05/28/2022

The Debate about “the” Original Meaning of the Fifth Amendment’s Due Process Clause
David Weisberg

Lawrence Solum and Max Crema have engaged, on this blog, in an interesting debate with Andrew Hyman regarding the proper interpretation of the phrase “due process of law” in the Fifth Amendment.  The former hold that the original meaning of the phrase “only requires that the federal government secure the appropriate (or ‘due’) writ or precept before depriving an individual of life, liberty, or property”, while Hyman contends that the phrase “basically meant proceedings owed according to both procedural and substantive law, including writs established by law, as modified by later federal statute law and the U.S. Constitution.”  (Emphasis added.)

I want to comment on one aspect of the debate.  Solum and Crema say this about their methodology:    

To answer [the] question [how the phrase “due process of law” was understood in 1791], we analyzed more than 600 different founding-era sources.  First we used methods associated with corpus linguistic analysis to understand how founding-era Americans used the terms “process” and “process of law.”  Our results were surprising.  We found that “process” was used narrowly to mean writs (rather than more broadly to mean legal procedure) in 84% of sources.  The same was true for “process of law” in 74% of sources.  To put it plainly: when the Founding generation spoke of “process,” they meant writs.

We then examined a wide collection of colonial American documents that use the phrase “due process of law,” including colonial declarations of rights, early statutes, case reports, and legal treatises.  We once again found that most of these documents used “due process of law” to mean writs, rather than procedure.

In light of the foregoing, I think it is obvious that it cannot “plainly” or in any other way be said that, when the founding generation spoke of “process,” they meant writs.  The very results documented by Solum and Crema establish that the phrase, as used by the founding generation, was ambiguous—sometimes (most frequently) it had a relatively narrow meaning (that is, limited to procedural writs), but other times (less frequently) it had a broader meaning (encompassing both procedural writs and substantive law).  The less frequent meaning, by Solum and Crema’s own reckoning, was not anything like infinitely vanishing in frequency.  Twenty-six percent or even sixteen percent is not close to zero percent.  

Ambiguity was a feature of language in 1791, just as it is today.  If the original meaning of a phrase was ambiguous, one cannot properly determine the original meaning of the phrase by focusing on the most frequent meaning.  (What would Solum and Crema have decided if the frequency of the narrow meaning had been 51%?)  An ambiguous phrase does not have one—that is, “the”—original meaning.  That is exactly what it means for a phrase to be ambiguous.  

Michael Smith: The Present Public Meaning Approach to Constitutional Interpretation

Michael L. Smith (Glaser Weil Fink Howard Avchen & Shapiro LLP) has posted The Present Public Meaning Approach to Constitutional Interpretation (Tennessee Law Review, Vol. 89, forthcoming 2023) (58 pages) on SSRN.  Here is the abstract:

Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism ultimately fall flat if critics fail to propose preferable alternative to originalism. After all, it takes a theory to beat a theory.

This Article proposes an alternate theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This straightforward alternative has attracted surprisingly little discussion in the originalist literature until Frederick Schauer’s recent article, Unoriginal Textualism, argued for the theory’s feasibility. While Schauer devotes much of his article to the claim that the present public meaning approach is theoretically possible, his discussion of why such an approach is preferable to originalism is limited.

This Article picks up where Schauer leaves off and argues that the present public meaning approach is preferable to originalism. The present public meaning approach to constitutional interpretation is a better means of constraining judges, and leads to judicial decisionmaking that is more transparent and predictable. It also better achieves goals of democratic legitimacy by taking into account modern views on indeterminate, value-laden language in the Constitution and its amendments and by accounting for significant expansions in the right to vote since the founding. Additionally, the present public meaning approach avoids significant implementation obstacles originalism faces, and is more likely to lead to desirable results by better accounting for present circumstances.

This Article does not contend that the present public meaning approach is the best approach to constitutional interpretation. But it is still preferable to originalism—avoiding numerous shortcomings and critiques against originalist methodology, and preferable in light of many normative considerations that originalists claim to honor. Originalists must therefore take the present public meaning approach seriously when defending their theories of constitutional interpretation.

Often, especially as to technical provisions, I think present public meaning doesn't differ that much from original public meaning, which is why (in my view) original meaning originalism is, or should be, heavily textualist. But sometimes it does, and I'm not sure of the justification for letting our basic law be determined by random changes in language.  More importantly, though, I think in many cases the present public meaning isn't distinct from what one thinks the Constitution ought to mean.  Consider "due process of law": does its modern meaning include "substantive" due process?  That question isn't really separable from whether one thinks it should include "substantive" due process. Thus it is not really an objective test.

05/27/2022

Eric Segall on New Originalism (with my Objections)
Michael Ramsey

At Dorf on Law, Eric Segall: The Concession that STILL Dooms Originalism.  From the core of the argument: 

Under the New Originalist approach, and in the [in]famous construction zone, judges have discretion to bring an almost endless array of post-ratification facts and changed cultural values into consideration when resolving constitutional cases, diluting any meaningful constraining effect of the text’s original meaning. For example, I previously quoted Professor Solum himself for the following proposition shared by most New Originalists: 

[I]n Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender. . . . Bradwell could have been understood as consistent with the [Privileges and Immunities Clause] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

Notice that Solum does not merely refer to changed facts but "changing beliefs about facts." This idea is similar to Professor Barnett's belief, echoed by almost all New Originalists, that judges today can discard expected applications, like women are not protected from discrimination in public employment by the 14th Amendment, if facts (read values) have changed (enough). It is on a similar principle that Professor Barnett once expressed that he "is sympathetic" with Professor Jack Balkin's claim that Roe v. Wade could be justified on an originalist basis even if no one in 1868 thought that abortion was a constitutionally protected right. 

But the constitutional text that gives rise to almost all modern lawsuits was ratified in either the late 18th or middle 19th centuries, when our country was different in most material ways than today relevant to lawsuits that are brought today. What all of that means is that this form of originalism (without super-strong deference) is indistinguishable from living constitutionalism, or for that matter common good constitutionalism. There is simply no constraint on judges from this form of originalism in litigated constitutional cases.

He goes on to argue:

The non-delegation doctrine is all the rage today among many originalists. But even if there was a strong originalist basis for that view (and there isn't), a judge could always say, "well, we now know what caused the New Deal and that changes how judges deal today with the expected non-delegation doctrine.” Similarly, let's say the unitary executive theory has a sound originalist basis. But no one in 1789 could destroy the world by pushing a few buttons. That new fact could make a huge difference in how we view the war-making power and under what circumstances the President can fire people or not in the chain of command or whether the President can use offensive weapons to kill US citizens abroad who we think are are terrorists but no court has so found. The point is there are always changing facts relevant to all litigated constitutional cases that involve text written so long ago. And remember, a judge does not have to find the facts have actually changed, just that beliefs about facts have changed.

Neither Professor Solum nor Barnett has ever responded to this argument, though they are well aware of it. In fact, I made this argument in a room they were both in at the San Diego Originalism Conference in February. 

I can't speak for Professors Solum and Barnett, and I don't really consider myself a New Originalist (not with capital letters, anyway). But I think there's a fundamental difference between the Bradwell example and the separation of powers examples Professor Segall gives.

His examples are ones in which a judge concludes, based on new experiences, that the structure established by the Constitution's original meaning is normatively bad, and so decides to change it.  I'll take the unitary executive point, as I know that area the best.  Assume Justice Scalia's view in Morrison v. Olson is correct as an original matter -- that is, the original meaning was that all of the executive power had to be vested in the President or someone fully controlled by the President.  The modern presidency is of course different from the eighteenth century version on many dimensions.  That may make the framers' design unwise.  But it does not change the original meaning of the Constitution or the way it would apply to modern circumstances, which is that all of the executive power had to be (and today must be) vested in the President or someone fully controlled by the President.  No fact relevant to the application of the original meaning has changed, although facts relevant to the wisdom of the original meaning may have changed.  I think no originalist would allow the application of the original meaning to change in these circumstances.

Contrast Bradwell:  assume the original meaning of the relevant clause was that generally people must be treated equally with respect to certain rights, including practicing law, but differences were tolerated where people were differently situated.  Further assume that the reason the Court upheld the ineligibility of women in Bradwell was the (mistaken) factual claim that women were differently situated with respect to practicing law.  We now know the factual claim was mistaken.  One might well say, then, that the original meaning now applies differently.   That's not because we think the original meaning needs to change in light of new circumstances.  The original meaning hasn't changed: the meaning is still that generally people must be treated equally with respect to certain rights, including practicing law, but differences may be tolerated where people are differently situated.  Rather, it's because we now understand that people originally thought to be differently situated are not differently situated.  The change is not in meaning, but in facts underlying how the meaning is applied.  That's completely different from the unitary executive example, where the meaning itself would have to change to yield a different result.

05/26/2022

Kurt Lash: Roe and the Original Meaning of the Thirteenth Amendment
Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted Roe and the Original Meaning of the Thirteenth Amendment (16 pages) on SSRN.  Here is the abstract:

The current debates over Roe v. Wade as a substantive due process right have prompted a number of scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery" and "involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument concede that the right to abortion was not the expected application of the Thirteenth Amendment, but insist that a forced continued pregnancy falls within the original meaning of the Amendment’s terms.

This essay explores the history behind the adoption of the Thirteenth Amendment and conclude the pro-Roe reading of the Thirteenth Amendment is incorrect. The original meaning of the Thirteenth Amendment is defined by the text upon which it was based and defended: The 1787 Northwest Ordinance. The framers of the Amendment intentionally used this text precisely because it was well known and had a narrow historical meaning. As used in the Ordinance, the terms “slavery and involuntary servitude” referred to a specific and legally codified “private economical relation” between a “master” and a “servant.” Under slavery--the most severe form of “involuntary servitude”--both the women and the unborn child were considered property equally subject to dismemberment or destruction. The Thirteenth Amendment applied the prohibitions of the Ordinance throughout the United States and forever abolished the idea that one could hold “property in man.” However, nothing in the Amendment (or the Ordinance) affects laws restricting the termination of a pregnancy—laws that were common throughout antebellum America.

05/25/2022

James Heaney on Originalism and the Dobbs Draft Opinion
Michael Ramsey

At Law & Liberty, James Heaney: Kindling a New Originalist Fire.  From the core of the argument: 

The leaked draft majority opinion, by the “practical originalist” Justice Samuel Alito, would indeed be a significant victory for pro-lifers, should it become official. Yet the draft not only does not depend on originalist textualism; it bears almost no evidence of being influenced by originalism at all!

...

Roe v. Wade and its sequel, Planned Parenthood v. Casey, located a constitutional right to abortion in the “due process” clause of the Fourteenth Amendment (or, alternatively, in the Ninth Amendment). An originalist  Dobbs  decision would begin with a fair but thorough evaluation of the original public meaning of the due process clause, before proceeding to the textual basis for “substantive due process” rights, their application (if any) to abortion, and the meaning and justiciability of the Ninth Amendment. This opinion would consider historical and semantic evidence regarding the Amendments’ objective meaning, according to the understanding of a reasonable person at the time of their adoption; the Amendments’ expected applications, insofar as they revealed the objective principles the Amendments embody; and finally, the application of that objective meaning to the question of abortion, using tools of constitutional interpretation or construction as appropriate. The result of this inquiry would likely foreclose not only a constitutional right to abortion, but, if Justice Thomas’s unflinching originalist case law is any indication, the entire line of substantive due process cases as well.

Fortunately for the entire line of substantive due process cases, Alito’s draft majority does nothing of the sort. Alito accepts without question the existence of substantive due process rights and their grounding in the Fourteenth Amendment. He likewise accepts the entire body of precedents that guide “discovery” of substantive due process rights. The only precedents Alito dares to doubt are Roe and Casey themselves. Those are the cases directly challenged by Mississippi in its arguments to the Court, so the opinion limits itself to those cases. The opinion does favorably cite cases from the textualist “anti-canon,” such as Griswold (albeit indirectly), but the reader will ctrl-F in vain for a single reference to “original public meaning” in Alito’s draft majority.

Having accepted substantive due process rights and the entire body of case law built on them, Justice Alito turns to the question of whether Roe (and, by extension, Casey) were correctly decided. In short, rather than analyzing them on sturdy originalist terrain, Alito chooses to confront Roe and Casey on their home turf. He grants them every advantage, every precedent they ask for, every interpretive standard they rely on—no matter how far afield it may take him from the original public meaning of the Constitution. After construing everything in their favor, Alito then asks whether  Roe or Casey demonstrate a constitutional right to abortion, according to their own putative standards.

So will Justice Thomas have a concurrence taking the originalist approach? (I suspect so).

05/24/2022

Crema and Solum Reply to Hyman
Max Crema and Lawrence Solum

We are grateful for Andrew Hyman’s engagement with our recent article on the original meaning of “Due Process of Law” in the Fifth Amendment.  The key question for originalists is the meaning of “due process of law” in 1791.  To answer that question, we trace the history of the phrase from the fourteenth century through to the founding-era.  We then investigate how “process,” “process of law,” and “due process of law” were used in founding-era documents, employing both traditional methods of historical research and methods associated with corpus linguistic analysis.  We conclude that the original meaning of the Fifth Amendment’s Due Process of Law Clause is much narrower than previously suspected, and only requires that the federal government secure the appropriate (or “due”) writ or precept before depriving an individual of life, liberty, or property.

Although Hyman briefly touches on our founding-era evidence (more on that later), he principally focuses on the meaning of “due process of law” in early English history.  Hyman suggests that “due process of law” was “essentially synonymous” with a much broader and more expansive term, “law of the land,” and therefore concludes our narrow definition of the phrase is mistaken.  We do not agree and offer this response.

As we set out at some length in our article, “law of the land” had a much broader meaning than “due process of law.”  According to Sir Edward Coke, “law of the land” meant the “legem angliae” (the law of England) and encompassed “the Common Law, Statute Law, or Custom of England.”  2 Edward Coke, The Institutes of the Laws of England 46, 51 [hereinafter Institutes].  Coke’s Institutes regularly uses “law of the land” to refer to England’s substantive laws, writing, for example, that a child born during the period of his parents’ engagement will be deemed mulier—born in wedlock—“by the law of holy church . . . albeit by the law of the land he is a bastard.”  1 Institutes 244 (emphasis added).  Coke’s writings are full of similar examples (many of which are documented in our article).  As Justice Powys’ opinion in Regina v. Paty explains: the meaning of “law of the land” is “not confined to the common law, but takes in all the other laws, which are in force in this realm.”

