The Originalism Blog

Joseph Blocher & Brandon Garrett: Originalism and Historical Fact-FindingMichael Ramsey

Joseph Blocher (Duke University School of Law) & Brandon L. Garrett (Duke University School of Law) have posted Originalism and Historical Fact-Finding (Georgetown Law Journal, forthcoming) (53 pages) on SSRN.  Here is the abstract:

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on its being simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the usual fact-finding protocols, many recent Supreme Court rulings have based the scope of constitutional rights on claims of historical fact—with those claims drawn primarily from amicus briefs, and involving some serious factual errors. This is significant in two broad sets of cases: those that rely on history to apply a constitutional rule (as lower courts are doing with the historical-analogical test prescribed by New York State Rifle & Pistol Association v. Bruen) and those that rely on history to set the content of a constitutional rule (for example in Dobbs v. Jackson Women’s Health Organization’s rejection of a constitutional right to abortion). The latter—which we call “declarative historical fact”—have become especially prominent in recent years.

In this Article, we explore the promise and peril of treating historical fact-finding like other kinds of fact-finding in our legal system. Doing so calls into doubt originalism’s near-exclusive focus on historical fact-finding at the appellate level, informed by amicus briefs and judges’ or Justices’ own historical research. Our legal system gives trial courts primary authority over fact-finding, and many trial judges attempting to implement the Supreme Court’s originalist decisions have turned to historians as experts, holding hearings and calling for briefing at trial level. Such trial-level historical fact-finding imposes serious burdens and faces important limitations, but also has important institutional and constitutional advantages over appellate findings of historical fact.

In addition to emphasizing the proper role of trial courts, our analysis suggests a more important role for Congress both in finding historical facts and in regulating appellate review of historical facts. Courts arguably owe deference—perhaps substantial deference—to congressional fact-finding, and it is not immediately apparent why historical fact-finding should be any different. Congress might also legislate standards of review for judicial fact-finding, including for historical facts used in constitutional litigation. This type of “fact-stripping,” a form of jurisdiction stripping, is consistent with congressional power over Article III courts, as we have developed in prior work.

If originalism is to maintain its claim on being fact-based, it must grapple with these fundamental issues regarding the litigation of facts in our legal system. If it is not practically possible for judges develop a sound record of historical facts, then any approach to interpretation relying on such facts will not produce convincing, legitimate, or lasting interpretations of the Constitution.

Evan Bernick: Canon Against ConquestMichael Ramsey

Evan D. Bernick (Northern Illinois University - College of Law) has posted Canon Against Conquest (72 pages) on SSRN.  Here is the abstract:

The interpretive rules that require judges to read treaties, statutes, and other legal texts in favor of Native nations and people have always been contested. But seldom has the future of the “Indian canon” seemed so uncertain. Several sitting Supreme Court Justices have questioned the legitimacy of the Indian canon, expressing skepticism about the roots of the specific rules that constitute it and raising doubts about whether “Congress has always framed statutes in a way that are favorable to Indian tribes.” Other Justices have written or joined opinions that have narrowed and diluted it.

This Article traces the origins of the Indian canon and defends it on originalist and textualist grounds. It then contends that the canon should be codified to ensure its survival. This codification should be expressly grounded in a constitutional commitment to tribal sovereignty. Tribal sovereignty was part of the law of nations at the Founding; it was built into the original meaning and structure of the Constitution; and it persists today, in spite of state and federal efforts to extinguish it.

Codification is necessary because it is not enough to answer criticisms of the Indian canon from the standpoint of originalism, textualism, or any other methodology that holds sway on the Supreme Court. The canon has been diminished, disparaged, and nearly discarded by judges of a variety of methodological persuasions. Codification will increase the likelihood that the canon will be deployed to protect Native lands, governance, and culture. As an act of legislative constitutionalism, it will be at once entitled to respect and tailored to receive it.

Eric Segall on Baude and Paulsen on the Fourteenth Amendment and InsurrectionMichael Ramsey

At Dorf on Law, Eric Segall: Of Insurrections, Presidents, and the Utter Failure of Constitutional Law to Address the Real Issues.  From the introduction:

Two of America's most prominent conservative constitutional law professors, both self-described originalists, Will Baude and Michael Paulsen, have penned a 126-page opus explaining why Section 3 of the Fourteenth Amendment disqualifies on its own terms with no enabling legislation Donald Trump and likely many others from holding office under the United States or any state. ...

Everyone agrees that[Section 3] was meant to deal with the Confederacy but is written broadly to apply to other insurrections and rebellions. That is where the agreement ends.  In their article, Baude and Paulsen cover every angle, dissect every word, meet every counter-argument, and apply their legal conclusions to Trump and January 6th. Their textual and historical analysis is rigorous, sophisticated, and careful. I would love for them to be right. 

What the authors do not do is discuss whether it is a good or bad thing for America that Section 3 works the way they say it does and therefore disqualifies the clear frontrunner for the GOP Presidential nomination from holding office. To them, the answer is in meaning and history, not consequences and results. And that, in a nutshell, is what is so terribly wrong with constitutional law today.

Before we begin, I want to make my priors clear: I dislike Donald Trump more than any other public figure I have come across in my 65 years on this planet.

The authors reach four crucial and contestable conclusions about Section 3:

1) Section 3 is a fully operative constitutional provision today;

2) Section 3 is self-executing: the disqualification is constitutionally automatic whenever its terms are satisfied, and no state or federal law is necessary for disqualification;

3) Section 3 supersedes or is reconcilable with other constitutional provisions, such as the First Amendment, the Bill of Attainder clauses, and the Due Process clauses.

4) Section 3 has a broad and expansive sweep. It  

disqualifies from future office-holding persons who 'engaged in'—an expansive and encompassing term connoting many forms of participation in or active support of—a broad swath of activity covered by the terms 'insurrection or rebellion' or the giving of 'aid or comfort to 'enemies' of the nation or its constitutional order. It applies to a broad swath of civilian, military, and legislative office holders who swore oaths of fidelity to the Constitution, and it disqualifies such persons from holding in the future any of an extraordinarily broad swath of public offices.

Leaving aside the imprecise nature of a "broad sweep," I am inclined to agree with the authors' conclusions about how Section 3 disqualifies Trump.  But that is mostly because the text allows for that result and I think our country would be much better off without Donald Trump in our politics (as discussed below, however, I may be wrong about that). It is not because the text or original meaning of Section 3 clearly supports these views or because no one could argue to the contrary. In fact, most of the authors' legal conclusions are debatable based on text, history, and precedent. 

And yet, throughout the article, the authors make the same mistake the justices make every term. They treat contestable arguments and debatable historical accounts as if they are not contestable and not debatable. There is some humility in this article, but not nearly enough. As Professor Aaron Tang has observed about the justices, if "today’s justices were . . . humble, they would freely admit that sometimes, especially in the difficult cases that divide our society, they cannot find a clear answer." The same is true with many of the issues raised by Section 3, but you wouldn't know that from reading this article.

I will focus on two examples to illustrate the problem. Then, I will explain why this article exemplifies how badly we do constitutional law in this country. ...

Michael McConnell on the Fourteenth Amendment and InsurrrectionMichael Ramsey

At Volokh Conspiracy, Michael McConnell has this guest post on the Fourteenth Amendment and disqualification for insurrection.  From the introduction:

There is a recent flurry of interest in Section 3 of the Fourteenth Amendment, which bars any person who has "engaged in" an "insurrection or rebellion" (after having previously taken an oath to support the Constitution) from holding state or federal office. This provision has played no significant role in American governance since 1872 and was regarded by many scholars as moribund. The revival of interest in Section 3 is sparked by scholarship by several scholars with impeccable conservative credentials, including my friends Will Baude, Michael Paulsen, and Steve Calabresi. Their work advocates a "broad, sweeping" interpretation of the disqualification provision, and claims that under Section 3, Donald Trump is ineligible to run for a second term, without any further process, hearings, or adjudications. Already it has drawn the attention of the New York Times, and presumably will fuel efforts to keep Trump off the ballot.

I have no truck with Trump, for whom I have low regard. But in the haste to disqualify Trump, we should be wary of too loose an interpretation of Section 3.

We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555 (1964). The broader and more nebulous the definition of engaging in insurrection, and the fewer the procedural safeguards, the greater the danger. ...

Owen Smitherman: History, Public Rights, and Article III StandingMichael Ramsey

Owen Smitherman (Harvard Law School JD '23) has posted History, Public Rights, and Article III Standing (56 pages) on SSRN.  Here is the abstract:

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort.

This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

Curtis Bradley: International Agreements by U.S. StatesMichael Ramsey

Curtis Bradley (University of Chicago Law School) has posted International Agreements by U.S. States: Federalism, Foreign Affairs, and Constitutional Change (40 pages) on SSRN. Here is the abstract:

The text of the U.S. Constitution appears to require that, to the extent that individual states are ever allowed to conclude agreements with foreign governments, they must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments and almost never seek congressional approval. This practice is an illustration of both the importance of federalism in U.S. foreign relations and the significant role played by historical practice in informing U.S. constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a climate change agreement that the state of California had made with the Canadian province of Quebec. Despite this challenge, for the most part neither Congress nor the executive branch has resisted the growth in state international agreements. This acquiescence could change as countries like China target U.S. states in an effort to work around strained relations with the U.S. national government, and as states become more assertive in resisting the national government’s foreign policies. In any event, the practice of state international agreements unapproved by Congress rests in part on a distinction between binding and nonbinding agreements that deserves greater scrutiny under both domestic and international law.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")

There is isn't a good originalist account of this issue, and I haven't looked at it closely enough to have definite views, but I think the suggestion that many of these "agreements" are actually nonbinding is a helpful one.  (Calling an agreement nonbinding solves a lot of constitutional issues: see my thoughts here). It may also be, though, that we have just ended up very far from the original meaning for no good reason.

William Baude & Michael Stokes Paulsen: The Sweep and Force of Section ThreeMichael Ramsey

William Baude (University of Chicago - Law School) & Michael Stokes Paulsen (University of St. Thomas School of Law) have posted The Sweep and Force of Section Three (University of Pennsylvania Law Review, Vol. 172, 2024) (126 pages) on SSRN.  Here is the abstract:

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

(Via How Appealing.)

RELATED: At Volokh Conspiracy, Steven Calabresi: Trump Is Disqualified from Being on Any Election Ballots.

