any theoretical position I’ve ever read.  It’s a minor masterpiece that I would recommend to anyone.
But note that in response, Bennett does not actually defend living constitutionalism.  That is, Bennett deliberately offers no normative defense of the argumentative tradition known as the “living” Constitution.  From his point of view, living constitutionalism was inevitable at some point given the existence of judicial review and broader developments in American society.  However general this sounds, Bennett is clear enough that the living Constitution (somewhat paradoxically) is a matter of history – something that already has happened in the course of Supreme Court adjudication that (presumably) can’t be altered.  I think this is an important clue about how living constitutionalists tend to think and why sometimes there is a lack of meaningful exchange between the two positions.  And one of my fundamental points in this and the next set of posts is that the idea of the living Constitution should itself be understood historically, through the lens of historicism.


New Book: "Judicial Review in an Objective Legal System" by Tara Smith
Michael Ramsey

Recently published: Judicial Review in an Objective Legal System (Cambridge Univ. Press 2015), by Tara Smith (Univ. of Texas, Philosophy).  Here is the book description from Amazon:

How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of Originalism, Living Constitutionalism, and Minimalism - to present a new approach to judicial review. She contends that we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights.


Jack Balkin: The Construction of Original Public Meaning
Michael Ramsey

Jack M. Balkin  (Yale Law School) has posted The Construction of Original Public Meaning (Constitutional Commentary, forthcoming 2016) on SSRN.  Here is the abstract: 

Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn have recently shown that during the ratification of the Constitution in 1787-1788, German and Dutch translations of the Constitution were distributed to non-English speakers in the crucial states of Pennsylvania and New York. These translations differ from the English text in interesting and important ways. As a result, English speakers may have understood the proposed Constitution in one way, while non-English speakers may have understood it quite differently.

This essay uses this example to show why original public meaning is not a set of facts that lawyers simply discover and report. Rather, it is a theoretical construction that lawyers fashion in order to do the work of constitutional interpretation. There is no single way to construct original public meaning from the materials of the past. What we do construct depends in part on what we think constitutions are for and how they are supposed to work. It also depends on the practical needs of lawyers in search of a distinctively legal meaning that they can employ in legal argument.

Accounts of original public meaning bring some parts of the past forward and leave others behind; they view the past through the lens of theoretical and practical commitments. This would be true even if there had been only one version of the Constitution distributed in English in 1787-1788, because there are likely to be multiple understandings of the meaning of even a single text among the ratifying public. If our account of original public meaning is at all sensitive to the actual understandings of actual people living at the time of adoption, it will pick up these disagreements, and it will have to decide what to do with them. Perhaps the best way to deal with this problem is to choose a version of original public meaning that is the least sensitive to these differences in understanding, and that focuses as much as possible on areas of likely and overwhelming agreement. This approach won’t solve all problems, as Mulligan and her colleagues demonstrate. But it will create fewer difficulties than other approaches to original public meaning.

Accordingly, the second part of the essay defends a relatively “thin” theory of original public meaning—essentially confined to the original semantic meaning of the words, taking into account any generally recognized terms of art, and any background context necessary to understand the text. First, a thin theory of original meaning is most consistent with how written constitutions operate and what they are for; I call this a “framework” model of constitutions, as opposed to a “skyscraper” model. Second, because it focuses on areas of likely agreement, a thin theory is best equipped to deal with inevitable differences of understanding and belief among the ratifying public. Third, a thin theory features a division of labor between interpretation (which focuses on original public meaning) and constitutional construction, which deals with questions that cannot be decided by original meaning alone. Because constitutional construction treats history as a resource, not as a command, it is better able to deal with disagreements among the ratifying public, as well as the recurrent problem of translating the ratifying public’s concerns in their time to our concerns in our own. Although it excludes a significant amount of history from the narrower task of interpretation, the thin theory makes far more history available for the important task of constitutional construction.

(Via Balkinization).