“Due process of law,” by contrast, was defined much more narrowly.  As the late-Justice Scalia once explained, the “historical evidence suggests that the word ‘process’ in [‘due process of law’] referred to specific writs employed in the English courts.”  Our article charts this evidence in detail.  For now, however, it is enough to point to Coke’s own understanding of “due process of law,” which he defined to mean “indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.”  2 Institutes 50. 

Coke believed the “law of the land” meant the “the Common Law, Statute Law, or Custom of England” while “due process of law” meant writs, specifically “indictment or presentment [or] writ original of the Common Law.”  The concepts were related, but distinct.  Indeed, Coke is fairly clear that he understood these phrases to mean different things, explaining: “[N]o man can be taken, arrested, attached, or imprisoned but by due proces[s] of Law, and according to the Law of the Land.”  Id. at 52 (emphasis added); see also Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 429 n.82 (2010) (collecting similar statements by Coke that “seem to imply a distinction between the two concepts”).

Hyman’s post never grapples with this evidence of divergent meanings but instead points to a single passage from Coke that, he claims, “clearly” equates “law of the land” with “due process of law.”  Hyman is in good company; this passage has long been relied upon to equate the two terms.  In our article, however, we join the growing number of scholars to question this view and spend an entire section (which Hyman does not engage) explaining why it is mistaken.  We will not repeat our arguments here, except to note that the very passage Hyman relies on itself defines ‘by due process of law’ to mean: “by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by Writ original of the Common Law.”

Hyman claims that this sentence—which focuses on “indictment,” “presentment,” or “writ original” (all forms of process)––somehow has little to do with writs and is all about courtroom procedure.  According to Hyman, the words “in due manner” indicate that Coke intended to gesture towards something suspiciously like modern procedural due process doctrine.  But that reading is implausible: grammatically the “due manner” clause modifies the preceding “indictment or presentment” clause and not the sentence as a whole.  That makes sense—indictments and presentments were historically the province of grand juries.  At most, Coke is stating that the proper forms must be followed in securing the “due process” issued by the grand jury.  Hyman is correct that Coke is paraphrasing a statute from 1351 (not 1352), but that statute hurts, rather than helps, Hyman’s reading of Coke because the statute is even more clear that the “due manner” language refers to grand jury proceedings (or their equivalent), reading:

[N]one shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law . . . .”

1351, 25 Edw. 3 c. 4.

Hyman’s reading of this single passage from Coke is plausible if the passage is considered in isolation, but it is not the best reading.  And Hyman’s reading rapidly becomes untenable in view of the considerable evidence that Coke understood “due process of law” and “law of the land” to mean different things.  Moreover, Coke’s views—while important—are not dispositive of the ordinary meaning of the Fifth Amendment’s Due Process of Law Clause.  Our article discusses Coke at length because he is the traditional go-to for those who would define “due process of law” expansively, but the real question is how the phrase “due process of law” was understood in 1791. 

To answer that question, we analyzed more than 600 different founding-era sources.  First we used methods associated with corpus linguistic analysis to understand how founding-era Americans used the terms “process” and “process of law.”  Our results were surprising.  We found that “process” was used narrowly to mean writs (rather than more broadly to mean legal procedure) in 84% of sources.  The same was true for “process of law” in 74% of sources.  To put it plainly: when the Founding generation spoke of “process,” they meant writs.

We then examined a wide collection of colonial American documents that use the phrase “due process of law,” including colonial declarations of rights, early statutes, case reports, and legal treatises.  We once again found that most of these documents used “due process of law” to mean writs, rather than procedure.  As one popular Founding-era legal handbook (co-published by Benjamin Franklin) explained: “due process of law” meant “Indictment, or Presentment of good and lawful Men of the Place, in due Manner, or by Writ original of Common-Law,” and required that all seizures and commitments be made only upon “lawful authority” as conferred by a “Warrant or Mittimus.”

Hyman’s post discusses only two of our 600+ founding-era sources.  Hyman explains, without elaboration, that he has disregarded the bulk of the historical record because he is only “interested in how the term ‘due process of law’ was used in a context similar to the Due Process Clause.”  But the sources Hyman chooses to discuss—the above quoted legal handbook and a newspaper report of a speech by Alexander Hamilton—almost seem picked at random.  Although we do discuss these sources in our article, more obvious analogues to the Bill of Rights abound.  For example, Hyman might have considered our discussion of early colonial declarations of rights that use the “due process” language (pp. 492–95), the New York Rights Act of 1787 (pp. 497–99, 520–21), or New York’s Ratification Letter, which likely served as the inspiration for the Fifth Amendment’s Due Process of Law Clause (pp. 507–508).  We discuss these sources (and many more) in our article and urge interested readers to download a copy.

Turning to Hyman’s chosen terrain, we do not agree that the Conductor Generalis has little to add.  It was likely the most popular legal hornbook of the founding-era, widely used by both lay people and educated lawyers.  See John A. Conley, Doing It by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America, 6 J. Legal Hist. 257, 283 (1985).  The hornbook defines “due process” to mean “indictment,” “presentment,” or “writ original.”  It then goes on to explain:

[S]eeing that no man can be taken, arrested, attached, or imprisoned, but by due process of law, and according to the law of the land, these conclusions hereupon do follow:

1. That the person or persons which commit any have lawful authority.

2. It is necessary that the warrant, or mittimus, be lawful, and that [it] must be in writing under his hand and seal.

The hornbook’s list goes on, but you get the idea.  The right to “due process” meant the right to not be “taken, arrested, attached” etc. without a lawful warrant.

Finally, we come to Hamilton’s much debated comments on “due process” and “law of the land.”  The sole surviving report of Hamilton’s speech is vague, and its internal inconsistencies mean that there is something for everyone.  Compare Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process, 58 Emory L.J. 585, 630–32 (2009) (concluding Hamilton supported substantive due process) with Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85 (1982) (concluding Hamilton supported a weak procedural due process).  For example, Hyman elides that Hamilton discusses “law of the land” and “due process of law” separately and offers different definitions for each, undermining Hyman’s overarching argument.  Like much of the literature, we do not attach significant weight to these comments.

Our article advances a new understanding of the Fifth Amendment’s Due Process Clause, built on an exhaustive review of the available record.  We urge those who doubt our conclusions to read the article and consult the primary sources.

Crema and Solum on Due Process
Andrew Hyman

As Michael Ramsey recently described on this blog, Max Crema and Lawrence Solum have authored a new article arguing that the words “due process of law” in the Fifth Amendment of the U.S. Constitution originally had a much narrower meaning than the words “law of the land” in the Magna Carta. This is an instance where our current laws use ancient phrases, so studying some ancient history is necessary (SNL notwithstanding).

It's important to keep in mind that the word “process” had more than one meaning.  According to the leading law dictionary of the eighteenth century, “First, it is largely taken for all the proceedings in any action, real or personal, civil or criminal, from the beginning to the end; secondly, we call that the process by which a man is called into any temporal court….”  If the broader meaning is used, then the phrase in the Fifth Amendment matches up better with Magna Carta, whereas Crema and Solum support a narrower meaning.

As best I can tell, the framers of the Fifth Amendment would have understood the phrase “due process of law” in accord with binding judicial precedent.  The Queen’s Bench in 1704 had decided the case of Regina v. Paty (92 Eng. Rep. 232, 234), in which Justice Littleton Powys wrote:

By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority. And the law of Parliament is as much a law as any, nay, if there be any superiority this is a superior law.

As far as I know, this opinion by Justice Powys became a binding judicial precedent, and was part of American law after 1776 by virtue of the reception statutes enacted by the former colonies; I am not aware that Crema and Solum disagree on this point.  Moreover, this opinion by Justice Powys seems easily reconcilable with what Edward Coke had written early in the previous century:

But by the Law of the Land. For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8, where the words, by the law of the land, are rendred, without due process of law, for there it is said, though it be contained in the great Charter [Magna Carta], that no man be taken, imprisoned, or put out of his free-hold without proces of the Law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law. Without being brought in to answere but by due Proces of the Common law. No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land. Wherein it is to be observed, that this chapter is but declaratory of the old law of England.

Coke says here that “the words, by the law of the land, are rendred, without due process of law.” He also says here that “due process of law” is the “sense and exposition” of the term “law of the land.” That is why these two concepts have so often been understood as essentially synonymous by the great majority of judges and scholars who have addressed the matter.  As Justice Scalia correctly wrote in a 1991 concurrence: “Coke equated the phrase ‘due process of the law’ in the 1354 statute with the phrase ‘Law of the Land’ in Chapter 29 of Magna Charta….”

In contrast, Crema and Solum point to Coke’s phrase (in the block quote above) “by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.”   We should interpret that phrase, if possible, consistently with what Coke already wrote in the same sentence, so that the words “in due manner” mean that the whole proceeding against a defendant must be done in a manner that is due according to law.  Certainly, it would not be proper to interpret that phrase to mean “by indictment or presentment of good and lawfull men … or by writ original of the Common Law,” without proving that the material hidden by the ellipsis added nothing meaningful, especially since the “due manner” language was explicitly included in a 1352 statute. In my opinion, Coke was clearly equating “law of the land” with “due process of law,” and thereby affirming that the 1354 explanation of Magna Carta was just as protective as was the original Magna Carta in 1215.  

Although Crema and Solum focus on how “process,” “process of law,” and “due process of law” were used in founding-era documents, I am more specifically interested in how the term “due process of law” was used in a context similar to the Due Process Clause in the decades leading up to 1791 (the year before the Bill of Rights was ratified).  This narrow focus is justified because a word having more than one meaning is sometimes used in a sense that is less common, for example in this sentence: "I am not sensible of having done anything wrong.”  That is not an admission of being unwise or imprudent, but merely a statement that a person does not perceive having done anything wrong.  I have carefully looked at the interesting historical evidence presented by Crema and Solum that satisfy the narrow search criteria that I have described, but they do not change my mind.  For example, they quote a manual titled Conductor Generalis published in New York in 1764 which says this:

Or by the law of the land: That is, by due process of law, for so the words are expresly expounded by the statute of 37 E. 3. chap. 8. And these words are specially to be referred to those foregoing, to whom they relate. As none shall be condemned without a lawful trial by his peers, so none shall be taken, imprisoned, or put out of his freehold, without due process of law, that is, by the indictment or presentment of good and lawful men of the place, in due manner, or by writ original of common law.

I do not see that this Conductor Generalis significantly modifies what Lord Coke had said.  

Another major source that Crema and Solum cite is Alexander Hamilton's discussion in the New York legislature about New York’s statutory Due Process Clause, although they acknowledge Hamilton was somewhat unclear.  Hamilton said:

[The state constitution says] no man shall be disfranchised or deprived of any right he enjoys under the constitution, but by the law of the land, or the judgment of his peers. Some gentlemen hold that the law of the land will include an act of the legislature. But Lord Coke, that great luminary of the law, in his comment upon a similar clause, in Magna Charta, interprets the law of the land to mean presentment and indictment, and process of outlawry, as contradistinguished from trial by jury. But if there were any doubt upon the [state] constitution, the [statutory] bill of rights enacted in this very session removes it. It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words "due process" have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.

First, note that Hamilton deferred to Coke.  Second, he says that due process refers to “process and proceedings of the courts” which suggests he was using a broad rather than narrow meaning of “due process.”  Third, he says due process “can never be referred to an act of legislature” which (assuming he was correct) merely meant that the courts had to be involved in dispensing due process, not that the legislature had to be uninvolved.

“Due process of law” in the Fifth Amendment basically meant proceedings owed according to both procedural and substantive law, including writs established by law, as modified by later federal statute law and the U.S. Constitution.  If I am correct about that, then that clause in the Fifth Amendment is mainly a restriction on the executive and judicial branches.  However, that does not rule out some limitation upon Congress. For example, Congress obviously may not authorize the President to deprive people of liberty without due process of law (further examples are described at page 30 of this article of mine). 

05/23/2022

David Kopel on Whether Originalists Hate America
Michael Ramsey

A while back Andrew Koppelman published an essay titled Why Do (Some) Originalists Hate America?.  At Volokh Conspiracy, David Kopel has this response: Originalists Don't "Hate America".  From the introduction: 

In the Arizona Law Review, Professor Andrew Koppelman asks the provocative question Why Do (Some) Originalists Hate America?, 63 Ariz. L. Rev. 1033 (2021). Originalists who are denounced in the essay include Volokh Conspiracy contributors Randy Barnett (Georgetown), Sam Bray (Notre Dame), Stephen Sachs (Duke), Will Baude (Chicago), me (Denver), and frequent VC guest writer Rob Natelson (presently my colleague at the Independence Institute, formerly at Montana).

Koppelman presents two main arguments. First, some originalists, presumably including all of those he criticizes in the article, are radicals who "hate America."

Second, originalism as a methodology is inherently unstable because it makes the law dependent on the latest discoveries in obscure archives. The only example Koppelman cites for originalism having affected a case outcome is the Natelson-Kopel influence on Chief Justice Roberts' opinion in the Obamacare case, National Federation of Independent Business v. Sebelius. That example is weak, because the Natelson-Kopel argument simply elucidated Chief Justice Marshall's statement in McCulloch v. Maryland: the Necessary and Proper Clause is a grant of "incidental" powers, and not the grant of "a great substantive and independent power." 17 U.S. 316, 411 (1819).

This post first examines Koppelman's assertion that originalists "hate America." Next, it briefly addresses Koppelman's valid criticism of simplistic use of corpus linguistics. Koppelman points to what he considers to be the three prime examples of what he calls "Rules-Reductive Originalism": Randy Barnett on the Commerce Clause, Rob Natelson the Coinage Clause, and Natelson-Kopel on the Necessary and Proper Clause. The post examines each in turn.