Seth Barrett Tillman on the Presentment ClauseMichael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Presentment of Resolutions Clause (Heritage Guide to the Constitution (3d ed. forthcoming)) (6 pages) on SSRN.  Here is the abstract:

The Presentment of Resolutions Clause at the Federal Convention.

On August 15, 1787, after the outlines of the Veto or Presentment Clause (Article I, Section 7, Clause 2) had been agreed upon, James Madison noted that Congress could evade the possibility of a presidential veto by simply denominating a “bill” as a “resolution[], vote[], &c” [5 Elliot’s Debates 431.] For that reason, he made a motion to insert the words “or resolve” after the word “bill” in the Presentment Clause. Madison characterized the debate on his motion as “confused”—this was the only such debate at the Convention that was so characterized. And his motion was defeated 8 to 3. [Id.]

The following day Edmund Randolph proposed a freestanding clause—with extensive and exacting language. Indeed, Randolph’s initial proposal was nearly identical to the final language which emerged from the Convention as Article I, Section 7, Clause 3. The Convention, without debate or explanation, approved Randolph’s proposal 9 to 1. [5 Elliot’s Debates 431; Tillman, Textualist, 1314 n.106.] Seven states that voted against Madison’s proposal voted for Randolph’s. Nevertheless, Madison characterized Randolph’s measure as “a new form [of Madison’s prior] motion putting votes, resolutions, &c., on a footing [equal] with bills.” [5 Elliot’s Debates 431.]

There does not appear to be any substantial debate on the clause from the ratification era—at the Convention, in the state ratifying conventions, or within other public materials, such as newspapers. Although many modern sources discussing the Constitution omit all discussion of the clause, those that do discuss it, have consistently adopted Madison’s understanding of the clause: the purpose of the clause is to preclude Congress’s evading the President’s veto by denominating a bill something other than a bill. [Compare AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY passim (2006), with CONGRESSIONAL RESEARCH SERVICE / LIBRARY OF CONGRESS, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 301, S. DOC. NO. 117-12, 117th Cong., 2d Sess. (Jeanne M. Dennis et al. eds., with cases decided by the Supreme Court of the United States to June 30, 2022).]

There is some reason to doubt that Chadha was correctly decided as a matter of original public meaning. Or, to put it another way, as a matter of original public meaning, there are some good reasons to doubt the correctness of the standard Madisonian reading of this clause.

This essay is part of an on-going major revision and update to the Heritage Guide.  Professor Tillman has two other draft entries:

Convening of Congress Clause

Quorum Clause

Judge Carlos Bea on Butterfly Knives and the Second AmendmentMichael Ramsey

In a recent case, Teter v. Lopez, a Ninth Circuit panel (Judges Bea, Collins and Lee) invalidated Hawaii's ban on butterfly knives (a type of pocketknife).  Unlike some other courts, the panel did not seem to have difficulty applying the Supreme Court's decision in Bruen.  From Judge Bea's opinion for the panel: 

[T]he first question in Bruen was “whether the plain text of the Second Amendment protects [the plaintiffs’] proposed course of conduct—carrying handguns publicly for self-defense.” [Bruen], at 2134. In answering it, Bruen analyzed only the “Second Amendment’s text,” applying ordinary interpretive principles. Id. at 2134–35. Because the word “‘bear’ naturally encompasses public carry,” the Court concluded that the conduct at issue in Bruen (public carry) was protected by the plain text of the Second Amendment. Id. at 2143.

The second question addressed in Bruen was whether New York had met its burden in proving its “proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 2135. In answering this second question, Bruen noted that “not all history is created equal.” Id. at 2136. It reasoned that the most apposite historical sources from which to derive a comparable historical analogue to the challenged statute are those close in time to 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment was ratified). Id. at 2136–38.

We similarly structure our analysis. First, we examine whether possession of butterfly knives is conduct covered by the plain text of the Second Amendment. Concluding that it is, we then analyze whether Hawaii has demonstrated that its complete prohibition of that conduct is consistent with this Nation’s historical tradition of regulating arms.

On the first point:

In Heller, the Supreme Court held that a handgun was an “arm” within the meaning of the Second Amendment. 554 U.S. at 581, 628–29. In reaching that conclusion, the Court began by noting that, as a general matter, the “18th-century meaning” of the term “arms” is “no different from the meaning today.” Id. at 581. Then, as now, the Court explained, the term generally referred to “[w]eapons of offence, or armour of defence.” Id. (cleaned up). The Court further noted that all relevant sources of the original public meaning of “arms” agreed that “all firearms constituted ‘arms’” within the then-understood meaning of that term. Id.

The Court emphasized that it is irrelevant whether the particular type of firearm at issue has military value, because the term “arms” “was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.” Id. And, just as the scope of protection afforded by other constitutional rights extends to modern variants, so too the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. at 582.

We similarly conclude that, just as with firearms in Heller, bladed weapons facially constitute “arms” within the meaning of the Second Amendment. Like firearms, bladed weapons fit the general definition of “arms” as “[w]eapons of offence” that may be “use[d] in wrath to cast at or strike another.” Id. (cleaned up). Moreover, contemporaneous sources confirm that, at the time of the adoption of the Second Amendment, the term “arms” was understood as generally extending to bladed weapons. ...

On the second point:

Because the possession of butterfly knives is covered by the plain text of the Second Amendment, Hawaii must prove that section 134-53(a) is consistent with this Nation’s historical tradition of regulating weapons. Bruen, 142 S. Ct. at 2126–27, 2135. Hawaii may meet its burden by citing analogous regulations that were enacted close in time to the Second Amendment’s adoption in 1791 or the Fourteenth Amendment’s adoption in 1868. Id. at 2136–38. “Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years,” and “we must also guard against giving postenactment history more weight than it can rightly bear.” Id. at 2136. Hawaii must derive from these sources a “proper [historical] analogue” to section 134-53(a). Id. at 2132.

In this historical-analogue inquiry, we cannot “uphold every modern law that remotely resembles a historical analogue.” Id. at 2133. “On the other hand, analogical reasoning requires only that the government identify a well established and representative historical analogue, not a historical twin.” Id. In determining whether the modern regulation and the historical analogue are “relevantly similar,” we must look to the “how and why” of the two regulations; that is, “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central  considerations when engaging in an analogical inquiry.” Id. at 2132–33. (cleaned up).

Hawaii argues that section 134-53(a) is analogous to a number of state statutes stretching back to 1837, which regulated “Bowie knives,” “Arkansas Toothpicks,” “slungshots,” metal knuckles, sword-canes, and other so-called “deadly weapons.” Hawaii argues that these statutes evince an historical tradition of banning weapons associated with criminality. We disagree that these statutes are proper historical analogues to section 134-53(a). ...

But we'll see if that holds up through the en banc process.

(Thanks to Alan Beck, USD law grad and counsel for the claimants, for the pointer.)

Adam White on Judge Thapar on Justice ThomasMichael Ramsey

In the Washington Free Beacon, Adam J. White (George Mason - Scalia): The Justice’s People (reviewing The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him by Judge Amul Thapar).  From the introduction:

... Justice Thomas [has been] dogged relentlessly by accusations that his judgments and jurisprudence punished the poor and weak. A year into his service on the Court, the New York Times called him "The Youngest, Cruelest Justice" and condemned him for purportedly turning his back on society’s most vulnerable. And this year, when the Supreme Court ruled that race-based university admissions are unlawful, one prominent pundit tweeted a photograph of Thomas, denouncing "the face of a man who climbed the ladder of affirmative action to his present perch of power only to help destroy the very ladder on which he ascended."

After decades of such attacks, Judge Amul Thapar responds in Thomas’s defense. "By cherry-picking his opinions or misrepresenting them," Thapar writes, "Justice Thomas’s critics claim that his originalism favors the rich over the poor, the strong over the weak, and corporations over consumers." Thapar shows that many of Thomas’s opinions actually cut in the other direction. He recounts 12 of those cases, and the people at the heart of them, in The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him.

Some of these cases are already famous, their people the subjects of entire books. The best example is Susette Kelo, who struggled to defend her modest home against the combined powers of local politicians and Pfizer, who sought to force the sale of her house for the sake of a new corporate campus that would supposedly boost the local economy and tax revenues. When the Supreme Court upheld their taking of private property as constitutional, Justice Thomas dissented emphatically: "Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not," due to the Court’s "almost complete deference it grants to legislatures as to what satisfies it."

Less famous are other cases, such as City of Chicago v. Morales (1999), where the Court ruled that Chicago’s anti-gang loitering law was unconstitutionally vague. Here, too, Justice Thomas dissented, highlighting the people who would suffer from the Court’s ruling—and his colleagues’ comfortable distance from the brutal reality of the situation. "Today the Court focuses extensively on the ‘rights’ of gang members and their companions," he wrote. "It can safely do so—the people who will have to live with the consequences of today’s opinion do not live in our neighborhood. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs."

The book’s title and cover photo notwithstanding, each chapter centers not on Justice Thomas’s opinions, but on the personal stories underlying each case. In each chapter, Thomas’s opinion—10 dissents and 2 concurrences, never a majority opinion for the Court—punctuates a story of common people and communities. The book might have been called The Justice’s People. ...

The Relevance of Railroad Rules Restricting the Carrying of FirearmsMike Rappaport

Mike Ramsey endorses Josh Hochman's view that rules enforced by private railroads during the 19th century should be employed to determine the historical tradition of firearm regulation.  I have only looked at Hochman's article briefly but I am not sure that I entirely agree. 

If a private entity, such as a railroad, restricts access to a firearm, this does not necessarily constitute a regulation of the right to carry firearms.  After all, if a person in 1791 did not allow people with firearms to enter their house, that would not constitute part of the tradition of regulating firearms.  Instead, there is a distinction between private and public entities. 

Hochman argues that when functions previously undertaken by private entities are transferred to public entities, one should consider the regulations previously applied by private entities to be part of the tradition of firearm regulation.  Again, I am not so sure.  If private colleges can restrict speech without violating the first amendment, does that mean that public colleges can do so as well?  Even if the first amendment enforced a tradition of speech regulation, in the way that the second amendment does, would it be permissible to rely on private college rules?   

To be clear, I am not fully rejecting the argument that railroad rules are relevant to the tradition of firearm regulation.  I am just not certain and would welcome further discussion. 

Kristen Eichensehr & Oona Hathaway: Major Questions about International AgreementsMichael Ramsey

Kristen Eichensehr (University of Virginia School of Law) & Oona A. Hathaway (Yale Law School) have posted Major Questions about International Agreements (University of Pennsylvania Law Review, Vol. 172, forthcoming) (53 pages) on SSRN.  Here is the abstract:

The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some justices have suggested that they want to go further and reinvigorate the non-delegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments.

The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional-executive agreements, executive agreements pursuant to treaties, sole executive agreements, and non-binding agreements, and it explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them.

Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or non-delegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as suffer harm to its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign relations-related issues in exceptional ways.

After arguing against using the major questions and non-delegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.

Or, we could say ex-ante congressional-executive agreements are unconstitutional, and make international agreements as directed by the Constitution's original design -- through the treatymaking clause.  In my view, open-ended ex-ante authorization of presidential agreement-making poses the same sort of dangers of presidential aggrandizement as does open-ended domestic delegation.

Law & Liberty Symposium on The Federalist PapersMichael Ramsey

At Law & Liberty, a series of essays (not by law professors!) on The Federalist's contemporary significance:

Harry T. Edmondson (Georgia College - Political Science): Why Do We Still Read The Federalist Papers?

Steven D. Ealy (Liberty Fund): What Publius Missed

Aaron N. Coleman (University of the Cumberlands - History): The Original Meaning of The Federalist

Matthew Schoenbachler (University of North Alabama - History): The Federalist Reconsidered

From the introduction to the lead essay: 

Yet to say that the Federalist essays are remarkable does not guarantee they are relevant. After all, the country is currently enduring an episode in American politics in which the very ideas and personalities of the American Founding are attacked even if those attacks proceed from ignorance more often than not. Are the Federalist essays up to the challenge? Since a comprehensive discussion of the abiding significance of the Federalist Papers would exceed the scope of the project at hand, their defense here is limited to 1) Constitutional interpretation; 2) the independence of the judiciary; 3) considerations of human nature; 4) the difficult problem of slavery; and, 5) compromise as a means of political survival.

And from the conclusion of the last essay:

The Federalist is a hastily written polemic called forth by the political concerns of the late eighteenth century and wonderfully illustrative of its day. It is also, improbably, a timeless reflection of issues of power, liberty, and human nature.

Josh Hochman: Public and Private Historical Traditions of Firearm RegulationMichael Ramsey

Josh Hochman (Yale Law School J.D. '24) has posted The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation (Yale Law Journal, forthcoming)  (43 pages) on SSRN.  Here is the abstract:

This Note argues that the Supreme Court’s Second Amendment jurisprudence allows, and may require, courts to consider sources of analogical precedent outside of formal lawmaking. Taking public transportation as a case study, this Note is also the first account to chart how historical firearm regulations in sites of transportation should inform the constitutional basis for regulating guns in contemporary trains and subways. Surveying rules and regulations promulgated by railroad corporations in the nineteenth century, it argues that these sources reveal an historical tradition of regulating passengers’ firearms. This case study instructs that courts and litigants can honor Bruen’s history-based test only by considering all of the nation’s history of firearm regulation, not just statutes.

Agreed.  Pre- and post-enactment practices can be important context for establishing original meaning.  There's no reason to limit this contextual inquiry to enacted statutes.  If Bruen suggested otherwise, it shouldn't have (but I don't think it did).

William Treanor: Gouverneur Morris and the Drafting of the Federalist ConstitutionMichael Ramsey

William Michael Treanor (Georgetown University Law Center) has posted Gouverneur Morris and the Drafting of the Federalist Constitution (Georgetown Journal of Law & Public Policy, Vol. 21, No. 1, 2023) (25 pages) on SSRN.  Here is the abstract:

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger Sherman. There is a lot to work with.

Gouverneur Morris is the one “forgotten founder” who really shouldn’t be forgotten. The classic picture of Gouverneur Morris is actually a joint picture painted by Charles Willson Peale in 1783. Gouverneur Morris is on the left, and Robert Morris is on the right. They weren’t relatives, despite the shared last name, but they were very close. Gouverneur Morris and Robert Morris were business partners during the Revolutionary War. Robert Morris, who is kind of the Jeff Bezos of the 1780s, was as close as the United States had to a president during the Revolutionary War. He was the head of finance and Gouverneur Morris was his number two. I will be focusing today on Gouverneur Morris’s work on the Committee of Style at the end of the Federal Constitutional Convention.

As the Federal Constitutional Convention is drawing to close, it’s hot and everybody’s tired. It has been four weeks since they had a draft of the Constitution, which was composed by the Committee of Detail. There has been a month of debate and votes up, votes down. There’s no draft constitution, even though the Convention is near the end of its work. So, the delegates together form a committee—the Committee of Style and Arrangement—and over three days this committee drafts the Constitution with Morris as the lead drafter. And then, very hurriedly, the Convention reviews it, almost completely adopts it, and goes home. The work of the Committee is supposed to be polishing the Constitution—taking what’s already been agreed to and putting it in a final document.

But what I argue in a recently published article in the Michigan Law Review— the basis of this talk—is that, as the drafter on the Committee of Style, Morris made fifteen substantive changes. As you’ll see, most of them are very subtle, but they have incredible consequence: He carefully picked words to advance particular substantive ends. With the passage of time, we have lost the meaning of much of this text. But if we are going to read the Constitution clearly—and as it was ratified at the time—we must recover the meaning of the texts that, on fifteen occasions, he changed. This is particularly important at a time when four members of the Supreme Court are originalists and focus on the original meaning of these words.

One part of this talk is about the changes he made. There were a number of basic causes Gouverneur Morris tried to advance during the Constitutional Convention, and he lost a lot of those battles in the months before he became the Committee of Style’s drafter. He was a big government person. He was probably, with the possible exception of Alexander Hamilton, the strongest nationalist at the Convention. He was a big protector of private property. He was a champion of the judiciary and judicial review, and he was unquestionably the fiercest opponent of slavery at the Convention. And he was, with James Wilson, the Convention’s leading champion of the Presidency. In each of those areas, on the Committee of Style, he made very subtle changes to advance his goals. If you read the text in accordance with the meaning of the words in 1787, you’ll see how it reflects his meanings, what he wanted to achieve.

Taken all together, with these changes, Morris created the Federalist Constitution. That will be the subject of the first part of this talk. But most originalists today read the Constitution very differently. They see the Constitution as a Jeffersonian Republican Constitution, not as a Federalist Constitution. And the reason why that occurred is the topic of the final part of this talk. I will discuss how the Constitution’s original meaning was lost.

My thesis here is a simple one, but an important one for constitutional law. At the Convention, the Federalists won the battle over the Constitution’s text. In the years that followed, however, they lost the battle over what that text means.

The longer article on  which this essay is based is William Michael Treanor, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, 120 Mich. L. Rev. 1 (2021).

(Via Dan Ernst at Legal History Blog.)

Kevin Tobia et al.: Major Questions, Common Sense?Michael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Daniel Walters (Texas A&M University School of Law) & Brian G. Slocum (Florida State University, College of Law) have posted Major Questions, Common Sense? (62 pages) on SSRN.  Here is the abstract:

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual clarity in “high stakes” situations. Both linguistic arguments rely heavily on “common sense” examples from philosophy and everyday situations.

This Article tests whether these examples really are common sense to ordinary Americans. We present the first empirical studies of the central examples offered by advocates of the MQD, and the results undermine the argument that the MQD is a linguistic canon. Even worse for proponents of the MQD, we show that the interpretive arguments used to legitimize the MQD as a linguistic canon threaten both textualism and the Supreme Court’s growing anti-administrative project.

Via Larry Solum at Legal Theory Blog, who says:

Even if you are not particularly interested in the major questions doctrine, I think it will be worth your while to read this paper.  There is a lot going on here--at the cutting edge of legal theory.

Highly recommended.  Important.  Download it while it's hot!

My view is that the MQD is neither a textualist canon nor a linguistic canon.  That doesn't (necessarily) make it illegitimate.

Josh Blackman on Justice Alito's InterviewMichael Ramsey

At Volokh Conspiracy, Josh Blackman: Justice Alito's Interview in the Wall Street Journal.  From the introduction:

... [O]n Friday, the Wall Street Journal published a "weekend interview" with Justice Alito. The Justice spoke with the Journal in early July. In April, Alito also spoke with the Journal for "four hours in two wide-ranging sessions" in his chambers. (I wrote about that interview here.) Perhaps the most significant aspect of the interview is that it happened at all. On the current Court, Justice Alito is the member most likely to talk to the press. And he had a lot to say–including about the SCRET Act, and his colleagues. Here are thirteen highlights.

He really does have 13.  On originalism: 

Eighth, Justice Alito turned to his views on history and originalism.

That demonstrates a central feature of Justice Alito's jurisprudence: its emphasis on historical context. "I think history often tells us what the Constitution means," he says, "or at least it can tell us what the Constitution doesn't mean." His dissent in Obergefell v. Hodges (2015) is a case in point. "It's perfectly clear that nobody in 1868 thought that the 14th Amendment was going to protect the right to same-sex marriage," he says. Before this century, "no society—even those that did not have a moral objection to same-sex conduct, like ancient Greece—had recognized same-sex marriage." The first country to legalize it was the Netherlands, effective in 2001.

Justice Alito has described himself as a pragmatic originalist. In practice, there are probably not that many differences between Justices Alito and Thomas, but in some criminal law cases, where original meaning favors the defendant, Justice Alito may remain skeptical of originalist arguments. Gundy comes to mind. Speaking of Gundy, Justice Alito returned to Justice Gorsuch.

Ninth, Justice Alito addressed Bostock, indirectly at least:

The same attention to history informs Justice Alito's textualism. "I reject the idea that a statute should be interpreted simply by looking up the words in the dictionary and applying that mechanically," he says. Justice Gorsuch did something like that in Bostock v. Clayton County (2020), in which the court held that Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination "because of . . . sex," covers "sexual orientation and gender identity."

Justice Gorsuch reasoned that because sex is essential to the definition of both categories, such discrimination is "because of" sex. But in 1964 homosexuality was subject to widespread disapprobation, and gender identity "hardly existed as a concept, even among professionals in the field," as Justice Alito says. "When it's very clear that the author of the text . . . cannot have meant something, then I don't think we should adopt that interpretation, even if a purely semantic interpretation of the statute would lead you to a different result."