Koppelman warns that originalism would create major changes in the law. That is true for the Commerce Clause. However, originalist approaches the Coinage Clause and the N&P Clause just validate the long-standing status quo. The originalist peril is not as dire as Koppelman worries.

I pretty much entirely agree with what Professor Kopel says.  Above all, it seems quite hyperbolic to contend that people who urge reforms in a particular area of American law "hate America."

(Thanks to Andrew Hyman for the pointer.)

 

05/22/2022

Angus McClellan on Originalist Methodology
Michael Ramsey

At Law & Liberty, Angus McClellan (James Madison Program, Princeton University): Getting Closer to the Constitution.  From the introduction:

The future of conservatism in the courts still lies in text-based originalism. But it is true that the current approaches to originalism often rely on an undisciplined hodgepodge of original sources. Indeed, originalism comes in forms that variously give greater or lesser weight to the convention debates, the Federalist, contemporary public perceptions, records from the state ratifying conventions, private letters, Anglo-American common law, historical events, congressional and executive action, early case law, and so on. This is all well and good, but it is unclear which sources deserve the most weight once the text itself becomes vague or ambiguous.

If jurists and scholars crave certainty and legitimacy in the judiciary, then the ultimate goal should be to arrive at a clear method of interpretation that consistently assigns weight to different categories of original sources on a hierarchical scale. Crystallizing text-based originalism into a more coherent and universally applicable method of constitutional interpretation would help to secure the legal principles that define and balance the American forms of liberty, order, justice, and power. We are not alone in this venture. The ghosts of giants still stand among the pillars of our libraries, waiting for us to rediscover their immortal remains. Some scholars just need to get back on their shoulders and start looking around.

With that in mind, originalists should, within the framework of the Blackstonian method of statutory interpretation, rely first on the earliest case law—rather than the latest precedents—when trying to determine the meaning of constitutional text. In other words, if the words of the Constitution are unclear or ambiguous, and if the context of those words fails to produce clear meaning, then the first non-textual step in determining meaning should be a close examination of the first eras of legal interpretation of those words, particularly in the federal judiciary. This is the judicial strain of what pre-Progressive jurists called “contemporaneous construction” or “contemporaneous exposition,” expressed by the legal maxim, contemporanea expositio est fortissima in lege. It is originalism generally—an umbrella term for what some modern jurists and scholars have divided into concrete originalism and abstract originalism. One might call the judicial strain advocated here as simply, “concrete legal originalism.”

While I agree that near-contemporaneous interpretations are reasonable evidence of the original meaning, I don't think they necessarily are the best evidence (nor would I necessarily privilege judicial interpretations over other commentators).  My view is that evidence of meaning from before the drafting and ratification is even better, when available -- because pre-constitutional interpretations of language later used in the Constitution isn't affected by how interpreters want the Constitution to be read after the fact.  Also I think one can distinguish between different types of immediate post-ratification interpretations.  For example, interpretations that run against the interpreters ideological or institutional interests are better than those that don't; and interpretations that rest on a rigorous explanation of the text are better that those that just express a view on what would be the best approach.  For my further thoughts, see the first part of this article: Missouri v. Holland and Historical Textualism.

05/21/2022

Saul Cornell on NYRPA v. Bruen
Michael Ramsey

At Slate, Saul Cornell:  The Horror in New York Shows the Madness of the Supreme Court’s Looming Gun Decision.  From the core of the argument (some rhetoric omitted):

... [T]he arguments and logic that Alito put forth in his leaked draft opinion in Dobbs v. Jackson Women’s Health Organization unambiguously support New York, not the gun rights group challenging New York’s law in [NYRPA v. Bruen]. Alito’s history, text, and tradition approach, if applied in a rigorous and neutral fashion, favors strict gun regulations such as New York’s [restricting the ability to carry guns in public]...

In his Dobbs draft, Alito drilled down into the history of regulation and rights during Reconstruction as the key to determining the constitutionality of abortion. In his earlier decision in McDonald v. Chicago, Alito correctly noted that the new state constitutions written after the Civil War abandoned the founding era’s obsession with militias and replaced it with a more individualistic language focused on self-defense. ... The same new arms-bearing provisions he cited as authoritative also expressly affirmed the right of legislatures to regulate guns in public. The original fear of British redcoats that had animated the founding generation had been supplanted by a new fear: gun violence.

Empowered by this recognition of express constitutional authority to robustly regulate arms in public, dozens of states and cities enacted laws limiting guns in public, including good cause permitting schemes similar to that in New York. ...

05/20/2022

Everybody's Doing It ...
Michael Ramsey

... reviewing Adrian Vermeule's Common Good Constitutionalism.  Here's Randy Barnett in the Claremont Review of Books: Deep-State Constitutionalism.  From the abstract:

In this review, I explain how "Common Law Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his own conception of the common good, preferring instead merely to assert it without considering other serious alternatives.

To make his case against originalism, Vermeule adopts the approach of Ronald Dworkin, which Dworkin formulated before the development of modern originalist theory. This leads Vermeule to seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it. And yet, in defending himself from the charge that his is just a version of living constitutionalism, Vermeule adopts the fundamental tenets of modern originalism: fixation and constraint. Like living constitutionalists who are "arm chair originalists," however, Vermeule then asserts without showing that the fixed original meaning of the text of the Constitution is so abstract and thin that it permits the direct pursuit of the common good by the government actors unconstrained by the text of the Constitution.

Surprisingly, the government actors Vermeule thinks are most well suited to pursue the common good and implement the natural law are those who work in the federal administrative state. To these bureaucrats he would have the judiciary largely defer--oddly except for environmental regulations where he would allow "public interest" lawsuits to protect the environment. Vermeule provides absolutely no reason to believe that his version of the public good--assuming it is correct--will actually be adopted and served by the administrative state.

Throughout Common Good Constitutionalism, Vermeule fails to confront the strongest versions of the positions he opposes, especially when it comes to originalism. But this book is not really a scholarly project. In my review, I situate it in the current political context to show how Common Law Constitutionalism is largely a work of constitutional polemics, which some social conservatives are finding appealing. But there is very little that is conservative--socially or otherwise--about Adrian Vermeule's commitment to the unfettered regulation of Americans by the deep state.

(Via Volokh Conspiracy.)

And from Richard Reinsch at the Daily Signal: Did the Conservative Legal Movement Err by Supporting Originalism? From the introduction:

Adrian Vermeule leads a growing chorus of critics on the right heralding some form of common goodism as the locus of constitutional interpretation in the judicial system. In “Common Good Constitutionalism,” Vermeule proclaims that originalism fails as a matter of constitutional interpretation because it is a deeply insufficient account of law. This is a critically flawed interpretation because it ignores that our written Constitution does not depend on a range of natural law principles for its interpretation.

The immediate triggers for Vermeule’s departure from originalism are the Supreme Court’s decisions in Obergefell v. Hodges (2016), which declared a constitutional right to same-sex marriage, and Bostock v. Clayton (2020), which extended the categories protected by the 1964 Civil Rights Act to include “gender.” The Justice Neil Gorsuch opinion employed a textualist reading of the Civil Rights Act of 1964 to make it apply to gender, not just sex, regarding discrimination. 

After these two decisions, the response from many conservatives became, If this is what originalism cannot prevent in the case of Obergefell, or what it delivers in the case of Bostock, then we need better thinking.

Vermeule informs, “Originalism is now in a decadent phase in which the elaborate theoretical structure propping it up dominates the landscape of the American legal right.” Indeed, so discredited is originalism that a “truly principled originalist would immolate his own method and transform himself into a classical lawyer, in an act of intellectual self-abnegation and self-overcoming.”

From the conclusion:

Vermeule is at pains to defend an administrative state that’s key development emerged in the same timeframe that he also thinks the classical legal tradition was sloughed off. He does not attempt to reconcile why or how this occurred or what it means for his overall project.

At a minimum, I would have thought that Vermeule would have wanted to show that the administrative state in America is not the outcome of pragmatism, scientism, and the belief in the efficaciousness of arbitrarily defined power to achieve progressive goals.

He does not consider Publius’s framing of tyranny as the joint exercise in one set of hands of legislating, executing, and judging laws. And that is the work of our administrative state, the part of government that Vermeule believes is most in touch with the natural law. The part of government that issues more than 3,000 rules and regulations a year compared to 90-100 actual laws passed by Congress annually. Such a configuration of power is a terrible temptation to its misuse.

05/19/2022

Akhil Amar on the Draft Dobbs Opinion
Michael Ramsey

I've been holding off posting on the leaked draft opinion in the Dobbs case, but this is a very significant essay, not just for what it says but also for who is saying it. In the Wall Street Journal, Akhil Amar: The End of Roe v. Wade -For a constitutional scholar and pro-choice Democrat, there are reasons to endorse the leaked draft opinion overturning the 1973 abortion decision—and to see it as vindication for a range of liberal priorities.  From the core of the argument:

Nor is there anything unusual in the leaked draft’s treatment of precedent. Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. ...

Precedents fall for many reasons. ... Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.

In 1954, in Brown v. Board of Education, the justices rightly buried their predecessors’ 1896 ruling in Plessy v. Ferguson, which had proclaimed the dubious doctrine of “separate but equal.” The best argument for this burial was that the Constitution really does promise racial equality, and racial segregation—American apartheid—was not equal. Likewise, the New Deal Court properly repudiated dozens of earlier Gilded Age cases that read property and contract rights far too broadly and in the process invalidated minimum-wage, maximum-hour, worker-safety and consumer-protection laws of various sorts—laws that are now seen, quite rightly, as perfectly proper.

...

Today, the Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft....

In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of “life, liberty or property, without due process of law”—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s “due process” argument textual gibberish.

Constitutional history also cut hard against Roe. When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion. Virtually every state back then prohibited abortions. Roe likewise ran counter to state laws still on the books almost everywhere in the 1970s. The opinion clumsily cited various earlier precedents involving “privacy” rights related to contraception and erotic expression, but in a devastating concession, the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter “inherently different” from all previous privacy cases. ...

And in conclusion:

In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.

I'll add that there shouldn't be anything odd about supporting abortion rights and opposing Roe, although in today's legal climate it sometimes seems that there is.

(Via Ed Whelan at NRO).

05/18/2022

Richard Reinsch on Reviving the Nondelegation Doctrine
Michael Ramsey

At Law & Liberty, Richard Reinsch: Can We Revive the Old Constitution? (reviewing  The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine (Peter Walliston & John Yoo eds., AEI Press 2022)). From the introduction:

Two common proclamations currently dominate conservative thinking: (1) We are governed by runaway bureaucrats with no accountability to the people, and (2) We are governed by a Congress that refuses to legislate in any regular capacity, even refusing to deliberate in committee and vote on a federal budget on a department-by-department basis. ...

But congressional representatives or senators seem incapable of taking concrete action to revive legislative deliberation, restore the Congressional committee system, discipline the executive bureaucracy, and concentrate on truly national policy concerns, among other items.

We know the scope of the problem, that a deliberating legislative power is no longer substantively exercised by the branch of government vested by the Constitution with this capacity. Instead, much of this lawmaking power takes place in the regulatory or administrative state. Rulemaking also takes place through adjudication, where disputes with private litigants are presided over by administrative judges ensconced in the actual agency whose rules are in dispute.

Legislation, enforcement, and adjudication are exercised by the same set of hands. Publius called this tyranny, and one of the objectives of the 1787 Constitution was to eliminate it.

A new volume from the American Enterprise Institute titled The Administrative State Before the Supreme Court, featuring contributions from a dozen, mostly legal academics, investigates the prospects of reviving the nondelegation doctrine (NDD), which would prevent or at least place limits on Congress transferring its legislative powers to the administrative state. The hopeful consequence is that it would restore Congress to its representative, deliberative power.

And from later on:

And that brings us to the present moment and Justice Gorsuch’s question for reigniting the NDD: What is the test? Justices Roberts, Gorsuch, and Thomas filed a dissenting opinion in Gundy. Justice Alito filed a concurring opinion, but noted, “If a majority of justices were willing to reconsider the approach we have taken for the last 84 years [that is, since the 1935 and the decisions in Panama Refining and A.L.A. Schechter Poultry], I would support that effort.” Gorsuch’s dissent, though, looms largest and is the inspiration for AEI’s scholarly effort.

...

Most of the contributions in the volume are attempts to answer Gorsuch’s question: What is the test? Some offer attempts to provide great robustness to the standard of an intelligible principle that could guide executive agencies in their work and that courts could use to measure if a tailored and direct delegation occurred. ...

One of the essays is by Mike Rappaport: A Two Tiered and Categorical Approach to the Nondelegation Doctrine.

05/17/2022

Senator Rand Paul on the President's Power to Terminate Treaties
Michael Ramsey

At The American Conservative, Senator Rand Paul: The President Can Terminate Treaties Alone.  From the introduction: 

When faced with questions relating to America’s role in the world, we would be wise to heed the advice of the Founders. George Washington urged distance from the “frequent controversies” of Europe. Thomas Jefferson pursued a course of “peace, commerce, and honest friendship with all nations, entangling alliances with none.”

Recently, the Senate Foreign Relations Committee favorably reported a resolution that would reject those words of wisdom. Offered by Senator Tim Kaine (D-Virginia), the resolution would require the concurrence of two-thirds of the Senate or an Act of Congress to agree to any attempt to withdraw the United States from the North Atlantic Treaty Organization (NATO) alliance.

Such a resolution would contravene historical precedence and is likely unconstitutional.

While the Constitution provides a role for both the president and the Senate when entering a treaty, it is silent regarding how to exit a treaty. But that silence says more than some would acknowledge. In what may be considered an example of the common sense of the Constitution, our system requires deliberation before entering alliances while allowing for quick withdrawal should international agreements later prove ruinous to the nation.  

Such an occasion occurred very early in our history as an independent nation. In 1793, President Washington and his cabinet endorsed the view that the president’s executive power included the ability to unilaterally terminate our treaty with France. Withdrawal from our treaty obligations permitted the United States to maintain neutrality in a war between France and Great Britain at a time when our republic could ill afford involvement in foreign military adventures.

I agree -- and not just because he cites me.  (He does, though: "Similarly, as legal scholars Saikrishna Prakash and Michael Ramsey argue, the president’s executive power includes a general power over foreign affairs, and where the Constitution does not allocate specific foreign affairs powers to Congress or the Senate, those powers reside with the president. In other words, treaty termination is an exercise of the executive power of the president over foreign affairs.")

I think it's actually a bit more complicated.  As Professor Prakash and I wrote in the linked article, the President has power to withdraw from a treaty according to its terms as part of the President's executive power in foreign affairs. That doesn't necessarily mean Congress can't limit that power, as in the resolution Senator Paul mentions.  That might depend on whether the President's withdrawal power is exclusive, which it might not be.  But, as an initial matter, the question is whether Congress has an enumerated power to limit the President's withdrawal power.  I think Congress has no such power, at least as applied to NATO.  In particular, while I think Congress has power to implement treaties through its necessary and proper power (see here and here), I don't think limiting the President's withdrawal power is necessary and proper to implementing the treaty power (at least not if the President is withdrawing pursuant to the treaty's term).

So in the end I think Senator Paul is right. (And thanks for the cite.)

05/16/2022

Is Griswold in Accord with the Original Meaning?
Mike Rappaport

With the leak of Justice Alito's draft opinion overturning Roe v. Wade, many people have wondered whether the same reasoning would overturn Griswold v. Connecticut, which protected the right to purchase contraceptives.  While I reject the justifications given in Griswold and Roe, I do believe that Griswold's result might be justified by the 14th Amendment's original meaning under the prevalent rights view of the Privileges or Immunities Clause.   I discuss this theory in two prior Originalism Blog posts: here and here

Here is an excerpt from the first post: 

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

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

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

05/15/2022

Mark Pulliam Reviews Adrian Vermeule's Common Good Constitutionalism
Michael Ramsey

At the Acton Institute Blog, Mark Pulliam: The Founders’ Constitution and its discontents (reviewing [unfavorably] Adrian Vermeule's Common Good Constitutionalism).  From the core of the argument:

Vermeule’s jargon-laden critique, incorrectly perceived as coming from “the right,” has attracted attention for its man-bites-dog novelty. Vermeule aims to discredit originalism altogether and replace it with his bespoke legal order. The moral framework of Vermeule’s integralism (summarized in a 2020 essay he wrote for The Atlantic, entitled “Beyond Originalism”) is hostile to the libertarian bent of the Supreme Court’s current jurisprudence on free speech, abortion, sexual liberties, and related matters.

Despite charges that Vermeule advocates “a kind of reactionary substantive due process,” he is not conservative in any meaningful sense. He represents an odd hybrid of conventional progressivism (support of federal power, administrative agencies, economic regulation, labor unions, and environmental protection) and traditional morality typically associated with social conservatives (opposition to abortion, LGBTQ rights, same-sex marriage, pornography, etc.). Coincidentally, his “constitutional theory” mirrors those views. As Robert Bork wrote in 1982, “the judge who looks outside the Constitution always looks inside himself and nowhere else.” The same is true for constitutional theorists.

Claiming to revive what he calls the “classical legal tradition,” Vermeule exhibits considerable erudition regarding Dworkinian moral philosophy, Roman law, Thomistic political thought, natural law, and the abstruse literature of constitutional “theory.” Judged in terms of ambition and ingenuity, Vermeule earns high marks. Alas, he fails to persuade that these concepts have any relevance to the Constitution as written. Brimming with Latin phrases, and punctuated with jarring citations to figures wholly unrelated to the American Founding (i.e., Giovanni Botero, Carl Schmitt, Johannes Messner, St. John Henry Newman), his self-referential book not only disregards the Founders’ Constitution but stands our constitutional democracy on its head. In a mere 184 pages of text, without a single reference to James Madison, and nary a mention of the Federalist Papers, Vermeule purports to erase and rewrite the Founding. This is pure hubris.

And in conclusion:

Judges are tethered by text, precedent, and well-established norms of interpretation. Academic scholarship can and does influence what passes as the “mainstream” in constitutional jurisprudence—the “Overton Window,” as it is sometimes called in other contexts. “Originalism,” although far from perfect (and never self-executing), limits the exercise of judicial discretion to some extent. Originalist judges have to offer a plausible textual basis for their decisions. Vermeule’s open-ended theory, in contrast, would relieve judges of any such constraint, empowering leftist jurists and unelected bureaucrats to dress their personal predilections up as the “common good”—a wholly subjective inquiry.

Stripped of its “historicist supineness, tendentious scholarship, and political utopianism,” Vermeule’s “radiant vision” of unconstrained government power is a misguided prescription for tyranny. The Founders would be appalled.

See also, as previously noted, this review by my colleague Steven D. Smith and this long critical discussion by Brian Tamanaha.

05/14/2022

Judge Kethledge on Sex in Cambodia (Part 2)
Michael Ramsey

This is my second post about U.S. v. Rife, the Sixth Circuit case in which a U.S. citizen (Rife) was prosecuted for molesting girls in Cambodia.  As described in my first post, Judge Kethledge, writing for a divided panel, first found the law to exceed Congress' powers under the original meaning of the foreign commerce clause.

He then went on to find that the law was within Congress' power to implement treaties, but only on the basis of the Supreme Court's decision in Missouri v. Holland.  And he sharply questioned Missouri v. Holland on originalist grounds:

Th[e] question is whether the President and two-thirds of the Senate, by the sole fact of their consent to a treaty, can empower Congress to enact legislation that it otherwise could not enact by the exercise of its enumerated powers in Article I. The  implications of that question are “seismic[,]” because the prevailing view appears to be that “the Treaty Clause comes with no implied subject-matter limitations.” Bond, 572 U.S. at 877 (Scalia, J., concurring in the judgment). For if the Treaty Power has no subject-matter limitations, Congress’s power to enact laws that implement treaties would not have any subject-matter limitations either. ... The Necessary and Proper Clause would become a portal, through which Congress would leave behind its limited powers and exercise, at last, an unlimited one. For example, a treaty addressing climate change—or an international convention for the prevention of infectious diseases—might empower Congress to regulate virtually any conduct it chose. Congress would be “one treaty away from acquiring a general police power.” Id. at 879.

[The opinion then reviews the struggle to contain the power of the monarchy in English history, and the colonies' struggle against claims of unlimited power by Parliament.]

In light of this history, the idea that the Founding generation would have included in the Constitution—as part of an ancillary power of Article I, no less—a hidden power to “overleap the bounds” of all the other powers in that Article, and to legislate “in all cases whatsoever,” is simply implausible. The Revolution was fought in opposition to the Declaratory Act [declaring Parliament supreme over the colonies], not to make it the supreme law of the land. Chief Justice Marshall recognized as much when he wrote that “a great substantive and independent power . . . cannot be implied as incidental to other powers, or used as a means of executing them.” McCullough v. Maryland, 17 U.S. 316, 411 (1819). Yet the government asks us to recognize such a power here. That the conduct at issue in the case occurred overseas is merely a fortuity: the principle it advocates would enable Congress, with the right treaty, to regulate any conduct it chooses domestically. And that Rife’s conduct deserves severe punishment does not allow us to authorize it contrary to law. 

I disagree, for the reasons explained in this article.  First, Judge Kethledge does not explain what in the Constitution's text leads to his conclusion.  Rather, he relies on speculation that the framers could not have intended the result.  I think that is methodologically unsound: the Constitution's text provides the rules, not our conclusions about what the framers must have wanted.  And the Constitution's text says (a) treatymaking is a power of the President and the Senate; and (b) Congress has power to carry into execution other powers of government.  Second, giving Congress power to carry treaties into execution does not give Congress power to "regulate any conduct it chooses."  There must actually be a treaty -- a matter not within Congress' control, but dependent on consent of two-thirds of the Senate.  Moreover, under the original Constitution, Senators were appointed by the states, so a treaty originally depended on two-thirds of the states (almost enough to amend the Constitution). And further, I agree with Justice Thomas' concurrence in the Bond case that a treaty, to be a legitimate treaty and not a sham, must address a matter of international concern.  It's true that these limits still give a wide scope to Congress' treaty implementation power -- probably a wider scope than the framers imagined -- but it seems the necessary consequence of the text. (I'd add as well that the President and Senate can in any event make a treaty self-executing, and achieve the broad regulatory effect Judge Kethledge fears without invoking any power of Congress).

Third, also as argued in the article linked above, courts can and should read Congress' treaty implementation power narrowly, precisely because of the dangers Judge Kethledge identifies.  One narrowing strategy I advocated is to be sure that Congress' implementing law does not go beyond what is required by the treaty.

I regret that Judge Kethledge did not adopt that strategy here, as it was easily available.  The relevant treaty is the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.  It requires (art. 2(b), 3(1)(b)) ratifying countries to prohibit “[o]ffering, obtaining, or procuring or providing a child for child prostitution,” including “the use of a child in sexual activities for remuneration or any other form of consideration.” (This is made clear in Judge Stranch's opinion concurring in the judgment). But Rife did not engage in any such activities, and the statute under which he was prosecuted goes well beyond the use of children for commercial sex, prohibiting any "illicit sexual conduct" irrespective of its commercial nature.

Judge Stranch addresses this point in concurrence and argues:

Although the Optional Protocol does not explicitly require the criminalization of non-commercial sexual abuse, there is a rational relationship between the aims of the Optional Protocol and the implementing PROTECT Act [the relevant federal statute]. The United States State Department explained that the revised version of § 2423(c) that criminalizes non-commercial child sexual abuse committed abroad was part of the nation’s efforts to fulfill its obligations under the Optional Protocol. ...  The Optional Protocol itself states that its bare terms, such as the focus on only commercial sexual abuse, are a minimum.  ...  As the D.C. Circuit explained in Park, the treaty’s “goal of eliminating commercial child sexual exploitation, including global sex tourism, could be undercut if Congress failed to criminalize non-commercial child sex abuse by U.S. residents abroad.” Park, 938 F.3d at 368. The Necessary and Proper Clause allows Congress to address “regulatory gaps” such as the concern about non-commercial sexual abuse of minors.

I think this is mistaken, and stretches Congress' treaty implementation power too far.  That there is a "concern about non-commercial sexual abuse of minors" does not allow Congress to regulate noncommercial abuse as part of implementing a treaty requiring criminalization of commercial abuse.  The "regulatory gap" exists because the treaty does not extend as far as Congress wishes it did.  But Congress has power to implement the treaty we ratified, not the treaty it wishes we ratified.  It's not clear to me that there's even a "rational relationship" between regulating commercial sex trafficking and regulating private noncommercial sexual misconduct -- but even if there is, I think "rational relationship" is the wrong test.  Allowing Congress to go beyond the limits of the treaty under such a weak test raises the dangers of unlimited power to which Judge Kethledge refers.

In sum, Congress has power to assure that the United States complies with its treaty obligations, and nothing more. That should not include power to regulate matters that may be tangentially related to the treaty, but are not encompassed within it.  In my view applying the statute to Rife's conduct exceeded the treaty implementation power.  And I think adopting that approach is a better strategy for containing the treaty implementation power than a frontal attack on Missouri v. Holland.

(Thanks to Andrew Hyman for the pointer to Rife, and I suspect he may disagree with me.)

COMMENT FROM ANDREW HYMAN: Regarding the Treaty Power, I agree with Mike that, if Congress really does have a treaty implementation power that goes beyond its normal enumerated powers, then courts should make sure  Congress's implementing law “does not go beyond what is required by the treaty.”  But I’m skeptical Congress does have a general treaty implementation power, in view of Justice Scalia’s textual argument in the Bond case.  If Scalia was right, then implementing regulations outside Congress’s enumerated powers would have to go into the treaty text itself, and Mike doesn’t deny that that’s always an option, in which case his limitation (“does not go beyond what is required by the treaty”) would be ineffective. Likewise, the requirement that treaties only cover matters of legitimate international concern also seems very malleable and therefore ineffective.  One might limit the treaty power by arguing that various enumerated powers such as the power to declare war are exclusive, but the powers described in the Tenth Amendment seem exclusive too.  If Justice Scalia was correct that all federal implementation measures beyond Congress’s enumerated powers have to be dumped into the treaty text itself, then it’s also worth observing that the Take Care Clause (unlike the Supremacy Clause) does not mention anything about treaties, so states may well be on their honor to execute treaty provisions that Congress and the President both lack power to implement.  Of course, to the extent the President does have such power without relying upon the Treaty Clause, then he is on his honor to use it, because a treaty without an escape clause remains the supreme law of the land (Congress has power to supersede any treaty as domestic law but Congress is still on its honor to respect international law).  See Constitutional Diplomacy by Michael Glennon, page 203 (asserting that the Take Care Clause only applies to laws enacted by Congress).

05/13/2022

Brian Tamanaha: Beware Illiberal Natural Law
Michael Ramsey

Brian Z. Tamanaha (Washington University in St. Louis - School of Law) has posted Beware Illiberal Natural Law (101 pages) on SSRN.  Here is the abstract:

Natural law has burst onto the American legal scene with the publication of Adrian Vermeule’s Common Good Constitutionalism (2022). A prominent constitutional and administrative law scholar, Vermeule castigates originalist jurisprudence as a fraudulent illusion perpetuated by conservatives to achieve their objectives, and he condemns progressive jurisprudence as a departure from objective moral values. In their place, Vermeule advocates recovery of the natural law tradition that undergirded Western law for over two millennia and provided the basis for American law from before the founding of the country until it was unceremoniously discarded in the mid-twentieth century. “Common good constitutionalism draws upon an immemorial tradition that includes, in addition to positive law, sources such as the general law common to all civilized legal systems (ius gentium) and principles of objective natural morality (ius naturale),” he declares. His manifesto comes on the heels of a recent outpouring of academic writings on natural law.