Nathan Chapman: The Case for the Current Free Exercise RegimeMichael Ramsey

Nathan S. Chapman (University of Georgia School of Law) has posted The Case for the Current Free Exercise Regime (Iowa Law Review, Vol. 108, No. 5, 2023) (39 pages) on SSRN.  Here is the abstract:

How the Supreme Court ought to implement the Free Exercise Clause has been one of the most controversial issues in U.S. rights discourse of the past fifty years. In Fulton v. City of Philadelphia, a majority of the justices expressed dissatisfaction with the standard articulated in Employment Division v. Smith, but they could not agree on what ought to replace it. This Essay argues that focusing on whether to overrule Smith is a distraction from the sensitive task of implementing the Free Exercise Clause. This is not because Smith was “right,” but because (1) the history and tradition are both indeterminate about accommodations from generally applicable laws, giving judges a measure of discretion about how to implement the Clause; (2) Smith has always been only one component of a much larger American legal regime with extraordinarily robust free exercise rights; and (3) subsequent cases have rendered the Smith doctrine so malleable that it is now arguably more protective of religious exercise than the pre-Smith regime had ever been.

So the question is not whether to keep Smith but how the Court ought to implement the Clause, consistent with the original understanding, tradition, precedent, and the broader legal protections for religious exercise. This Essay argues that the Court should announce constitutionally mandated accommodations when there is reason to suspect that the political process that would ordinarily have yielded a religious accommodation failed to do so because of a political blind spot or bias. Applied delicately, with an eye toward promoting the American tradition of political, rather than judicial, accommodations, the “most-favored-right” doctrine, for all its conceptual faults, can serve that purpose, especially when coupled with robust, context-specific protections for discrete categories of religious exercise like speech, assembly, association, and ministerial employment.

And from the main part of the article (footnotes omitted):

The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” From the text alone, it is unclear whether the Clause forbids only laws that “prohibit” the exercise of religion as such, meaning, because of the conduct’s religious motivation, or whether it also forbids the application of general laws to religiously motivated conduct. On what does the Clause focus? The nature of the government’s act, in which case it forbids the express or deliberate prohibition of religious exercise? Or the nature of a claimant’s conduct, in which case it forbids any government action that has the effect of prohibiting someone’s religious exercise? The Clause may be read either way.

Justice Alito disagrees. In Fulton, he argued that “the ‘normal and ordinary’ meaning” behind “‘prohibiting the free exercise [of religion]’ . . . is[] forbidding or hindering unrestrained religious practices or worship.” He constructed this meaning by cobbling together selected dictionary definitions of words in the Clause. The result, he argues, requires exemptions. But that is not the case— his paraphrase raises the same ambiguity as the Clause’s text. Which matters, the nature of the government’s action, or the nature of the claimant’s conduct?

To overcome this ambiguity, Alito offers a translation of the Free Exercise Clause, asserting that it provides “the right to [exercise religion] without hindrance.” This reformulates the Clause’s negative (“Congress shall make no law . . .”) as an affirmative right and cleverly puts the emphasis on the private party, not the government. But for this reason, his translation goes well beyond the Clause’s “normal and ordinary meaning.” The Clause says nothing about a right, much less about what Justice Alito calls the right of “a specific group of people (those who wish to engage in the ‘exercise of religion’).” Rather, it forbids the enactment of a certain kind of law, one that “prohibits the free exercise [of religion]”—but the question is what sort of law it forbids.

Contemporaneous evidence from the amendment’s drafting history doesn’t help illuminate the text either. As Professors John Witte, Jr., Joel A. Nichols, and Richard W. Garnett argue, that history may bear either a “thinner reading” that amounts to “Congress may not proscribe religion” or a “thicker reading” that would require accommodations from general laws, both of which are “plausible readings of the place of the freedom of conscience in the First Amendment.” The amendment’s text plainly contemplates the protection of “religious exercise” from a government prohibition, but it does not specify how.

This is basically what Justice Scalia concluded in Smith -- that the claimants had not proved the clause had the broader original meaning.  The question is what to do then.  The article says "the history and tradition are both indeterminate about accommodations from generally applicable laws, giving judges a measure of discretion about how to implement the Clause."  Not all originalists would agree (though I take it that theories of constitutional construction would indicate this conclusion).  An alternative approach is that if the original meaning is truly "indeterminate" (that is, neither reading seems more plausible than the other), then the courts lack authority to override the political branches.  That is how I understand Scalia's conclusion in Smith.  As a result, overruling Smith requires concluding either (a) that the "thick" original meaning is more plausible than the alternative, or (b) that in cases of indeterminate original meaning courts have discretion to overrule the political branches.

Darrell Miller et al.: Technology, Tradition, and "The Terror of the People"Michael Ramsey

Darrell A. H. Miller (Duke University School of Law), Alexandra Filindra (University of Illinois at Chicago - Political Science and Psychology) & Noah Kaplan (University of Illinois at Chicago -  Political Science) have posted Technology, Tradition, and "The Terror of the People" (Notre Dame Law Review, forthcoming) (35 pages) on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy-only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging "historical tradition of firearm regulation" to meet constitutional muster. Some despair that that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically-grounded policy solutions badly misread the opinion. Empirical studies can still inform meaningful gun policy, but the boundaries that make such studies legally significant are now set by Bruen’s text, history, tradition and analogy-only approach.

This article uses an original survey experiment to measure the "chill" caused by public weaponry, and connects those experimental findings to the longstanding tradition of regulating weapons to protect the peace and to prevent "the terror of the people." The article shows that, far from being irrelevant, modern empirical data can help bridge the gap between modern problems and technology and the historical record of gun rights and regulation.

James Heilpern: Acting Cabinet Secretaries & the Twenty-Fifth Amendment [Updated]Michael Ramsey

James Heilpern (Brigham Young University - J. Reuben Clark Law School) has posted Acting Cabinet Secretaries & the Twenty-Fifth Amendment (University of Richmond Law Review, Vol. 57, No. 1169, 2023) (65 pages) on SSRN.  Here is the abstract:

The Twenty-Fifth Amendment of the United States Constitution contains a mechanism that enables the Vice President, with the support of a majority of the Cabinet, to temporarily relieve the President of the powers and duties of the Presidency. The provision has never been invoked, but was actively discussed by multiple Cabinet Secretaries in response to President Trump’s actions on January 6, 2021. News reports indicate that at least two Cabinet Secretaries — Secretary of State Mike Pompeo and Treasury Secretary Steve Mnuchin — tabled these discussions in part due to uncertainties about how to operationalize the Amendment. Specifically, the Secretaries were concerned that the text of the Amendment did not specify whether Acting Cabinet Secretaries (of which there were three at the time) should be included in the vote.

This Article considers that question in light of both the common law and Supreme Court of the United States precedent, concluding that Acting Secretaries should indeed be counted. However, the Article also highlights the political risks caused by the text’s ambiguity and proposes a legislative solution to sidestep the issue.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Fascinating, well-argued, and highly recommended."

Mark Pulliam on NYT v. SullivanMichael Ramsey

At Law & Liberty, Mark Pulliam: Inventing Modern Libel Law (reviewing  Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan by Samantha Barbas).  From the core of the discussion:

Sullivan is celebrated in liberal circles as a landmark Warren Court precedent protecting free speech and taking sides in the struggle for civil rights, but is the decision sound as constitutional law? Many prominent critics, including law professor Richard Epstein, Reynolds, the late D.C. Circuit Judge Laurence Silberman, Justices Clarence Thomas and Neil Gorsuch, and various conservative pundits and scholars, claim that Sullivan conferred on the media an unwarranted immunity from liability for publishing false statements, and accordingly has emboldened the fourth estate to become an increasingly aggressive—and partisan—combatant in the culture war.

The critics make a powerful case. To begin with, Sullivan was not, and did not pretend to be, an originalist decision. Written in 1964 during the heyday of Warren Court activism—the era of the “living Constitution”—Sullivan predated the ascendency of originalism decades later. Sullivan was a radical decision in several respects. It nullified the libel laws of all 50 states, which were in place at the Founding, and for “public officials” replaced the common law of strict liability for defamatory statements—a legal doctrine Barbas describes as “ancient,” whose roots date to the Middle Ages—with a legal standard drawn practically verbatim from the brief filed by the New York Times’ lead appellate lawyer, Columbia law professor Herbert Wechsler (who, ironically, during a WWII stint working for the DOJ, argued the infamous Korematsu decision before the Supreme Court). As Barbas observes, “An area of law that had been left up to the states was nationalized, with a constitutional floor established.”

...

A growing chorus of Sullivan critics, led most prominently by Justice Clarence Thomas, urges that the decision be overturned. The “actual malice” standard has no basis in the original understanding of the First Amendment. Thomas’s powerful concurring opinion in McKee v. Cosby (2019) made the case for overruling Sullivan as an extra-constitutional usurpation of state law that allows reputation-damaging false statements to go unremedied. In 2021, the late Judge Laurence Silberman of the D.C. Circuit wrote a passionate dissenting opinion in Tah v. Global Witness, citing Justice Thomas and urging the Supreme Court to overrule Sullivan, which he cheekily described as “policy-driven decision masquerading as constitutional law.” Thomas, joined separately by Neil Gorsuch, continued his originalist critique of Sullivan in a 2021 dissent from the Court’s denial of certiorari in Berisha v. Lawson.

Andrew Coan & David Schwartz: Interpreting RatificationMichael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) & David S. Schwartz (University of Wisconsin Law School) have posted Interpreting Ratification (1 J. Am. Con. Hist. 449 (2023)) (90 pages) on SSRN.  Here is the abstract:

For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant.

Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism.

All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended".)

Related: from earlier this year, by the same authors: The Original Meaning of Enumerated Powers.

I agree that caution is needed in using The Federalist and that anti-federalist writers should be considered as well.  I'm not sure that's especially controversial in originalist circles, at least in theory, but it may sometimes be overlooked in practice. I'm not persuaded by the authors' challenges to the   idea of limited federal power, which I think is pretty clear from the text.

A Note on Moore v. HarperDavid Weisberg

The Supreme Court’s recent decision in Moore v. Harper, 600 US __ (2023), in an opinion for the 6 to 3 majority by Chief Justice Roberts, rejects on the merits the view that the Elections Clause “insulates state legislatures from review by state courts for compliance with state law.” (Roberts, C.J., slip op., p. 11.)  The Elections Clause (Art. I, Sec. 4, Cl. 1) recites:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Because the Clause specifies that a State’s legislature shall prescribe the relevant regulations, the question arises whether a State’s courts should play any role at all in the regulation-making process.  Contrary to Moore, I think that the plain meaning of the Clause supports a negative answer.

The framers could have proposed an Elections Clause (which I’ll call the “alternate version”) as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in and by each State; ….