This essay critically examines Vermeule’s invocation of natural law, and natural law theory and discourse more generally. Part I focuses on Vermeule, revealing the implications of his illiberal Catholic integralist position, and the conservative political bent of natural law espoused by contemporary proponents. Countering his account, I explain why references to natural law virtually disappeared in the American legal tradition by the turn of the twentieth century. Part II articulates several theoretical clarifications about natural law and the implications that follow. Among other topics, I draw a fundamental distinction between natural law as such versus social-historical natural law; I show that Vermuele’s portrayal of classical legal understandings of ius naturale is at odds with the consensus of Roman law scholars; I identify the origins of natural law thought in ancient myths about divine law; and I discuss the law aspect of natural law. Part III takes up the natural law theories of Aristotle, Cicero, and Aquinas. I show that in all three cases their theories reflected their background assumptions and existing relations of power, and all three made dubious arguments about what natural law requires, particularly with respect to slaves and women. Part IV addresses contemporary natural law theories. After explaining how modern science and the fact/value distinction undermined traditional natural law theory, I critically examine contemporary teleological and evolutionary theories of natural law, and Finnis’s philosophical argument for natural law. Neither holds up to scrutiny. The theoretical point I press is that without God, natural law as such is a fiction, although the social construction of natural law has genuine social consequences. The lesson of the essay is that claims about universally binding natural law have always reflected contestable religious, cultural, political, and legal positions that must be evaluated on their normative merits and social consequences.

05/12/2022

Judge Kethledge on Sex in Cambodia (Part 1)
Michael Ramsey

This sounds like a law school exam hypothetical: Mr. Rife, a U.S. citizen, lives in Cambodia and teaches school there.  He allegedly molests some of the girls at his school.  When he returns to the U.S., he's prosecuted under a federal law criminalizing sexual misconduct anywhere in the world.  Is the law within Congress' constitutional powers?  Discuss.

Actually it's a real case, U.S. v. Rife, decided by the Sixth Circuit last week (per Judge Kethledge, with Judge Bush joining and Judge Stranch concurring in the judgment).  Judge Kethledge (an outstanding originalist) addresses the foreign commerce power and the treaty power, which I'll consider in separate posts.

As to the foreign commerce power, Judge Kethledge finds it doesn't provide a basis for the statute (18 U.S.C. § 2423(c)).

First, he says that the Supreme Court's precedents on the interstate commerce clause (a) go beyond the original meaning and (b) aren't binding with respect to the foreign commerce clause: 

The Court’s departure from the original meaning of “commerce” came in the third category: summarizing the Court’s caselaw, again with respect to interstate commerce in particular, the Court in Lopez recited that “Congress’ commerce authority includes the power to regulate” not only commerce itself, but also “those activities that substantially affect interstate commerce.”

In the 80 years since the Supreme Court added that third category to Congress’s power to regulate interstate commerce—an addition that has come to overshadow the original structure to which it was attached—the Court has not extended it to Congress’s power to regulate under the Foreign Commerce Clause. See Baston v. United States, 137 S. Ct. 850, 852 (2017) (Thomas, J., dissenting from denial of certiorari) (observing that the federal circuit courts have been “[w]ithout guidance from this Court as to the proper scope of Congress’ power under this Clause”). Thus, a threshold question here is whether we must or should extend that addition to Congress’s foreign-commerce power ourselves.

...

Our answer to that question rests on first principles. Law is a public act. Its meaning depends not on the secret intentions of lawgivers, but on the meaning understood by the people bound by it. Basic principles of due process require no less. Meanwhile, the creation of positive law—meaning statutes and the Constitution itself—can occur only pursuant to the procedures prescribed in the Constitution. For statutes, those procedures are bicameralism and presentment. See Art. I, § 7. For the Constitution—setting aside its original ratification under Article VII—those procedures are the ones prescribed in Article V. Thus, for statutes and constitutional provisions alike, there is a straight line from the constitutional requirements for making law; to a text that has met those requirements; to the meaning that the citizens bound by that text would have ascribed to it, which is to say its original meaning; and to what is then the law, which as judges we are bound to apply. Hence the Constitution’s original meaning is law, absent binding precedent to the contrary.

There is no such precedent here. See Baston, 137 S. Ct. at 852 (Thomas, J., dissenting). Nor do we otherwise see any compulsion to add to the Foreign Commerce Clause the revisionist structure that, 80 years ago, the Supreme Court added to the Interstate Commerce Clause.

...

In sum, to determine whether Rife’s conviction under 18 U.S.C. § 2423(c) was supported by the Foreign Commerce Clause, we ask whether his conduct fell within Congress’s power to “regulate Commerce with foreign Nations,” as that power was originally understood.

This strikes me as a super-aggressive  version of not extending non-originalist precedent.  The so-called interstate commerce clause and the so-called foreign commerce clause are part of the same clause, giving Congress power "To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes."  Even as one who advocates reading non-originalist precedent narrowly, I'm not sure that precedent on the second part of this clause shouldn't be precedent for the first.  I would not think that Congress' power over interstate commerce should be broader than its power over foreign commerce. But, I like his instincts: non-originalist precedent is only binding on indistinguishable issues.

Here's the core of his originalist analysis:

Rife’s molestation of his two victims was undisputedly noncommercial, and thus was not itself trade or commerce of any kind. True, Rife met his victims at the school where he taught; but the government concedes that his abuse conduct was itself in no way commercial. ...

Rife’s abuse of his two victims was likewise not part of any transportation or traffic in foreign commerce. To the contrary, Rife had ceased travelling in foreign commerce when he arrived in Cambodia years before. The government counters that § 2423(c) has what it calls a “jurisdictional hook”—namely (as charged here) that that defendant has “travel[led] in foreign commerce”—which in the government’s view cures any defect in Congress’s power to reach Rife’s conduct here. ... [But] the bare fact that an American “travels in foreign commerce” does not empower Congress to regulate, under the Foreign Commerce Clause, everything that American does afterward. That is the plain implication of the government’s argument here: that, once an American citizen travels in foreign commerce, the federal government has a police power to regulate (or proscribe) any conduct that citizen might engage in overseas, from marrying a foreign national to consuming foie gras. Congress has no such power.

...

Here, Rife’s travel to Cambodia was not itself a criminal offense. And the government’s argument here—that the “travels in interstate or foreign commerce” element empowers the government to regulate any conduct or omission that follows—again amounts to an assertion of a federal police power over the conduct of American citizens overseas.

In sum, Rife’s conviction under 18 U.S.C. § 2423(c) for molesting his two victims in Cambodia, years after he travelled there, and without any commercial exchange, was not an exercise of Congress’s power to “regulate Commerce with foreign  nations[.]” His conviction cannot stand on that ground.

I'm not sure about this analysis either.  First, there's a question of what "Commerce with foreign Nations" means.  Does it mean commerce carried on between places in the United States and places abroad? Or does it mean commerce carried on between U.S. citizens and foreign citizens?  See Christopher Green, Tribes, Nations, States: Our Three Commerce Powers.  I think (like Professor Green) it's probably the latter.  If so, Mr. Rife clearly engaged in foreign commerce (teaching at a school).

Second, if Mr. Rife was engaged in foreign commerce, why can't Congress regulate his tortious activity connected to his commerce?  (He allegedly molested students at his school.)  Judge Kethledge makes two points: (1) the prohibited activity itself was noncommercial, and (2) ruling the other way would give Congress an unlimited police power over all activities of U.S. citizens abroad.

The first point is true, but not decisive.  The commerce power I think allows Congress to regulate non-commercial harms arising from a commercial transaction.  If I engage in theft as part of my interstate/foreign business, Congress should be able to regulate that.  If my interstate/foreign business tortiously harms someone, Congress should be able to regulate that.  Rife was engaged in foreign commerce when he harmed the girls: they were his customers.

The second point I think is not true in this case, although it's true of the statute generally.  Following the analysis in the prior paragraph, I would say that Congress can regulate Rife's conduct only because it occurred in connection with Rife's participation in foreign commerce.  That would not be true of all U.S. citizens' activities abroad.  For example, if Rife were living in Cambodia and assaulted someone not in connection with any commercial activity, I would say that is beyond Congress' commerce power for exactly the reasons Judge Kethledge gives.

Nonetheless, I think it's probably right as a technical matter that Mr. Rife shouldn't be convicted under the statute (if the statute rested only on the foreign commerce power).  The statute covers anyone “who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person.”  Even though I'd say a narrower statute can constitutionally reach his conduct, this one is much too broad; it's not limited (as it should be under the foreign commerce clause) to illicit sexual activity connected to a commercial activity.  Though I'm not an expert in criminal law, the law's overbreadth seems to allow the government to convict Rife without showing the constitutionally required connection to foreign commerce (even though the government could have made that showing).  I'm not sure if that should allow his conviction to stand or not.

Next up: can the conviction be sustained under Congress' power to implement treaties?

UPDATE:  Michael Rosman comments: 

I liked your analysis although you did not make as clear as I would have preferred what the connection was between the defendant’s commercial activity and the non-commercial conduct that formed the basis of the charge against him.  If I sell a customer a widget and then later in the week assault him, I’m not sure the mere fact that he was a customer makes the assault commercial.

On your last point, Alfonso Lopez was caught “possessing” a gun within 1000 feet of a school because he was delivering it for $20.  So his particular possession was commercial, even though that was not an element of the crime with which he was charged.  The court analyzed the statute as a whole and concluded that it was unconstitutional.   I wrote about this whole “overbreadth” issue in Commerce Clause litigation a while back: Facial Challenges and the Commerce Clause: Rethinking Lopez and Morrison, 4 Faulkner L. Rev. 1 (2012).

05/11/2022

Gregory Ablavsky versus Rob Natelson on the Indian Commerce Clause
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted A Reply to Mr. Natelson’s 'Preliminary Response to Prof. Ablavsky’s ‘Indian Commerce Clause’ Attack' (6 pages) on SSRN.  Here is the abstract: 

Robert Natelson recently responded to a three-paragraph critique of his 2007 law review article that I offered in an amicus brief in the ongoing Brackeen litigation. Though Natelson concedes that critical examination is an integral part of the scholarly process, he claims that my brief was not only unscholarly but "shyster-like."

I disagree. In this reply, I rebut his critiques. I reiterate the key, uncontested point that his original article relied on an inaccurate version of a vital piece of evidence from ratification, Sydney's New York Journal essay. In the correct version, Sydney observed that ratification would "totally surrender into the hands of Congress the management and regulation of the Indian affairs." Natelson's response attempts to explain away this language as a mere slip of Sydney's pen. But in my view this effort to rewrite the historical source's explicit language to agree with Natelson's original hypothesis is unpersuasive.

I then challenge Natelson's claims that I distorted his arguments. As I show, nearly all the critiques that my brief offered drew from near identical arguments in my 2015 Yale Law Journal article that Natelson himself concedes was "generally respectful." Moreover, I argue that each of my characterizations of Natelson's article, while necessarily a summary, accurately reflected his arguments and underscores the substance of our scholarly disagreement.

It is unfortunate that Mr. Natelson took my brief so personally. This case is not about either Mr. Natelson or me. As all parties would agree, the outcome will significantly impact people's lives. I briefly discussed Mr. Natelson's scholarship in the amicus not to denigrate him but because I have spent my academic career researching the history at issue here, and because, in my scholarly assessment, Mr. Natelson's frequently invoked article was flawed and at odds with historical evidence. I am disheartened that this important academic discussion has devolved to ad hominem attacks.

And here is Professor Natelson's essay from last month, to which Professor Ablavsky is responding: A Preliminary Response to Prof. Ablavsky’s “Indian Commerce Clause” Attack.  From the introduction:

This year the Supreme Court will hear consolidated cases involving the scope of Congress’s authority to “regulate Commerce . . . with the Indian Tribes”—the Indian Commerce Clause.  One of the cases comes from the U.S. Court of Appeals for the Fifth Circuit, which held that the clause gives Congress almost unlimited power.

In 2007, I did a research study on the Indian Commerce Clause. Its conclusions were outlined in an article entitled, The Original Understanding of the Indian Commerce Clause, which was published the following year. I concluded that the Constitution created a different regime for addressing “Indian Affairs” than had existed under the Articles of Confederation. (“Indian affairs” was the Founding-Era term for all relations with the Indians.)

Under the Articles, the entire Indian affairs power was given to the Confederation’s single central branch—the Confederation Congress—subject to two broad exceptions in favor of the states. There were efforts during the Constitutional Convention to grant the new federal Congress wide “Indian affairs” authority as well. Instead, however, the Convention decided on a “separation of powers”’ approach ...

Claims that the Indian Commerce Clause gives Congress unlimited and/or exclusive Indian affairs authority are wrong. Such claims are inconsistent with the Constitution’s separation of powers approach.

...

In 2019, [Professor Ablavsky] filed a “friend of the court” brief with the court of appeals that included a slashing attack on my scholarship, my scholarly standards, and (at least inferentially) on my honesty.

...

Three different approaches in Ablavsky’s brief lead me to say it has a shyster-like quality:

(1) It misrepresents my conclusions and then attacks the misrepresented version rather than what I actually wrote.

(2) It wrenches quotations out of context to make them appear to say things they did not.

(3) It seeks to divert attention away from how the ratifiers understood the Constitution during the ratification process and toward how federal congressmen and officials may have understood it after ratification. Of course, self-interested federal officials’ subsequent interpretation of their own powers is virtually worthless as evidence of the previous ratification bargain. ...

I'm carefully not taking sides on this one, which readers can judge for themselves.

05/10/2022

Lawrence Solum & Max Crema: The Original Meaning of “Due Process of Law” in the Fifth Amendment
Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) & Max Crema (Georgetown J.D. '20) have posted The Original Meaning of “Due Process of Law” in the Fifth Amendment (108 Va. L. Rev. 447 (2022)) (89 pages) on SSRN.  Here is the abstract:

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

The authors presented an earlier version of this paper at the 12th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference held (virtually) at the University of San Diego in February 2021, with commentary by Professor Tara Grove of the University of Alabama Law School.  So at least two recent Originalism Conference papers are being published by the Virginia Law Review (this one, plus this paper by Ilan Wurman).