The alternate version would have saved several words but, more importantly, it would have made clear that all branches of a State’s government, including its judiciary, could participate in prescribing the regulations.  And this important difference between the actual and the alternate version is underlined by the fact that in the original unamended Constitution, by my count, the “Legislature(s)” of the “State(s)” is (are) referred to exactly eleven (11) times.  In contrast, the “State” or “States,” as political entities—excluding the name “United States” and also references to foreign States—are referred to sixty-four (64) times.  (Space limitations prevent citations for each reference.)

This substantial imbalance is, I think, convincing evidence that the framers did not consider terms like “Legislatures of the States” to be interchangeable or synonymous with “States” (see, e.g., Art. IV, Sec. 3, Cl. 1).  I therefore believe that the burden of proof, so to speak, falls on those who contend that the actual clause, which on its face authorizes only a State’s legislature to prescribe the regulations, nevertheless permits a State’s courts to review those regulations “for compliance with state law.”

The majority opinion in Moore offers two different kinds of support for its conclusion: First, a discussion of the history of judicial review; secondly, an examination of three Court precedents that supposedly support the participation of a State’s courts in the regulation-making process.

Regarding history, the Chief Justice argues convincingly that the practice of a State’s courts striking down laws that are inconsistent with the State’s constitution—i.e., judicial review—was well known in 1789.  I accept that conclusion.  But that history bolsters the argument against judicial review of the regulations prescribed by the State’s legislature.

Again, the framers could have proposed the alternate version of the Elections Clause, and that would have made clear that a State’s courts may participate in the regulation-making process.  The greater the framers’ familiarity with the concept of judicial review, the more reason they would have had to propose the alternate version if they indeed wanted a State’s courts to exercise judicial review over regulations prescribed by the legislature.  But they didn’t propose the alternate version.  Thus, the relevant history strongly suggests that judicial review by a State’s courts should not be part of the regulation-making process mandated by the Elections Clause.

Regarding precedents, the Chief Justice begins with Ohio ex rel. Davis v. Hildebrant, 241 US 565 (1916).  The Ohio legislature drew new congressional districts.  The citizens of Ohio, exercising their right under the Ohio constitution to hold a popular referendum and disapprove legislative enactments, did just that with respect to the new congressional districts.  Ohio’s supreme court subsequently rejected the argument that the Elections Clause necessitated that the referendum results be disregarded.  In the U.S. Supreme Court, that decision was unanimously affirmed.

Chief Justice Roberts cites Hildebrant as one of three precedents that “rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections.”  (Robert, C.J., slip op, 19.)  But, even if state legislatures do not have “exclusive and independent authority,” it does not follow that state courts have a role to play.  And a careful reading of Hildebrandt reveals that that opinion in no way supports any role for state courts.

Chief Justice White’s opinion in Hildebrandt begins with this statement:

By an amendment to the Constitution of Ohio, adopted September 3, 1912, the legislative power was expressly declared to be vested not only in the senate and house of representatives of the state, constituting the General Assembly, but in the people, in whom a right was reserved by way of referendum to approve or disapprove by popular vote any law enacted by the General Assembly.

(241 US 566.)  Thus, Ohio’s constitution “expressly declared” that legislative power is vested in both the people and the legislature.  The Ohio supreme court decision, said Chief Justice White, was “conclusive on that subject.” (241 US 568.)  This is glaringly different from the situation in Moore, because nothing in North Carolina’s constitution vests legislative power in the State’s courts.  Judicial review is of course a judicial power exercised by the judiciary; it is not a legislative power exercised by the judiciary.  Hildebrandt provides no authentic support for the result in Moore.

Chief Justice Roberts next considers Smiley v. Holm, 285 US 355 (1932).  The Minnesota legislature adopted a redistricting plan and sent it to the governor for his approval, but he vetoed it instead.  The secretary of state ignored the veto and began to implement the plan.  A citizen sued to prevent implementation, contending that the veto had nullified the plan.  The State’s supreme court disagreed, finding that the Elections Clause gives the legislature authority that is “unrestricted, unlimited, and absolute.”  The U.S. Supreme Court unanimously reversed.

Chief Justice Roberts says this about Smiley:

A state legislature’s “exercise of . . . authority” under the Elections Clause, we held, “must be in accordance with the method which the State has prescribed for legislative enactments.” Smiley, 285 U. S., at 367. Nowhere in the Federal Constitution could we find “provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.” Id., at 368.

(Roberts, C.J., slip op, 16.) 

It should be clear from the above that Smiley provides no genuine support for Moore, because judicial review is no part the method which any State has prescribed for enacting laws, and that is the activity consistently referenced in Smiley.  Rather, judicial review is a method by which the courts un-enact laws that the legislature has enacted.  Legislatures have the power to make laws; courts have the power to unmake laws.  (I’ve discussed this here.)  A statute or regulation that has never been subject to judicial review is as fully a law as one that has been reviewed and upheld by the courts many times.  Smiley stands only for the proposition that the Elections Clause does not change the method whereby a State’s laws are enacted.  Judicial review is not part of that method in any State in the Union.

The last case heavily relied on in Moore is Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, (2015).  Arizona’s constitution permits voters to amend the constitution by ballot initiative.  Using that method, the voters amended the constitution to cancel the legislature’s power to enact redistricting plans and to vest that power in an independent redistricting commission.  The legislature sued to prevent implementation of the commission’s redistricting plan, and the U.S. Supreme Court, in an opinion by Justice Ginsburg for a 5 to 4 majority, held that Arizona’s reliance on an independent redistricting commission did not violate the Elections Clause.

Justice Ginsburg asserts: “[O]ur precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking[.]” (576 US 808.)  She then goes on to find:

As to the “power that makes laws” in Arizona, initiatives adopted by the voters legislate for the State just as measures passed by the representative body do. See Ariz. Const., Art. IV, pt. 1, § 1 (“The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.”).

(576 US 814.)  Thus, Arizona Legislature is essentially the same kind of case as Hildebrandt:  Both feature state constitutions that explicitly provide that the power to make laws is not exclusively exercised by the legislature, but is also reserved by and vested in the people.  But the power to make laws is not vested in the courts of any State.  Judicial review, again, is a power to unmake, not make, laws.  So, Arizona Legislature does not support Moore.

Any redistricting plan—whether enacted by a State’s legislature (as in Moore), or by referendum (as in Hildebrandt), or by an independent commission created by ballot initiative (as in Arizona Legislature)—must be consistent with the U.S. Constitution and federal law.  And the Elections Clause itself explicitly authorizes Congress to alter any regulations a State’s legislature might prescribe.  So Chief Justice Roberts should have realized that, even if Moore had been decided the other way, no State’s legislature would have “exclusive and independent authority” under the Elections Clause.  Federal law and the U.S. Constitution would continue to be the supreme law of the land.    

If the framers intended that the regulations proposed by a State’s legislature should be subject to judicial review by the State’s courts, why did they not propose the alternate version of the Elections Clause, which would have left no doubt regarding that issue?  The opinion in Moore provides no satisfactory answer to this question, and that’s why I believe it reaches the wrong result.

Judge Neomi Rao: Textualism’s Political MoralityMichael Ramsey

Recently published, in the Case Western Reserve Law Review, the 2022 Sumner Canary Memorial Lecture by Neomi Rao (D.C. Circuit).  From the introduction (footnotes omitted):

... [M]y lecture will explore the political morality that undergirds and informs a textualist approach to statutory interpretation. I will endeavor to explain why formal approaches to legal interpretation, such as textualism, are an outgrowth of political morality and how they carry political morality into practice.

This way of thinking about textualism may seem surprising. After all, textualism is a kind of formalism, and it generally draws a sharp line between the law’s objective meaning and the judge’s moral preferences. Textualists hold fast to the principle that the law is the words enacted by the people’s democratically elected representatives. It follows that in deciding individual cases, judges must give effect to the law as it is, not as they believe it should be. This textualist approach is often juxtaposed with methods of interpretation that rely on the judge’s abstract normative values about justice or fairness or that seek to update statutes in accordance with evolving social or political norms. I am wholeheartedly on the textualist side of these debates.

But the familiar defense of textualism sells it short. This lecture aims to identify the rich moral foundations of a text-based approach to interpreting statutes.

I want to make two basic points. First, I want to defend textualism from the vantage point of political morality. Properly understood, textualism follows naturally from the moral commitments at the heart of our constitutional system of government. Understanding textualism from this perspective is especially timely in light of recent criticisms of formal, text-based methods of interpretation. For instance, a wave of post-liberal scholars, such as
Adrian Vermeule, have suggested that laws should be interpreted to promote the “common good.” They claim textualism is inadequate because it is indifferent to this common good. But this isn’t really a new criticism. Rather, it merely reflects the familiar view that judges should give effect to certain substantive values, values that exist independently of the law. There are many variants of this view, but to name just a few: Ronald Dworkin argued that judges should act as philosophers, promoting justice understood in an abstract way; William Eskridge has argued that statutes must be interpreted dynamically, in light of contemporary social and moral norms; and Judge Posner maintained that judges must interpret statutes pragmatically, to promote efficient outcomes.

In short, although the critics of textualism past and present disagree about the right yardstick, they all argue that judges should interpret statutes in light of principles found outside the law. They maintain that such principles will lead to “better” results than simply following the text.
But textualism isn’t empty of moral content, as some of its critics would suggest. Rather, Textualism is rooted in a distinctive moral commitment—a commitment to be governed by positive laws, namely the Constitution and statutes lawfully enacted by the people’s representatives. We live under the rule of law, not the rule of men. The Constitution is the result of a reasoned moral choice that a society governed by law is best for social flourishing and is therefore worth defending.

My second point is that statutes are enacted within a legal tradition that subsumes political morality. Our mature and sophisticated legal tradition is built on principles of natural law, common law, and concepts rooted in the Roman law. In determining the meaning of a statute, textualists may rightly turn to these legal sources for guidance. Interpreting statutes within our legal context is part of exercising the Article III “judicial Power.” Seen this way, textualists aren’t indifferent to political morality in interpretation; they simply recognize that our legal tradition has translated and disciplined principles of political morality into postulates
of law. A faithful textualist, therefore, must grapple not only with the words on the page, but also with the meaning of those words in the context of our legal traditions.

Those are my two basic points: fidelity to positive law is a profound moral choice, one that Americans made when ratifying the Constitution. And textualism, properly understood, incorporates fundamental principles drawn from our legal customs and foundations. ...

(Via Jonathan Adler at Volokh Conspiracy).

Judicial Power and Judicial Supremacy [Updated]Michael Ramsey

Mark Tushnet and Aaron Belkin have caused a stir with their self-styled open letter to President Biden, advising that

if and when [the Supreme Court] issues rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations.

...

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

Commentary includes this post by Ilya Somin and this post by Howard Wasserman.  Professor Wasserman comments:

Belkin and Tushnet are describing what Kevin Walsh labeled and I have pursued as "judicial departmentalism." The President can and should pursue a constitutional interpretation at odds with the Court's precedent. The Dred Scott reference is the tell. Lincoln argued not that Dred Scott was free or that he could disregard the judgment in that case, but that he could act contrary to the Court's opinion about the rights of enslaved persons or the constitutional validity of the Missouri Compromise.

Assuming the claim is (as Wasserman says) that the President can disregard opinions but not judgments, I think this is probably the right originalist perspective.  At the New Reform Club, Seth Barrett Tillman quotes originalist Michael Stokes Paulsen:

[I]f, with Lincoln, we think this notion of judicial supremacy wrong, then there is nothing wrong with resistance, through all available legal means, to Supreme Court decisions that one in good faith believes improper. The Constitution is not the exclusive province of the Supreme Court. The Court’s decisions are not the Constitution. And neither the Supreme Court nor any other authority properly may declare resistance to judicial decisions to be illegitimate. 

Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1301 (2008).

I would add though that following this course of action is a really bad idea (albeit constitutional), for many of the reasons Professor Somin discusses.  In particular, it's hugely inefficient if the same issue must be relitigated as to every new plaintiff and defendant.  Further, it's easy for the President (or others, such as state authorities) to slip from this position into the claim that they can defy direct court orders.  For this reason we have a longstanding executive practice of following not just the Court's judgment but also its interpretation of the law (while at times seeking to persuade the Court to change its interpretation).  People who doubt the value of this practice should consider how matters might develop under a President with values and temperament very different from their own.

UPDATE:  At Bench Memos, Ed Whelan comments:

I will highlight that, as a critic of what I have labeled the myth of judicial supremacy, I am strongly in agreement with Tushnet on the theoretical point that a president is not constitutionally obligated to accept Supreme Court rulings as final and authoritative determinations of what the Constitution means. As I have argued, the myth of judicial supremacy is flatly contrary to the principle of constitutional supremacy that is the source of the power of judicial review—the power, that is, of courts to review the constitutionality of laws that they are asked to apply. Under a sound departmentalism, the president and Congress should pay due respect to the Court’s constitutional rulings but have their own authority to adhere to their carefully considered interpretations of the Constitution.

Tushnet’s alternative of “Popular Constitutionalism” is very different from a responsible departmentalism. As [Charles] Cooke points out [ed.: here, at NRO], Tushnet, a purported scholar of constitutional law, offers “no comprehensible judicial philosophy” as to what the Constitution means”:

He [Tushnet] provides no rubrics, frameworks, standards, canons, doctrines, or objective arguments of any sort in the course of his proposition. Why not? Because he doesn’t have any.

If I’m understanding the “popular” in “popular constitutionalism” (and perhaps I’m not), Tushnet evidently believes that the people can legitimately alter the meaning of the Constitution by “express[ing] their views at the ballot box” in support of a president who has offered an “alternative interpretation” of the Constitution.

Matt Ford on the Supreme Court's Next TermMichael Ramsey

At The New Republic, Matt Ford: The Big Story of the Supreme Court’s Next Term.  From the introduction: 

The upcoming term’s docket doesn’t have as many high-profile cases [as last year's] at the moment. But in two notable instances, the justices are poised to tackle another conservative legal movement priority: reshaping the relationship between Congress, the executive branch, and the federal regulatory agencies they oversee. Along the way, the justices might also upend the balance of power between the courts and the elected branches of government.

The court has already scheduled one of the cases for oral argument. In early October, the justices will hear arguments in Consumer Financial Protection Bureau v. Community Financial Services Association of America. [Ed.: see here for SCOTUSblog coverage] ... At issue is whether the CFPB’s funding structure is unconstitutional. ...

Most federal agencies are funded by periodic congressional budgetary appropriations. The CFPB is not. Congress established it as part of the Great Recession–era Dodd-Frank reforms to Wall Street to enforce consumer protection laws for banks, mortgage companies, payday lenders, and so forth. Lawmakers accordingly structured the agency more like a financial regulator in order to insulate it from political interference: Congress funded the bureau by setting a capped amount of money it could draw from the Federal Reserve’s revenue each year. Congress still has the power to adjust the cap, do away with it altogether, or make any other changes it wishes to the CFPB’s structure with future legislation.

And from later on, on the historical debate in the CFPB case:

The CFPB, for its part, argued in its brief for the court that Congress has long adopted unusual funding structures for federal agencies. The Constitution itself only requires regular appropriations for the armed forces, it noted, by specifically forbidding any funding “for a longer term than two years.” That restriction reflected the Framers’ fear of standing armies as a threat to liberty, a concern that was itself rooted in their English forefathers’ experiences during the Cromwellian era.

Beyond that narrow prohibition, Congress has long adopted similar funding systems when lawmakers felt it necessary, the CFPB argued. Early Congresses made lump-sum appropriations to the early federal government, leaving it up to the president to fill in the details while setting a cap on what he could spend. Congress has often made standing appropriations that aren’t subject to periodic renewal, most notably for Social Security payments. And it allowed budgeting through indirect sources: Lawmakers in the early republic initially funded the Post Office, the Mint, and the Patent Office through fees for their services, not through regular appropriations.

The payday-lending industry [challenging the CFPB] disputed that historical evidence and the CFPB’s interpretation of it. It argues in its own brief that the CFPB is some sort of unique threat to American liberty, one that requires a narrower interpretation of the Appropriations Clause and an end to more imaginative approaches to building federal agencies. This viewpoint is likely to find a receptive audience in October. ...

On this issue, see this new article by Christine Kexel Chabot.  

Ford continues:

The other case before the court is about who decides when federal agencies can use their powers. In Loper Bright Enterprises v. Raimondo, the court appears ready to overturn or at least seriously narrow the Chevron doctrine. [Ed.: see here for SCOTUSblog coverage]...

A host of conservative judges and legal scholars have over the years strongly disagreed with that approach to judicial power. They often argue that it is the courts’ inherent responsibility to interpret the scope of federal laws. Deference, they claim, is unwarranted when agencies take maximalist approaches to their own legal authority. This view also dovetails with the conservative legal movement’s overall skepticism of what they call “the administrative state,” a somewhat pejorative term for federal agencies that have the power to issue rules and regulations. ...

The fishing company [Loper Bright] lost in the lower courts, prompting it to ask the Supreme Court to intervene. It presented two questions for the justices to resolve. The first asked whether the lower courts had properly applied the Chevron doctrine when interpreting the law in question. The other requested the court overturn Chevron altogether or “at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” When the court agreed to hear the case in May, it only took up the second question, putting Chevron in the firing line.

(Via Real Clear Politics.)

Different Views of the First Justice HarlanMichael Ramsey

Via Jonathan Adler at Volokh Conspiracy, some differing views on the legacy of the first Justice Harlan (whose dissent in Plessy v. Ferguson had an important role in the recent affirmative action cases):

In the New York Times, Jamelle Bouie: No One Can Stop Talking about Justice John Marshall Harlan.

And at Politico, a long response and defense of Harlan by Peter S. Canellos, author of The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero: We Shouldn’t Stop Talking About Justice John Marshall Harlan.

(excerpts from both at the first link above).

In addition to his dissents in Plessy and the Insular Cases, Harlan was a determined advocate of the view that the original meaning of the Fourteenth Amendment incorporated the Bill of Rights against the states.  E.g., Twining v. New Jersey (1908) (Harlan dissenting) (Fifth Amendment self-incrimination); West v. Louisiana (1904) (Harlan dissenting) (Sixth Amendment confrontation clause); Maxwell v. Dow (1900) (Harlan dissenting) (Sixth Amendment unanimous jury); O’Neil v. Vermont (1892) (Harlan dissenting) (Eighth Amendment cruel and unusual punishment); Hurtado v. California (1884) (Harlan dissenting) (Fifth Amendment grand jury).

Further, although Harlan started out focusing on the due process clause as assuring procedural rights such as the grand jury in Hurtado, he later embraced the idea that the privileges or immunities clause incorporated all of the Bill of Rights’ rights (especially, for example, in Maxwell v. Dow).  

My originalist question is: how much does this matter for original meaning?  Harlan wasn't a drafter of the Fourteenth Amendment; his celebrated dissents came long after ratification; and he wasn't able to persuade a majority of the Court (in Plessy, he wasn't able to persuade any Justice).

On the other hand, Harlan (born 1833) was an adult and a politically active lawyer during the ratification debates.  His dissents show, at least, that someone of that era could have the views of the Fourteenth Amendment he did -- that the Constitution is colorblind, that the Bill of Rights applies against the states, etc.  These views, then, are not merely the invention of the modern era, or even of Hugo Black's era. 

I'm not sure, though, that they show any more than that.

James Rogers on Moore v. HarperMichael Ramsey

At Law & Liberty, James R. Rogers (Texas A & M, Political Science): How Independent Can State Legislatures Be?  From the introduction: 

The Supreme Court identified a reasonable outcome in Moore v. Harper (holding that state legislatures do not possess exclusive constitutional authority over redistricting decisions). But the majority opinion is a mishmash of previous precedent and conventional state practice. The Court’s reading of similar language regarding state legislative decision-making powers in different provisions of the U.S. Constitution remains a muddle of inconsistency.

...

In rejecting the [strong version of the independent state legislature approach in Moore], the problem with the majority opinion is not that it reads “legislatures” in Article 1, Section 4 as a synecdoche for full state legislative processes (including executive vetoes and judicial review). After all, the reference to “Congress” in the very same sentence of the Constitution is read naturally as a synecdochical stand-in for the full national-level legislative process.

Rather the problem with the majority’s opinion is one of inconsistent interpretation of similar language across the Constitution. The Supreme Court provided the correct reading of Article 1, Section 4 in this case—or at least the most reasonable reading of this provision. But the majority ties itself into rhetorical knots trying to justify reading the same language differently in other parts of the Constitution.

The irony is that the Court has a long line of precedent in which it has read, and still reads, state-legislative authority in these other, similarly worded parts of the Constitution fully consistent with the most radical versions of independent state legislature theory. As such, the Court’s reasoning in Moore gives lie to so much of the hyperbolic commentary prior to the decision about how novel and radical the “independent state legislature theory” is.