05/09/2022

Steven Douglas Smith on Adrian Vermeule's "Common Good Constitutionalism"
Michael Ramsey

Steven Douglas Smith (University of San Diego School of Law) has posted The Constitution, the Leviathan, and the Common Good (Constitutional Commentary, forthcoming) (20 pages) on SSRN.  Here is the abstract:

On its face, Adrian Vermeule’s Common Good Constitutionalism appears to do battle with the entire corpus of contemporary legal and constitutional theory. But the conflicts are mostly contrived. Vermeule picks gratuitous fights based on skewed descriptions of generic opponents; meanwhile, although seeking to revive “the classical legal tradition,” he does not systematically defend that tradition at the points where real, substantive disagreements exist. As a result, the book provides little illumination of any of its major themes-- the classical legal tradition, the American Constitution, or contemporary constitutional theory.

And from the introduction, which is even a bit more harsh:

Adrian Vermeule’s Common Good Constitutionalism is a curiously strident and yet reticent book– boldly belligerent but oddly timorous. Vermeule seems to be itching to fight, and so he constructs and characterizes chosen opponents so as to preempt possible lines of agreement and thus ensure that there will be something to fight about, or at least to pretend to fight about. And yet at the places where differences are most substantive and consequential he is regrettably
unforthcoming. Thus, Vermeule presents himself as a pugnacious critic of pretty much the entire corpus of contemporary constitutional thought, but his opposition is based on skewed descriptions of that thought that often seemed calculated mostly to provide him with concocted opponents to batter. And although zealously in favor of what he calls the “classical legal tradition,” he seems unwilling to acknowledge and publicly defend essential elements of that
tradition. In the end, Vermeule comes across as a Don Quixote who is determined to do battle but is hazy about exactly what or whom he needs to do battle with, or where, or why.

There are a number of thoughtful criticisms in the review; this one seems particularly telling:

In this respect, Vermeule’s book seems analogous to a treatment that earnestly insists that law is supposed to promote “justice,” and then indignantly denounces this or that particular law by declaring-- in conclusory fashion-- that these laws are not just. Such a treatment seems merely obtuse. Everyone knows that law ought to promote justice; the challenge is to show more concretely what justice entails and why a particular law is not just. In a similar way, Vermeule’s platitudinous invocations of the common goods of health, safety, and such coupled with conclusory denunciations of this legal doctrine or that judicial decision as contrary to the common good do little to illuminate any genuine controversies of our time.

It seems there must be more to the common good position that this. But what? For someone like Aquinas, the good and hence the common good belonged to the same purposive framework in which the natural law had its home. Within that kind of framework, it would be understandable how the good of a person and perhaps of a community could be something other than the subjective satisfactions or utilities of individuals. And it seems that Vermeule is likewise trading on some more substantial but mostly unspoken assumptions about what is truly good for human beings, whatever their subjective preferences or “utilities” may be. Indeed, he acknowledges that the common good “presuppose[s] a substantive conception of human flourishing.” (32) Elaborating on what that substantive conception is might provide a more solid basis for Vermeule’s various denunciations and prescriptions, and might illuminate and support his recurring criticisms of liberal, autonomy-based morality. But here again, just when Vermeule might join a real debate and make a valuable contribution, he holds back.

One might put the point this way: it seems what Vermeule’s real quarrel with modern law and governance is not so much jurisprudential as moral and even metaphysical. In training his fire on legal positivism (and later originalism), he has picked the wrong targets. But where the actual battles need to be fought, Vermeule is pretty much a no show.

And on Vermeule on originalism:

Vermeule’s assault on originalism is more extensive and impassioned: he repeatedly contends that originalism is an “illusion” (22, 91-116), and without actually examining the rationales that originalists give for their position he charges or insinuates that they are acting from ignorance, political motivation, or bad faith. Surely here there must be a genuine disagreement? And yet upon closer examination, it becomes quite unclear exactly what or whom Vermeule thinks he is disagreeing with, or how he disagrees, or why.

Thus, Vermeule himself provides a cogent explanation for how originalism, far from being a competitor to [classical legal tradition], might fit comfortably within CLT; and yet he seems determined to refuse admission. He explains how CLT supports or even entails an extensive although limited positivism: in performing their determinatio function and seeking the common good, authorities will promulgate positive law; and in interpreting such positive enactments, textualism might be the best approach, because there are very good reasons to interpret an enactment according to the understanding of those who made it. (73-75) Indeed, any other approach would lead to a kind of “law without mind,” because the positive law would be determined in ways that no one who made those laws wanted or intended. (97, 105)

All of this seems quite sensible. And applied to constitutional provisions, this approach would amount to . . . originalism.

05/08/2022

Stefan Gries et al.: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond
Michael Ramsey

Stefan Th. Gries (University of California, Santa Barbara Department of Linguistics); Michael Kranzlein (Ph.D. candidate, Georgetown University Department of Computer Science); Nathan Schneider (Georgetown University, Linguistics and Computer Science); Brian G. Slocum (University of the Pacific - McGeorge School of Law) & Kevin Tobia (Georgetown University Law Center; Georgetown University Department of Philosophy) have posted Unmasking Textualism: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond (19 pages) on SSRN.  Here is the abstract:

COVID-19 has killed nearly one-million Americans, and its massive impact on society is still unfolding. The government’s strategy to combat the disease included an order regulating the wearing of masks on transit. Recently, a federal district court entered a nation-wide injunction against the government’s transit mask order, ruling that the order exceeds the statutory authority of the Centers for Disease Control and Prevention. The district court relied heavily on the statute’s “ordinary meaning” and especially one word: “sanitation.” Drawing on common textualist interpretive sources, including dictionaries and data from corpora, the judge concluded that a transit mask order is not a “sanitation” measure within the statute’s meaning. This essay confronts this textualist ruling on its own terms. It argues that linguistic principles and data support the opposite conclusion about “sanitation” and the statute’s meaning: The text authorizes a public-health promoting mask order. This essay’s linguistic analysis carries immediate implications for the case’s appeal. The analysis also has broader implications for the future of the U.S. government’s pandemic response abilities and for judges committed to “ordinary meaning.”

Via Larry Solum at Legal Theory Blog, who has extensive interesting comments.

RELATED: At The Hill, Steven Lubet (Northwestern) has a similar critique of the decision: Was mask mandate judge a hypocrite?  From the core of the analysis:

Let’s begin with “original meaning,” which is supposedly the essential conservative method of construing statutory and constitutional texts. That task should have been straightforward for [Judge] Mizelle [in he mask mandate case], given that the 1944 U.S. Public Health Services Act confers authority to “prevent the introduction, transmission, or spread of communicable diseases” by means of “sanitation” and “other measures . . . that may be necessary.” In the public health realm, “sanitation” has had a broad meaning since at least the 19th century, which makes sense given the goal of protecting people from disease.

...

In fact, Mizelle strategically skipped even likelier, more comprehensive definitions from the very sources she cited. The full definition in the 1942 Webster’s Dictionary is “a rendering sanitary; science of sanitary conditions; use of sanitary measures,” with no restriction to cleaning. The definitions in the 1948 Funk & Wagnall’s Dictionary include “the practical application of sanitary science,” without excluding “measures to keep something clean.” Mizelle did not acknowledge either of these definitions in her opinion, although both would plainly cover masking. Given the brevity of the entries, there was no way for her to miss the inclusive definitions. The omissions must have been deliberate.

So I count five linguistics experts plus Professor Lubet who think think the original meaning of the statutory language is clear.  I note this because some people keep saying that originalism doesn't yield definite results in contested cases.

05/07/2022

Can Criminals Give Congress Expanded Power to Overturn State Laws Regarding Interstate Commerce?
Andrew Hyman

In the wake of the release of the Supreme Court’s February draft opinion in Dobbs v. Jackson Women's Health Organization, there is some pressure on Congress to more or less codify Roe v. Wade.  I have no idea how successful such an effort might be, but it does present the question whether Congress has power to do it, using congressional power to regulate interstate commerce. 

Congress has legislated on the subject of abortion in the past.  The Supreme Court’s 2007 decision in Gonzales v. Carhart (2007) upheld the federal Partial-Birth Abortion Ban Act of 2003. However, as Justice Thomas wrote in his Gonzales v. Carhart concurrence, joined by Justice Scalia, “whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”  So it’s an open question.  Incidentally, I have previously suggested on this blog an alternative rationale for upholding the 2003 Act  that does not rely upon the Interstate Commerce Clause.

Regardless of whether the 2003 Act was constitutional or not under the Interstate Commerce Clause, there’s a very significant constitutional difference between what Congress did in 2003 compared to what it may do next.  In 2003, Congress banned a certain type of abortion that various states had allowed; now, the situation is reversed, and a move is afoot in Congress to mandate availability of certain types of abortion that various states have banned.  That the current situation is the reverse of the 2003 situation could well make a big difference in what the Supreme Court decides.

In cases like Wickard v. Filburn (1942), the Court gave a very broad interpretation of congressional power under the Interstate Commerce Clause.  But, in the year 2000, Justice John Paul Stevens pointed out that Wickard was a Congress-bans-what-states-allow case rather than a Congress-allows-what-states-ban case:

Regulating a lawful market in wheat is one thing. Regulating a commerce in something that's forbidden to be sold is quite a different thing….

If a state bans certain types of abortion, then (assuming everyone obeys that state law) there is no commercial activity for Congress to regulate.  The Supreme Court addressed this type of situation in National Federation of Independent Business v. Sebelius (2012):

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation…

Likewise, in a case where a state has banned a certain type of abortion, and citizens have obeyed that ban, Congress could only overturn the ban by legislating against commercial inaction rather than by regulating commercial action.  Of course, the reasons for not buying insurance described in NFIB v. Sebelius probably had little to do with obeying or defying Congress, but the textual principle is the same: to “regulate” something, Congress must see some commercial action to regulate.  If that indeed was the original meaning of the word “regulate” in the context of the Interstate Commerce Clause as of 1789, then congressional action today to overturn state abortion bans is likely unconstitutional.

The foregoing analysis applies to a state (A) where people are law-abiding, and where citizens do not violate the state’s ban.  I have argued that Congress cannot interfere with such a ban in State A, under the original meaning of the Interstate Commerce Clause, because there is no economic activity to regulate.  But what about a state (B) where lots of abortion providers do violate the state’s ban, and incur criminal punishment for doing so?  There in State B, we no longer have inaction, but rather illicit action.  However, I don’t think it’s reasonable to suppose illicit action can give Congress more power in State B than it has in State A, to overturn the state’s ban on certain types of economic activities.  This is especially true of economic actions that do not directly involve any crossing of state lines, because congressional power in that realm is already very strained and tenuous.

MICHAEL RAMSEY ADDS: I share the doubts of Justices Scalia and Thomas that the federal law at issue in Carhart was within Congress' interstate commerce power, for the reasons stated by Chief Justice Marshall in Gibbons v. Ogden (1824).  A transaction between an abortion provider in a state and a resident of that state is not a transaction "among the several States."  As Marshall put it:

The subject to which the power is applied, is commerce "among the several States".  The word "among" means intermingled with. A thing which is among others is intermingled with them.  ...

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other states.  Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as the word "among" is, it may properly be restricted to that commerce which concerns more States than one.  The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power would to be extended, would not have been made, had the intention been to extend the power to every description.  The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentences, must be the purely internal commerce of a State.

And even if one accepts the effects test of Wickard v. Filburn, a local abortion transaction does not have an inseparable effect on a comprehensive federal regulation of interstate commerce in the way growing wheat for domestic consumption did in Wickard.

05/06/2022

A Comment Katie Eyer's "Disentangling Textualism and Originalism”
David Weisberg

I’d like to comment on Prof. Ramsey’s recent post, “Katie Eyer: Disentangling Textualism and Originalism”.

Prof. Eyer says the difference between textualism and originalism is this: “Textualism commands adherence to the text.  Originalism, in contrast, commands adherence to history. … [T]hey are different inquiries, and command fidelity to different ultimate guiding principles.”  Prof. Larry Solum responds: “‘Public Meaning Originalism’ as articulated by theorists is almost always understood as committed to the proposition that the communicative content of constitutional text ought to constrain constitutional practice. … Given this understanding, Public Meaning Originalism is a form of textualism.”  Prof. Ramsey by and large agrees with Prof. Solum, asserting that: “An original meaning originalist is faithful to the text as informed by the history, but ultimately is faithful to the text.”

These formulations all look past the elephant in the room; they overlook a fatal flaw in the methodology the late Justice Antonin Scalia relied on in applying Public Meaning Originalism.  He said in 2013 that his opinion for the majority in D.C. v. Heller, 554 U.S. 570 (2008), was his “legacy opinion insofar as it is the best example of the technique of constitutional interpretation which I favor … I think it’s the most complete originalist opinion that I’ve ever written.”  (I’ve argued here that both Heller and its progeny, McDonald v. Chicago, 561 U.S. 742 (2010), reach wrong results, but for reasons unrelated to the fatal flaw described below.) 

Scalia’s Public Meaning Originalism embraced the rebuttable presumption that, because of its antiquity, every word or phrase in the Constitution might have a time-dated original meaning that differs materially from its current meaning.  So, e.g., in Heller, in examining the word meaning of “Arms” in the 2nd Amendment (at 581), Scalia immediately consults founding-era dictionaries (Dr. Johnson, Noah Webster, Timothy Cunningham) and other founding-era documents to determine that meaning.  Precisely the same methodology is used regarding the phrases “keep arms” (at 582), “bear arms” (at 584), “well regulated Militia” (at 595), and “security of a free State” (at 597).  There would be no reason to employ such a methodology unless one believes that all words and phrases in the Constitution might have time-dated meanings that can be revealed only by studying literary materials roughly contemporaneous with the Constitution.

What Justice Scalia apparently never realized is that, if one must resort to founding-era dictionaries and other literary material to ascertain possible time-dated meanings in the Constitution, then the meaning of those founding-era dictionaries and other literary material might similarly be time-dated, necessitating a further inquiry into the meaning of the words and phrases in those secondary founding-era documents.  And, etc.  We thus find ourselves in an infinite regress—a bad place to be.  This infinite regress arises from what I have called the Paradox of Originalism, fully discussed here.

To avoid an infinite regress, one must rebuttably presume that the words and phrases in the Constitution have current meanings that are the same as when the Constitution was ratified.  That presumption can of course be rebutted by context or by idiomatic or circumlocutory expressions (e.g., “Person held to Service or Labour” was a circumlocutory reference to a slave), but we must begin with that presumption.  If one rejects Justice Scalia’s presumption that the words and phrases in the Constitution might all have time-dated meanings that differ from their current meanings, originalism vanishes, abandoning the field to textualism.

This brings us to the use of history in interpreting the text of the Constitution.  In his dissent in Obergefell v. Hodges, 576 US 644, (2015), Justice Scalia wrote:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. (576 US at 715-16, footnote omitted.)

What is significant here is that Justice Scalia has to be very careful to tell exactly one half of the historical truth.  It is true that, in 1868, no one doubted the constitutionality of limiting marriage to one man and one woman.  But it is equally true that, in 1868, no one affirmed the constitutionality of limiting marriage to one man and one woman.  The whole truth is that, in 1868, no one gave any thought to the constitutionality or unconstitutionality of prohibiting same-sex marriage, because at that time no one was giving any serious thought at all to same-sex marriage.

In the first paragraph of his Obergefell dissent, Justice Scalia wrote this:

[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension … of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice … robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.  (576 US at 713.)

I believe Obergefell was wrongly decided, and I agree wholeheartedly with the more general sentiment expressed in Scalia’s dissent.  But I also believe that Public Meaning Originalism, at least as practiced by the late Justice Scalia, is a fatally flawed interpretive tool.      

05/05/2022

Ilan Wurman: Reconstructing Reconstruction-Era Rights
Michael Ramsey

Ilan Wurman (Arizona State University - Sandra Day O'Connor College of Law) has posted Reconstructing Reconstruction-Era Rights (Virginia Law Review, forthcoming) (80 pages) on SSRN.  Here is the abstract:

It is conventional wisdom that the Reconstruction generation distinguished between civil rights, with respect to which the Fourteenth Amendment would require equality, and political and social rights, which would be excluded from coverage. This paper challenges that wisdom. It demonstrates that social rights were not a concept relevant to the coverage of Article IV’s Privileges and Immunities Clause (the Comity Clause), the precursor to the Fourteenth Amendment’s Privileges or Immunities Clause. Antebellum legal and political sources used the term “social rights” in a variety of ways, but none tracked the purported Reconstruction-era trichotomy of civil, political, and social rights; most uses of the term connected social rights to civil rights, which Article IV (and therefore the Fourteenth Amendment) reached.

The harder question is whether the Fourteenth Amendment reaches “public” rights and privileges as opposed to “private” rights. A close examination of antebellum jurisprudence suggests that public rights were excluded from the scope of Article IV because they were privileges of “special” citizenship but not “general” citizenship common to the citizens “in the several states.” Public privileges are likely included under the Fourteenth Amendment, however, which guarantees the privileges and immunities of citizens “of the United States” within particular states, including the privilege of all U.S. citizens to the public privileges of their own states to which they contribute through general taxation. If this framing is correct, then both the interracial marriage and school desegregation cases are easier to sustain on originalist grounds than prior studies have suggested.

Professor Wurman presented an earlier version of this paper at the 13th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference at the University of San Diego in February (with commentary from John Harrison of the University of Virginia Law School).

05/04/2022

Joel Alicea Responds to Casey & Vermeule on Common Good Constitutionalism
Michael Ramsey

At NRO, Joel Alicea (Catholic): Why Originalism Is Consistent with Natural Law: A Reply to Critics (responding to criticism by Professors Casey & Vermeule of an earlier article by Professor Alicea).  From the introduction: 

Constitutional theorists on the right are engaged in a debate about the moral foundations of originalism, the theory that government officials, including judges, are bound by the original meaning of the Constitution. I recently offered a defense of originalism’s moral authority grounded in the natural-law tradition. Harvard law professor Adrian Vermeule and his sometime co-author, University of Liverpool law professor Conor Casey, recently responded to my draft article, as did another supporter of Vermeule’s theory, lawyer and blogger Pat Smith. In the interest of furthering this important discussion about the moral foundations of originalism, I respectfully offer this reply.

The background of this controversy can be briefly stated. Originalism has been the reigning constitutional theory of legal conservatives since the election of Ronald Reagan, but in a March 2020 essay in the Atlantic, Vermeule called on legal conservatives to “abandon[] the defensive crouch of originalism” and embrace “a substantive moral constitutionalism that [is] not enslaved to the original meaning of the Constitution.” This alternative theory, which Vermeule called “common good constitutionalism,” would “read into the majestic generalities and ambiguities of the written Constitution” “substantive moral principles that conduce to the common good.” Vermeule elaborated on his theory in his new bookCommon Good Constitutionalism, in which he attempted to ground his theory in the natural-law tradition.

Shortly after Vermeule published his book, I posted online a draft article (forthcoming in the Notre Dame Law Review) that provides a natural-law justification for originalism and argues that Vermeule’s theory misunderstands the implications of the natural-law tradition for American constitutionalism. I argue that, under well-established natural-law principles, political authority — that is, the power to make and enforce laws and resolve legal disputes — is essential to secure those conditions that allow for human beings to flourish, conditions that we might call “the common good.” In the natural-law tradition, ultimate political authority is vested in the people of a society, and part of that authority is the power to constitute a government. Within the broad parameters of the natural law, the people have discretion in allocating authority within a regime to secure the common good, which the American people did by ratifying the Constitution.

My view (admittedly an oversimplified one) is that common good constitutionalism is no more than (but no less than) a center-right version of living constitutionalism. And (for originalism critics of the center-left): if you don't like originalism, this is the alternative.  The alternative isn't judicial restraint or sudden conversion to center-left living constitutionalism.

05/03/2022

Ernest Young: Standing, Equity, and Injury in Fact
Michael Ramsey

Ernest A. Young (Duke University School of Law) has posted Standing, Equity, and Injury in Fact (Notre Dame Law Review, forthcoming) (24 pages) on SSRN.  Here is the abstract:

This contribution to the Notre Dame Law Review's annual Federal Courts symposium on "The Nature of the Federal Equity Power" asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the symposium, that equity does not have causes of action as such--or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on whether the plaintiff has a cause of action. If Article III standing is to reflect traditional notions of which disputes are appropriate for judicial resolution, however, then that inquiry should include traditional practice on the equity side of the house, not just on the law side. I conclude that an equitable "grievance"--which Bray and Miller suggest plays a parallel role in equity to causes of action at law--typically involves a more particularized set of circumstances involving concrete harm or unfairness to the plaintiff. Equitable grievance, in other words, looks a lot like injury in fact. Attention to traditional equity practice thus may help put the Court's much-maligned injury-in-fact jurisprudence on a firmer footing.

05/02/2022

Cass Sunstein Responds to Chris Green (and Others) on "This Constitution" [Updated with a Comment from John Vlahoplus]
Michael Ramsey

Cass R. Sunstein (Harvard Law School) has posted 'This' (14 pages) on SSRN.  Here is the abstract:

The “supreme law of the land” includes “This Constitution,” and federal officers are “bound, by oath or affirmation, to support this Constitution.” In recent years, some people have argued that these words have strong implications for constitutional interpretation: They require oath-takers to be originalists and perhaps to follow the “original public meaning,” properly understood. An understanding of this argument requires an exploration of the diverse forms and conceptions of originalism, which raise puzzles of their own. Whether or not we embrace some form of originalism, the broader point is this: The claim that the term “this Constitution” mandates a contested theory of interpretation, including a contested form of originalism, belongs in the same category with many other efforts to resolve controversial questions in law by reference to the supposed dictate of some external authority. Whether maddening or liberating, there is nothing that communication just is, nor is there any such dictate. The choice is ours.

A principal target of the essay is co-blogger Chris Green, notably Christopher Green, “This Constitution”: Constitutional Indexicals As A Basis for Textualist Semi-Originalism, 84 Notre Dame L Rev 1607 (2009) and Evan Bernick & Christopher Green, What Is The Object of the Constitutional Oath? (2020), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3441234.

Via Larry Solum (also a leading target of the essay) at Legal Theory Blog, where it is "Download of the Week."  Professor Solum comments:

A careful and important paper. Highly recommended.  Download it while it's hot! ... The question then becomes whether "this constitution" refers to the full communicative content of the constitutional text, including contextual disambiguation and contextual enrichment.  For an argument that it does, see The Public Meaning Thesis.

I need to think about this some more, but I'm generally with Professors Green and Solum to this extent:  Surely a judge who says, I will only apply half of the Constitution's clauses isn't applying "this Constitution", but only half of "this Constitution."  And similarly (though perhaps more controversially), a judge who says, I will apply only the clauses of the Constitution that comport with my view of morality, or that are not incompatible with modern developments that the framers did not foresee, isn't applying "this Constitution", but only part of "this Constitution."  It would not matter, I think, if the judge claimed that he was applying a theory of interpretation, rather than just disregarding parts of the Constitution.  So it seems to me that Professor Sunstein needs a theory of what counts as a "theory of interpretation" that allows one to disregard the original meaning of "this Constitution", as opposed to just a decision to disregard the Constitution.  And I'm not sure he has one, or that there is one.

But I also think we could as a society just decide (and may have decided) to disregard the Constitution's meaning to some extent, including the oath and the reference to "this Constitution," if we decide originalism is a bad approach.  So I don't think one can escape the need for a normative evaluation of originalism.

UPDATE: JOHN VLAHOPLUS COMMENTS:

I believe that Professor Ramsey’s remarks shortchange Professor Sunstein’s arguments.  Sunstein makes the very simple point that the inclusion of “this Constitution” does not prove that originalism is the correct method of constitutional interpretation.  As he explains, “[m]any constitutions use a phrase of this kind (‘this Constitution’), and yet it is generally understood that they should not be interpreted in terms of” several specific versions of American originalism.  Sunstein does not propose that anyone disregard any part of the Constitution.  Instead, he argues that experience with those other constitutions “strongly suggests that the phrase ‘this constitution’ need not be taken to entail any particular view about how to interpret it, and that those who take an oath to support it need not endorse any theory of interpretation, though they will probably have to choose one.” 

The term “this Constitution” is self-referential, and we must answer the question what that self is.  We can't just assume the answer and say that anyone who answers differently is disregarding that self.  Sunstein is correct if either there is no original meaning to disregard or the Constitution’s text is sufficiently general to allow current applications of constitutional text to depend in part on current circumstances.  Everything comes down to whether there is a theory of interpretation that considers pluralist factors.  If there is, then a judge who chooses that theory fulfills the oath to enforce “this Constitution.”  One may disagree with the choice of that theory, but one cannot short-circuit the argument by pointing to the word “this.”

Take an analogy from reading recipes (discussed here at page 3).  Professor Gary Lawson concedes that it is possible to interpret a recipe as including any measures necessary to achieve its overarching purpose of producing a good dish of the recipe’s type, even if those measures contradict the text’s express terms.  He literally uses the word “interpret.”  Purposive readings of a text interpret the text. 

Now, Lawson insists that a recipe should only be read that way if the original public meaning of recipes includes an implicit (i.e., non-textual) instruction to do so.  Sunstein and I would deny that you need to identify an implicit historical instruction in order to interpret the Constitution or recipes purposively.  Purposive reading is valid method of “interpretation” regardless of the justification for choosing it.  An originalist would require an implicit historical justification, but a pluralist would not.

Sunstein does not engage in the argument over which type of interpretation is best.  He simply points out that you can’t avoid the argument by pointing to the term “this Constitution.” That self-referential term does not incorporate any particular method of textual interpretation.

05/01/2022

Katie Eyer: Disentangling Textualism and Originalism
Michael Ramsey

Katie R. Eyer (Rutgers Law School) has posted Disentangling Textualism and Originalism (23 pages) on SSRN.  Here is the abstract:

Textualism and originalism are not the same interpretive theory. Textualism commands adherence to the text. Originalism, in contrast, commands adherence to history. It should be self-evident that these are not—put simply—the same thing. While textualism and originalism may in some circumstances be harnessed to work in tandem—or may in some circumstances lead to the same result—they are different inquiries, and command fidelity to different ultimate guiding principles.

Why should this common-sense observation warrant academic commentary? Because both textualists and originalists—and even those who eschew such methodologies—are surprisingly inclined to conflate the two. Indeed, it is common (though not universal) today for textualists/originalists to treat textualism and originalism as a single inseparable package (adjudicated under the moniker of “original public meaning”), and to decline to rigorously delineate them in both theorizing and analysis.

In this Essay, I argue that disentangling textualism and originalism is critical to the future vibrancy and legitimacy of textualism as an interpretive methodology. When conflated with originalism, textualism holds almost endless opportunities for partisan manipulation of precisely the kind that textualism’s critics have decried. Moreover, many types of originalist inquiry can lead judges to results inconsistent with text—and thus textualism. In short, for an adjudicator to have genuine fidelity to any interpretive theory, it is critical for the adjudicator to know to which theory, in cases of conflict, the adjudicator ultimately subscribes.

Via Larry Solum at Legal Theory Blog, who comments:

A careful and sophisticated paper.  Highly recommended.  My view is a bit different.  Originalism is best viewed as a family of theories, only some of which are textualist, but "Public Meaning Originalism" as articulated by theorists is almost always understood as committed to the proposition that the communicative content of the constitutional text ought to constrain constitutional practice.  It is true that some judges who call themselves public meaning originalists may occasionally treat original expected applications as binding, but this best viewed as a departure from Public Meaning Originalism and certainly not as a feature of that theory.  Given this understanding, Public Meaning Originalism is a form of textualism.

I mostly agree with Professor Solum.  The paper is surely correct that there is in theory a difference between originalism and textualism; some originalists are not textualists, and some textualists are not originalists (e.g., David Weisberg).  But in practice, most modern originalists are textualists (and vice versa) following the Justice-Scalia-led shift to original meaning in originalist interpretation.  Scalia's emphasis on the text's original meaning fused the two approaches, as reflected for example in his 2011 book Reading Law (with Bryan Garner): that book treats the use of history to identify textual meaning as all part of the same enterprise.