It’s the majority’s attempt to justify its inconsistent reading of the same words in different parts of the Constitution that’s the problem with its opinion....

Professor Calabresi on Moore v. HarperDavid Weisberg

The Court’s recent decision in Moore v. Harper, 600 US __ (2023), holds on the merits (in an opinion by Roberts, C.J., for the 6 to 3 majority) that the Elections Clause (Art. I, Sec. 4, Cl. 1) does not “insulate[ ] state legislatures from review by state courts for compliance with state law.” (Roberts, C.J., slip op., p. 11.)  Prof. Steven Calabresi has written a post celebrating the “superb” majority opinion (noted on this blog here).  I would strongly disagree with that characterization, but here I’ll examine Prof. Calabresi’s post and save my criticism of the Chief Justice’s opinion for another day.

The Elections Clause, in relevant part, recites:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]

Prof. Steven Calabresi asserts that the definition of “legislature” contained in Dr. Johnson’s 1755 dictionary “makes it crystal clear that the Independent State Legislature Doctrine is just plain wrong on originalist grounds.”  With respect, I believe there are two fundamental flaws in his analysis. 

First, his note is a classic example of what I call the Paradox of Originalism, which I’ve discussed many times on this blog (most recently here).  With regard to the word “legislature” and the context in which it appears in the Elections Clause, nothing suggests that that word or context has a meaning today that differs in any way from the meaning in 1789.  If, therefore, the mere antiquity of the Constitution—and not anything about the word “legislature” or the context in which it appears—compels reliance on a dictionary that is roughly contemporaneous with the Constitution to ascertain the meaning of words and phrases in the Elections Clause, then how do we go about ascertaining the meaning of the words and phrases that Dr. Johnson’s dictionary uses to define and provide usage examples for the word “legislature”?  After all, Dr. Johnson’s dictionary is decades older than our Constitution.  So, knowingly or unknowingly, Prof. Calabresi has stepped into an infinite regress, and it’s a long way down.

Putting the Paradox of Originalism entirely aside, there is a second flaw in Prof. Calabresi’s note.  Dr. Johnson defines “legislature” as: “The power that makes laws.”  Prof. Calabresi asserts that the examples of usages cited in Dr. Johnson’s dictionary and the Chief Justice’s opinion in Moore establish that the States’ legislatures “share the power to make laws with governors who in all 50 states have the veto power and with state supreme courts, which in all 50 states have the power of judicial review.”  I think this conclusion is demonstrably incorrect, because there is a fundamental difference between the power to make laws (wielded by legislatures) and both the power to unmake laws (wielded by courts that undertake judicial review of already-enacted laws) and the power to prevent laws from being made (wielded by governors who veto bills that are merely proposed laws). 

The power of judicial review is the power to unmake laws; it is the power to strike down laws that violate some relevant constitution.  Striking down laws is not at all the same thing as making laws.  Consider this: The legislature of a State enacts three statutes.  Subsequently, Statute 1 is reviewed by the State’s supreme court and is upheld as consistent with the State’s constitution; Statute 2 is reviewed by the court and is struck down as inconsistent with the constitution; Statute 3 is never reviewed by the court.

It is indisputable that Statute 3, which was never subject to judicial review, is fully as much the law as is Statute 1, which was reviewed and upheld by the court.  Judicial review played no role whatsoever in making Statute 3 the law.  Moreover, judicial review of Statute 1 did not make Statute 1 a different or somehow ‘stronger’ law than it was before the review; judicial review did not change Statute 1 at all.  Statute 2 is no longer the law after judicial review, but the court did not make law—it unmade law.  In terms of Dr. Johnson’s definition of “legislature,” judicial review is not a power exercised by the legislature, because the legislature is the power that makes laws, while judicial review is a power that either leaves already-enacted laws unchanged, or unmakes already-enacted laws in whole or in part.

I add the last qualifier because, if the provisions of a statute are severable, a court may strike down part of a statute and preserve the rest.  This does change the statute, but it does not amend the statute, which is what a legislature does.  What the court does with a severable statute is to unmake part of the statute; it does not make law by adding to the statute new provisions that it did not formerly contain. 

Finally, Prof. Calabresi makes an analogous mistake with regard to a governor’s veto power, which is a power that prevents laws from being made in the first place.  A governor vetoing a bill is not by any stretch of the imagination exercising a power “to make laws.”  Vetoes in fact prevent bills from actually becoming laws; this is the opposite of making laws.         

New Book: "The People's Justice" by Judge Amul ThaparMichael Ramsey

Recently published, by Judge Amul Thapar (6th Circuit): The People's Justice: Clarence Thomas and the Constitutional Stories that Define Him (Regnery Gateway, June 20, 2023). Here is the book description from Amazon: 

For thirty years, Clarence Thomas has been denounced as the “cruelest justice,” a betrayer of his race, an ideologue, and the enemy of the little guy. In this compelling study of the man and the jurist, Amul Thapar demolishes that caricature.

Every day, Americans go to court. Invoking the Constitution, they fight for their homes, for a better education for their children, and to save their cities from violence. Recounting the stories of a handful of these ordinary Americans whose struggles for justice reached the Supreme Court, Thapar shines new light on the heart and mind of Clarence Thomas.

A woman in debilitating pain whose only effective medication has been taken away by the government, the motherless children of a slain police officer, victims of sexual assault— read their eye-opening stories, stripped of legalese, and decide for yourself whether Thomas’s originalist jurisprudence delivers equal justice under law.

“Finding the right answer,” Justice Thomas has observed, “is often the least difficult problem.” What is needed is “the courage to assert that answer and stand firm in the face of the constant winds of protest and criticism.”

That courage—along with wisdom and compassion—shines out from every page of The People’s Justice. At the heart of this book is the question: Would you want to live in Justice Thomas’s America? After reading these stories, even his critics might be surprised by their answer.

Plus Megyn Kelly says: "Amul Thapar sets the record straight with this can't-put-down series of stories that reveal the courage, decency, and humanity of the man behind what many are calling the Thomas Court."

James Pfander & Rex Alley: Federal Tort Liability after Egbert v. BouleMichael Ramsey

James E. Pfander (Northwestern University School of Law) & Rex Alley (J.D. Northwestern '22) have posted Federal Tort Liability after Egbert v. Boule: A Textual Case for Restoring the Officer Suit at Common Law (57 pages) on SSRN.  Here is the abstract:

Throughout the nineteenth century and much of the twentieth, remedies for federal government misconduct were predicated on rights to sue conferred by such common law forms as trespass, assumpsit, and ejectment. But Erie, merger, and the rise of statutes pushed those common law forms to the side. In 1946, Congress adopted the Federal Tort Claims Act, imposing vicarious liability on the federal government for many of the torts of its officers and employees. Then, in the 1970s, the Supreme Court recognized federal common law rights to sue officers for certain Fourth, Fifth, and Eighth Amendment claims. Individuals seeking redress from the federal government now pursue claims under the Bivens doctrine, the FTCA, or both.

Yet Bivens and the FTCA do not provide assured redress. Thus, in Hernandez v. Mesa (2020), the Court declined to recognize a right to sue under the Bivens doctrine even though all agreed that the FTCA did not apply to injuries the plaintiffs suffered across the border in Mexico. Similar remedial gaps have opened across a wide spectrum of government misconduct: members of the military and other federal agencies cannot recover for sexual assault and harassment on the job and individuals have no effective remedy for torture inflicted at the hands of federal government officials. In Egbert v. Boule (2022), the Court confirmed that the Bivens doctrine, lacking a textual foundation, has no gap-filling growing power.

Channeling the textualism of Egbert, this Article calls for the restoration of common law claims as one important solution to gaps in government accountability. In doing so, we rectify a fundamental error in the way federal courts define the immunity conferred by the FTCA’s Westfall Act. Instead of blocking all common law claims against federal officers that arise from conduct within the “scope of employment,” as the overwhelming weight of authority holds, we show that the FTCA applies more narrowly to claims that implicate the “subject matter” of the FTCA. Reclaiming the “subject matter” limits on the scope of preclusion through a close reading of the statute, we show that the Westfall Act preserves the right of victims to sue individual officers as tortfeasors. The Article concludes by sketching the many ways common law tort litigation can revive the system of government accountability as the sun sets on the Bivens doctrine.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")

T.T. Arvind & Christian Burset on History and the Major Questions DoctrineMichael Ramsey

At Notice & Comment, T.T. Arvind (York) & Christian R. Burset (Notre Dame): “Major Questions” in the Common Law Tradition.  From the introduction:

The Supreme Court’s recent decision in Biden v. Nebraska marks a new chapter in debates about the major questions doctrine (MQD). Writing for a six-Justice majority, Chief Justice Roberts relied partly on the MQD to find that the Biden Administration’s loan forgiveness program lacked statutory authority. Justice Kagan’s dissent criticized the MQD as “made-up” and antidemocratic. And Justice Barrett’s concurrence offered a textualist defense of the MQD as an “interpretive tool.”

All three opinions treat the MQD’s pedigree (or lack thereof) as crucial: Justice Kagan’s most damning charge is that the doctrine is “new.” Scholars have debated the MQD’s history at length, and we won’t try to settle it here. Nor do we opine on whether Biden v. Nebraska was correctly decided. Our goal is more modest: to point out some similarities between the MQD and eighteenth-century approaches to identifying the limits of executive authority. These doctrinal similarities, we suggest, reveal constitutional concerns about executive authority that are deeply embedded in the common law itself. We hope that reflecting on their enduring significance might inform the debate over the MQD today.

Our starting place is Entick v. Carrington (1765), an English case well known to the Founders. ...

And in conclusion:

This is not to say that the MQD can claim Entick as a direct ancestor. But its critics would do well to acknowledge that it reflects a deeply held impulse in common law adjudication, which is far more nuanced than mere animus toward the modern administrative state.

(Via Jonathan Adler at Volokh Conspiracy.)

I particularly like that the essay associates the major questions doctrine with concerns about executive overreach.  As I've commented here a number of times (and as reinforced by Nebraska v. Biden), the doctrine is really about limiting executive power, and people who worry about executive overreach should look on it favorably.

Ronald Cass: Separating Powers in the Administrative StateMichael Ramsey

Ronald A. Cass (C. Boyden Gray Center for the Study of the Administrative State, George Mason
University) has posted Separating Powers in the Administrative State: Understanding Delegation, Discretion, and Deference (82 pages) on SSRN.  Here is the abstract:

Deference doctrines that set the terms for judicial review of administrators’ actions are complicated because concepts critical to deference decisions often are misunderstood. Although generally viewed as free-standing matters, deference questions conceptually are the third part of three related inquiries, preceded by questions of the constitutionally permissible delegation of authority and the discretion granted to specific officials. The scope and nature of lawfully conferred discretion—determined by the first two inquiries—dictate the appropriate scope and nature of deference in judicial review of officials’ actions.