Thus I think it is mostly not true that, as the paper says, "[i]n situations of conflict, a textualist is ultimately faithful to the text—an originalist is ultimately faithful to history" (p. 1).  An original meaning originalist is faithful to the text as informed by the history, but ultimately is faithful to the text.

I think it's very rare to see an original meaning originalist use history to contradict textual meaning.  Rather, the question is how much an original meaning originalist should use history to go beyond the text.  Arguably Scalia did this more than a more strict textualist would permit (see my discussion in Beyond the Text: Justice Scalia's Originalism in Practice).  But I think that is more a debate within original meaning originalism than a fundamental divide between originalism and textualism.

04/30/2022

Law & Liberty Symposium on Vermeule's Common Good Constitutionalism
Michael Ramsey

Law & Liberty has posted a symposium on Adrian Vermeule's Common Good ConstitutionalismA Return to Classical Law? Here are the contributions:

Originalism for the Common Good
John O. McGinnis

A Common Good Requires a Common People
Jesse Merriam

Uncommonly Bad Constitutionalism
James M. Patterson

Policing Common Good Constitutionalism
James R. Rogers

Classical Historicism?
Paul Seaton

From the introduction to John McGinnis's contribution:

Adrian Vermeule’s Common Good Constitution is a bracing, bold, and well-written defense of what he calls common good constitutionalism, with a corresponding assault on originalism. But for all its audacity and creativity, Vermeule’s theory will remain a minority view on the right for years to come. The originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists. Moreover, the substantive results he favors—unlimited power in the federal legislature without any substantial restrictions on the administrative state—are indistinguishable from the left’s program for the structural constitution and remain anathema to the right.

This likely failure of common good constitutionalism is a good thing, because Vermeule is not persuasive. Ironically, to the extent that his theory affects the judicial landscape, it is likely to strengthen originalism by highlighting to the left the dangers of morally infused judging and by encouraging originalists to consider whether they have overlooked some background principles at work at the Founding that can help resolve constitutional ambiguity and vagueness within the framework of original meaning.

RELATED: Conor Casey (University of Liverpool School of Law & Social Justice) & Adrian Vermeule (Harvard Law School) have posted Argument By Slogan (Harvard Journal of Law & Public Policy: Per Curiam, forthcoming 2022) (19 pages) on SSRN.  Here is the abstract:

This short essay responds to several lectures and talks given by Chief Judge William Pryor Jr. of the United States Court of Appeals for the 11th Circuit critiquing common good constitutionalism. We demonstrate that the arguments advanced by Chief Judge Pryor in favor of originalism badly misfire, permit the very things Judge Pryor wants to rule out, and beg the critical questions about the classical tradition. In the end, they amount to little more than argument by slogan.

04/29/2022

Federalist Society Executive Branch Review Conference Next Week
Michael Ramsey

The Federalist Society's Tenth Annual Executive Branch Review Conference will take place next Tuesday, 5/3, at the Mayflower Hotel in Washington D.C., and will be livestreamed at the conference webpage here.  The conference will feature talks by Senators Mike Lee and James Lankford, and panel sessions including:

 

04/28/2022

Michael Showalter: Corpus Linguistics Criticisms of Heller Misuse Corpus Linguistics
Michael Ramsey

Michael Showalter (Independent) has posted Corpus Linguistics Criticisms of Heller Misuse Corpus Linguistics (SMU Law Review, forthcoming) (19 pages) on SSRN.  Here is the abstract:

A number of linguistics experts have asserted that new corpus-linguistics evidence undermines the U.S. Supreme Court’s conclusion in District of Columbia v. Heller that the Second Amendment phrase "keep and bear arms" means to possess and carry weapons. At the time of ratification, the term "bear arms" carried both an idiomatic sense meaning “to serve as a soldier” and a literal sense meaning “to carry weapons.” The Heller majority concluded that the Second Amendment uses the literal sense, partly because the idiomatic reading has the absurd implication of causing the Amendment to protect a right to serve as a soldier. In recent years, however, several commentators have concluded from corpus data that "bear arms" was used more often in the idiomatic military sense than the literal sense at the time of ratification. The commentators have argued that this undermines the Heller majority’s interpretation.

But these commentators have misused corpus linguistics. Corpus data comparing usage of the literal and idiomatic senses may be relevant if there is ambiguity as to which sense the Second Amendment uses, but most of the commentators do not even mention the Heller majority’s conclusion that there is no ambiguity because the idiomatic reading is absurd. And the Heller majority was right—traditional tools of interpretation establish that the idiomatic reading is not plausible. The commentators err by treating the corpus data as probative before establishing the existence of even a modest level of ambiguity. Compounding the problem, most of the commentators have compared uses of "bear arms" in military contexts versus nonmilitary contexts, but ambiguity can exist only with respect to distinct senses, not distinct contexts. In sum, the commentators have skipped step one (establish a degree of ambiguity) and botched step two (compare usage of the competing senses).

These multiple analytical errors highlight the need for caution when evaluating the claims of linguistics experts or examining corpus data. Amid a developing debate over the use of corpus linguistics in the law, this Essay is significant both for its Second Amendment implications and as an interpretive cautionary tale.

This strikes me as a important paper (without expressing any view on the merits) because some prominent authorities have argued in strong terms that the post-Heller development of corpus linguistics has greatly undermined Justice Scalia's textualist conclusions in Heller.  This paper takes on those arguments directly and provides an important counterpoint.

04/27/2022

Mark Graber on Blackman & Tillman on Disqualification (with a Response from Blackman and Tillman)
Michel Ramsey

At Balkinization, Mark Graber: Legislative Primacy and the Fourteenth Amendment.  Fro the introduction:

Section 3 of the Fourteenth Amendment disqualifies from holding state or federal office any person who has participated in an insurrection or rebellion against the United States.  Josh Blackman and Seth Barrett Tillman maintain that the persons responsible for the Fourteenth Amendment thought that only Congress could implement Section 3 (“Only the Feds Could Disqualify Madison Cawthorn and Majorie Taylor Greene,” New York Times, April 20, 2022) [Ed.:  see here].  Their claims are technically correct, but grossly misleading with respect to the original understanding of the Fourteenth Amendment and false to American practice for more than one-hundred and thirty years.

Blackman and Tillman are right to note that the Republicans who drafted the Fourteenth Amendment believed that Congress was responsible for implementing Section 3.  They fail to inform their readers that those same Republicans believed that Congress was responsible for implementing the entire Fourteenth Amendment.  Section 3 was no different than what became the more popular Section 1, which includes the citizenship, privileges and immunities, due process, and equal protection clauses.  During the late nineteenth, twentieth and early twenty-first century, the Supreme Court without objection took on the primary responsibility for implementing Section 1. The justices have never suggested that Section 3 is an exception to this practice.

The persons responsible for the Fourteenth Amendment were committed to a practice we might call legislative primacy.  Congress was expected to take the lead implementing the post-Civil War Amendments by legislation.  Courts might examine the constitutionality of that legislation, but courts were not expected to play a major, if any role independently implementing the constitutional ban on slavery or the provisions of the Fourteenth Amendment.  Legislative primacy reflected both theory and practice in the 1860s.  Many leading Republicans believed that political parties, not courts, were the primary vehicles for constitutional meaning.  Abraham Lincoln in his first inaugural address insisted that the people through elections had the right to challenge Supreme Court decisions.  As important, a Supreme Court staffed by a number of holdovers from the tribunal that declared in Dred Scott v. Sandford (1856) former slaves could not be American citizens was hardly likely to lead a crusade for racial equality after the Civil War.  If the Fourteenth Amendment was going to be implemented, Congress would have to do the implementing.  Every member of Congress knew this.

And from further on:

When championing legislative primacy, no member of the Congress that drafted the Fourteenth Amendment distinguished between Section 1 and Section 3.  Neither the participants in the debate over the Civil Rights Act of 1875 nor the justices that decided Ex parte Virginia thought the rules for implementing Section 1 differed from Section 3.  No Supreme Court justice who has asserted independent power under Section 1 to strike down legislation has ever suggested that institutional responsibility for implementing Section 3 is different. 

There is no difference.  Judges who swear off implementing Section 3 are on principle obligated to swear off implementing Section 1.  This means liberals must abandon Roe v. Wade and conservatives must accept affirmation action and gun control laws.  Indeed, if we are to harken to calls to respect the original understanding of the Fourteenth Amendment, the same courts that refuse to disqualify persons from public office who participated in the January 6, 2021 insurrection will on principle be obligated to reverse the Supreme Court’s decision in Brown v. Board of Education (1954), which was also based on the independent judicial authority to interpret the Fourteenth Amendment Blackm[a]n and Tillman would have the courts abjure.

Professors Blackman and Tillman respond: A Reply to Mark Graber’s ‘Legislative Primacy and the Fourteenth Amendment’

04/26/2022

Justice Gorsuch Plus 5 Say Brown v. Allen Was Dubious on Originalist Grounds
Michael Ramsey

In another potentially important originalist opinion from last week, Justice Gorsuch, writing for himself and five others in Brown v. Davenport, questioned the Court's 1953 habeas corpus decision in Brown v. Allen.  From his majority opinion:

Usually [i.e., historically], a prisoner could not use [habeas corpus] to challenge a final judgment of conviction issued by a court of competent jurisdiction. See, e.g., Opinion on the Writ of Habeas Corpus, Wilm. 77, 88, 97 Eng. Rep. 29, 36 (K. B. 1758). If the point of the writ was to ensure due process attended an individual’s confinement, a trial was generally considered proof he had received just that. See, e.g., Bushell’s Case, Vaugh. 135, 142–143, 124 Eng. Rep. 1006, 1009–1010 (C. P. 1670).

This traditional understanding extended from England to this country and persisted through much of our history. Asked to apply the Nation’s first habeas statute to a duly convicted prisoner, Chief Justice Marshall invoked the common-law rule that a judgment of conviction after trial was “conclusive on all the world.” Ex parte Watkins, 3 Pet. 193, 202–203 (1830). Acknowledging that Congress had authorized the Court to “inquire into the sufficiency of ” the cause of the petitioner’s detention, Marshall asked rhetorically, “is not that judgment in itself sufficient cause?” Id.,  at 202 (emphasis added); see also Ex parte Parks, 93 U. S. 18, 21–22 (1876); P. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465–469 (1963) (Bator).

If the answer was nearly always yes, an important exception existed in both English and American law: A habeas court could grant relief if the court of conviction lacked jurisdiction over the defendant or his offense...

By 1953, however, federal habeas practice began to take on a very different shape. That year in Brown v. Allen this Court held that a state-court judgment “is not res judicata” in federal habeas proceedings with respect to a petitioner’s federal constitutional claims. 344 U. S. 443, 458 (1953). A state court may reject the petitioner’s claims after a fair hearing. No appellate court, including this one, may see fit to reverse that final judgment. Yet still, Brown suggested, a federal district court approaching the same case years later should be free to decide de novo whether the state court proceedings “resulted in a satisfactory conclusion” and to issue habeas relief if that conclusion is found wanting. Id., at 463; see also Wright, 505 U. S., at 287–288 (plurality opinion). The traditional distinction between jurisdictional defects and mere errors in adjudication no longer restrained federal habeas courts. Full-blown constitutional error correction became the order of the day.

As an aside, this is the way we learned Brown v. Allen in my federal courts class when I was in law school, except that it was regarded as a positive development.  Gorsuch doesn't call for it to be overruled, or even directly say it was wrongly decided, but he concludes that Brown v. Allen's reworking of habeas justifies later courts cutting back on the scope of the writ to compensate for Brown's expansion.

Justice Kagan had some sharp words in dissent: 

Because the majority begins with some law-chambers history, see ante, at 7–11, I do too—though fair warning: My discussion is no more relevant than the majority’s to the issue before us. Not surprisingly, neither of the parties to this small and legally mundane case thought it a suitable occasion for a from-Blackstone-onward theory of habeas practice. Yet the majority, unprompted, embarks on that project, perhaps hoping that the seeds it sows now will yield more succulent fruit in cases to come. In the majority’s story, post-conviction habeas relief was all but unavailable until the mid-20th century—when in an instant the Court in Brown v. Allen, 344 U. S. 443 (1953), upended the rules. That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion. See Edwards v. Vannoy, 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at 2–8); id., at ___ (slip op., at 3) (Habeas historically “provided no recourse for a prisoner confined pursuant to a final judgment of conviction”). But the theory, in its fundamentals, is wrong. Federal courts long before Brown extended habeas relief to prisoners held in violation of the Constitution—even after a final conviction. ...

...

The majority tries to cram the many habeas decisions belying its position into a narrow jurisdictional “exception,” ante, at 8—but its effort does no more than reveal the peril of looking at history through a 21st-century lens. In the majority’s view, a habeas court could grant relief only “if the court of conviction lacked jurisdiction,” not if it committed “errors in adjudication.” Ante, at 8, 10. But some of the decisions the majority must contend with made no mention at all of the convicting (or sentencing) court’s jurisdiction. See, e.g., Wells, 18 How., at 308–315; Yick Wo, 118 U. S., at 365–374. And those that did so often used the word to mean something different from what it does today. The concept of “jurisdictional defects” (ante, at 9) could at that time include—rather than contrast with—constitutional errors of the kind described above.1 As one legal historian puts the point: The jurisdictional inquiry was then (though of course not now) often “merits based.” A. Woolhandler, Demodeling Habeas, 45 Stan. L. Rev. 575, 630 (1993).

She also relied in part on a forthcoming academic article -- from her footnote 2:

A forthcoming article makes much the same point in addressing the concurrence that anticipated today’s historical musings. See supra, at 2; Edwards v. Vannoy, 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at 2–8). Professor Jonathan Siegel writes that the concurrence “relies on quotations” invoking a court’s jurisdiction “without fully acknowledging the meaning that they had in their original context. [It] incorrectly ascribes to these quotations the meaning they might have if a court wrote them today. One must, however, always remember that
‘the past is a foreign country; they do things differently there.’ Historical statements must be understood in their historical context.” Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. (forthcoming 2022) (draft, at 4), https://ssrn.com/abstract=3899955 (footnote omitted).