Power—the nature of distinctive powers constitutionally assigned to different government officials to be exercised in different ways—is the key to resolving these issues appropriately. Constitutional design reflects interests in limiting discretionary authority and separating different kinds of authority. Conflating powers granted to executive officials with those of legislative or judicial officials—often done in the characterization of official acts—misleads discussions of deference.

Anchoring analysis in constitutionally separated powers and limited provision for discretionary power and using language that more accurately reflects divisions among tasks given to different government officials provides an avenue for better understanding the three related topics and for unravelling the tangle of deference decisions.

A Scorecard for National Pork Producers Council v. RossDavid Weisberg

In National Pork Producers Council v. Ross, a 5 to 4 majority held that Proposition 12, which prohibits the sale in California of food products derived from pigs that have been “confined in a cruel manner,” does not violate the dormant Commerce Clause.  Justice Gorsuch, writing for the majority, explained:

[T]he Court … [has held] that state laws offend the Commerce Clause when they seek to “build up … domestic commerce” through “burdens upon the industry and business of other States,” regardless of whether Congress has spoken.  Guy v. Baltimore, 100 U.S. 434, 443 (1880).  At the same time, though, the Court reiterated that, absent discrimination, “a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to” the interests of its citizens.  Ibid.

(Gorsuch, J., slip op, 7.)  Thus, Guy effectively announces two rules: 

1. If a State’s law unfairly advantages local commercial interests over out-of-state interests, the dormant Commerce Clause is violated. 

2. If a State determines, “in its judgment, fairly exercised,” that certain products are harmful to its people, it may prohibit the importation or sale of those products without violating the dormant Commerce Clause.

Justice Gorsuch correctly found that Prop 12 does not fall afoul of Rule 1 of Guy, which he characterized as an “anti-discrimination principle that lies at the very core of our dormant Commerce Clause jurisdiction.”  (Gorsuch, J., slip op., 7, internal quotation marks omitted.)  But he entirely failed to recognize that California never made a fair judgment that sales of products derived from pigs raised in cruel confinement harm its people.  Rather, California made a judgment that sales of such products harm pigs, whether bred and raised in California or anywhere else in the world.  

Before the Prop. 12 vote, some proponents did claim that meat from cruelly confined pigs was unfit for human consumption.  Nevertheless, it is indisputable that Prop. 12 is an animal welfare provision, and not a provision dealing with food safety.  Justice Gorsuch himself acknowledges that Prop. 12 is one in a long line of “laws aimed at protecting animal welfare.” (Gorsuch, J., slip op, 2.)  Prop. 12 was enacted with the official name: “Prevention of Cruelty to Farm Animals Act”; it is codified under the title: “Farm Animal Cruelty.”  And, most dispositively, the language of Prop. 12 and subsequent regulations makes no reference whatsoever to nutritional values of pork products; the operative provisions refer only to the dimensions of pig pens.

Prop. 12 could have been drafted to ban ‘unhealthful pork products, including products derived from pigs confined in a cruel manner.’  There then would have been at least a colorable claim that Prop. 12 is a public health provision within the scope of Rule 2 in Guy, and courts could assess whether there is any rational basis for believing that cruel confinement does in fact yield unhealthful food.  But Prop. 12 and its regulations refer generally only to cruelty to animals and specifically to the size of pig-pens, and not to the nutritional qualities of any food.

California obviously may not directly regulate sizes of out-of-state pig pens.  Any such extraterritorial regulation would, I think, deny due process and also violate the Tenth Amendment, which arguably reserves to each State the power to regulate animal welfare—including the size of pig pens—within its borders. 

Last year I blogged that Prop. 12 is an attempt to do indirectly what California cannot properly do directly, and I argued that common sense and Supreme Court precedent both support the principle: “[W]hat cannot be done directly cannot be done indirectly.”  Cummings v. Missouri, 71 US 277, 325 (1867).  Cummings is not cited in any of the opinions in National Pork, nor is it cited in any of the parties’ briefs.  Therefore, National Pork cannot be understood to reject the argument that Prop. 12 is an unconstitutional extraterritorial regulation of out-of-state pig-farmers, in violation of the Cummings rule.

(The petitioners in National Pork did propose an “extraterritoriality doctrine.”  They contended that the Court’s “dormant Commerce Clause cases suggest an … ‘almost per se’ rule forbidding enforcement of state laws that have the ‘practical effect of controlling commerce outside the State,’ even when those laws do not purportedly discriminate against out-of-state economic interests.”  (Gorsuch, J., slip op., 8-9.)  Justice Gorsuch rejected that contention because each precedent petitioners cited “typifies the familiar concern with preventing purposeful discrimination against out-of-state economic interests.”  (Gorsuch, J., slip op., 9.)  Thus, the failed “extraterritoriality doctrine” violated Rule 1 in Guy and was unrelated to the rule in Cummings.)

If you’re keeping score at home, the foregoing discussion yields the following conclusions regarding  National Pork: it correctly holds that Prop. 12 does not violate Rule 1 of Guy; it incorrectly holds that Prop. 12 complies with Rule 2 of Guy; and, finally, it never considers  whether Prop. 12 violates the rule in Cummings.  If I’m correct that Prop. 12 does not comply with Rule 2 of Guy, it remains (contra the holding in National Pork) an open question whether Prop. 12 is or is not constitutional.  My own view is that the rule in Cummings renders Prop. 12 unconstitutional.             

One final note.  Seven weeks after National Pork, the Court decided the much-anticipated and very controversial college affirmative action cases, Students for Fair Admissions v. Harvard , 600 US __ (2023).  In the 6 to 3 majority opinion, Chief Justice Roberts criticized Justice Sotomayor’s dissent in the following terms:

[D]espite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. … “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows[.]” … Cummings v. Missouri, 4 Wall. 277, 325 (1867).  

(Roberts, C.J., slip op., 39-40.)  Although this is dicta, it seemingly confirms that Cummings is not a dead letter.

Adam Serwer in the Atlantic Criticizes Justice Thomas (and indirectly me)Mike Rappaport

In the Atlantic, Adam Serwer has written a screed against an argument made by Justice Thomas in his concurrence in the affirmative action case.  The title of the piece captures its tenor – “The Most Baffling Argument a Supreme Court Justice Has Ever Made.”  In a way, this piece is remarkable – in a short essay, he is able to include both the main mistakes historians make about the Freedmen’s Bureau Acts and some of the principal slanders against modern originalism.  Since much of his piece attacks Thomas arguments that rely upon my scholarship, I shall make an effort to briefly respond to it.

Serwer’s piece basically argues that the history of the Freedmen’s Bureau Acts shows that the Framers of the 14^th Amendment favored race-based benefits.  Sewer actually goes beyond that – he argues the case is so clear that one can infer that Thomas is merely using originalism as a cover so that he can pursue his political goals.  But Sewer is long on political rhetoric and insults, but short on strong arguments or reliable evidence. 

Serwer’s argument is that the Freedmen’s Bureau Acts provided racial preferences for blacks and therefore the Framers of the 14^th Amendment could not have intended to prohibit such preferences. 

Since Serwer purports to be relying upon accurate history, let’s start with some points that should have alerted him to the problems with the evidence he relies upon.  First, Serwer's argument relies in part upon the views of race neutrality and race preferences of the small minority in the House and Senate who opposed the Freedman’s Bureau Acts (and to a significant extent the Civil Rights Act).  So Serwer is relying on people’s views who were combatting legislation intended to prohibit the Black Codes.  Not exactly a reliable source for determining what an Amendment intended to prohibit the Black Codes was intended to do. 

Second, Serwer shows no evidence of having consulted my law review article Originalism and the Colorblind Constitution, upon which Justice Thomas relies.  Yet, the arguments he makes are addressed in the article.   

Let me then move to the substance.  The question is whether the Freedmen’s Bureau Acts were providing race-based benefits or instead benefits based on a nonracial category defined by behavior or circumstances. 

In my article and in Justice Thomas’s dissent, it is argued that the category of freedmen is a category based on circumstances rather than race.  A freedman is a former slave.  So if one was a former slave, one receives the benefits.  If one was never a slave, then one does not receive the benefits, even if one is black.

If Serwer wants to prove his point, he needs to claim that freedmen meant blacks rather than former slaves.  But that is pretty difficult, given that the term “freedmen” pretty clearly indicates someone who used to be a slave and has now been freed.  Serwer quotes a couple of historians to claim otherwise but their arguments miss the point.  For example, Serwer quotes an Eric Foner email stating “Ninety percent of Blacks were slaves in 1860, and everyone knew whom the Freedom Bureau Act was meant to assist.”  But that is not the question.  The question is whether "freedmen" referred to people based on their color or based on circumstances. 

Serwer’s principal argument is that all freedmen were black.  True enough, but irrelevant.  The question is whether "freedmen" was a category that selected people based on race.  It does not.  Not all blacks were freedmen.  Some had been born free.  (And there were no whites, who were former slaves, who were not treated as freedmen.)  The Act identifies a category based on circumstances, not race.

Serwer relies upon arguments that both miss the point and show the opposite of what he intends.  For example, he relies on a brief submitted by Stephen West and other historians.  In the brief, it is argued that the Freedmen’s Bureau Act was intended to protect not merely freedmen, but blacks.  

This is true in a misleading way.  The Freedmen’s Bureau Act was intended to protect blacks.  But not by providing them with benefits, as the provisions involving freedmen did.  Instead, blacks (as opposed to freedmen) were protected by a provision that prohibited racial discrimination.  The Second Freedmen’s Bureau Act provided

That in every State or district where the ordinary course of judicial proceedings has been interrupted . . . by the rebellion . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all those citizens of such State or district without respect to race or color, or previous condition of slavery. 

So yes, the Second Freedmen’s Bureau Act was intended to protect blacks – by prohibiting racial discrimination.  How that can be used to suggest that the Act supported race-based preferences is a puzzle. 

In the end, Serwer’s argument is pretty weak.  To be honest, there are harder statutes for Justice Thomas and me to explain than the Freedmen’s Bureau Acts – statutes I address in my article.  Serwer’s argument was intended to show that Justice Thomas was incompetent and result oriented.  But it is not Justice Thomas against whom one can make that charge.