The Originalism Blog

Brian Leiter: Realism About PrecedentMichael Ramsey

Brian Leiter (University of Chicago Law School) has posted Realism About Precedent (forthcoming in T. Endicott, H. Kristjansson, & S. Lewis (eds.), Philosophical Foundations of Precedent (Oxford University Press)) (16 pages) on SSRN.  Here is the abstract:

In jurisdictions with a doctrine of precedent, later courts are bound only by those earlier decisions which are “on point” or “the same in relevant respects” to the case currently before the court. Since cases are never identical in all particulars, this always requires figuring out which general categories that subsume the particulars of different cases are the relevant ones: I will call this “relevant similarity” in what follows. Relevant similarity is typically assessed in light of either the reasons the earlier court actually gave for the decision or the reasons that can be imputed to the earlier court based on the legal decision that court reached. Realists about precedent—from Karl Llewellyn to Julius Stone to this author—are skeptical that precedent really binds courts. Realists are skeptical not because they believe judges improperly disregard binding precedents; the worry, rather, is that judges can often properly distinguish precedents that might impede the decision they want to reach on moral or political grounds. They can do so precisely because judgments of “relevant similarity” that are central to distinguishing are largely unconstrained by law. First, such judgments depend on inchoate and sometimes unconscious norms that govern general classifications of particulars, about which reasonable people can and do differ, and about which the law is mostly silent. Second, given the range of permissible characterizations of the earlier court’s reasons in many instances, the requirement that the judgment of relevant similarity or difference be consistent with those reasons imposes only a limited constraint on the general classification employed.

Agreed.  This is why the idea of logical reasoning from precedent as an alternative to the originalism/living constitutionalism dilemma is a false alternative.  Logical reasoning from precedent, in any reasonably contested case, is (overtly or covertly) dependent on moral intuitions about what Professor Leiter calls "relative similarity."  See also my discussion here.

(Via Brian Leiter's Law School Reports.)

David Gans: Reproductive OriginalismMichael Ramsey

David Gans (Constitutional Accountability Center) has posted Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion (SMU Law Review Forum (forthcoming 2022)) (18 pages) on SSRN.  Here is the abstract:

The conventional wisdom among conservative originalists is that the right to abortion has no basis in the Constitution’s text and history. This Essay demonstrates that this originalist attack on Roe v. Wade and nearly a half-century of Supreme Court precedent is wrong. The text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, establish a family, and reproductive liberty. The right to abortion flows logically from these fundamental rights that the Fourteenth Amendment was written to protect. The Supreme Court should recognize this when it decides this Term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning abortions after fifteen weeks of pregnancy.

Mark Pulliam on George Thomas on OriginalismMichael Ramsey

At Law & Liberty, Mark Pulliam: Does the Written Constitution Matter? (reviewing [unfavorably] The (Un)Written Constitution (Oxford University Press 2021) by George Thomas).  From the introduction:

Claremont McKenna College professor George Thomas, in his compact monograph The (Un)Written Constitution (2021), tries to turn back the clock to the halcyon days of freewheeling judicial activism. Clocking in at a mere 147 pages of text, Thomas purports to deconstruct the central claims of originalism and to debunk its chief proponent, the late Justice Antonin Scalia. (Inexplicably, Robert Bork merits a single mention.) This is an ambitious goal for a book containing five slim chapters. Does he succeed? In a word, no.  

Thomas begins by adducing—in aha! fashion—examples of the obvious: the Constitution (like all texts) is not self-executing; not all language in the Constitution has a self-evident literal meaning (“the text does not explain itself”); Justices and scholars have interpreted the Constitution differently throughout history, sometimes in a dubious manner; even those scholars purporting to be originalists often disagree regarding constitutional interpretation in particular contexts; some critics (citing Jonathan Gienapp and Eric Segall in particular) are skeptical of the claims of originalism; Justices from prior eras exhibited beliefs and attitudes in their opinions that may strike the modern sensibility as unfashionable or unenlightened; originalism, at least as espoused by Scalia in his dissenting opinions, would deny certain groups political gains granted by the Court (e.g., Obergefell v. Hodges) which progressive thinkers now take for granted, etc.

His conclusion: It is impossible to make sense of the Constitution by looking only at the words on the page....

And from the conclusion:

Thomas is correct that most of the disputes among Justices and constitutional scholars are ultimately based on differing “political theories”; “these unwritten ideas drive our most persistent constitutional debates.” This admission inadvertently reveals the weakness of Thomas’s entire thesis. If so many readings of the “unwritten Constitution” are possible, doesn’t this prove the wisdom of unelected judges exercising restraint, and leaving policymaking to the elected branches? Thomas never squarely addresses this question. Content with the Court’s modern role as “Platonic Guardians,” as described by Judge Learned Hand in the 1958 Oliver Wendell Holmes Lectures, Thomas argues that judicial lawmaking is not just “legitimate,” it is “essential.” He concludes: “We are always going to have to make judgments about how best to apply the Constitution to our current circumstances and those judgments will always be subject to debate.” This is a trite tautology, not a reasoned argument.

Unlike Akhil Reed Amar’s similarly-titled 2012 book, The (Un)Written Constitution is superficial, derivative, and entirely predictable. At most, it is suitable for stimulating one side of a discussion in an undergraduate seminar, as a counterpoint to Bork’s The Tempting of America (1990), Greg Weiner’s The Political Constitution (2019), or a similar brief for judicial restraint. ...

There's an important point here about nonoriginalist scholarship that's worth further highlighting.  Often nonoriginalists seem to think that debunking originalism makes the case for nonoriginalist judging.  As the review says, it does not.  If the Constitution's original meaning is systematically indeterminate, a natural conclusion is that judges should refrain from constitutional adjudication.  (This is Eric Segall's position, for the most part.)  It takes an additional argument to say that if the Constitution's original meaning is indeterminate, judges should supply a meaning of their own choosing.

Pence is Right, Eastman Might Be Right, and Trump is WrongMichael Ramsey

Regarding the recent exchange between former Vice President Pence and former President Trump on the Vice President's powers: the Constitution's text, given its most plausible reading, resolves many questions (though not all of them).  On this matter, Pence seems clearly in the right.

The question is whether the Vice President has power to disregard electoral votes which he thinks are invalid.  Nothing in the Constitution's text gives him this power.  (I'm leaving aside the complex and constitutionally suspect Electoral Count Act, though I think nothing there purports to give him that power either.)

The Twelfth Amendment says:

[T]hey [the Electors in each state] shall sign and certify [the lists of persons receiving votes for President and Vice President], and transmit [the lists] sealed to the seat of Government of the United States, directed to the President of the Senate [i.e., the Vice President; -- The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted; ...

That's all the Amendment (or anything else in the Constitution's text) says about the Vice President's power relating to electoral votes.  It says nothing about a power  to disregard allegedly defective votes.

Even assuming this language means that the Vice President counts the electoral votes (which it doesn't say, but might be read to imply), counting is manifestly different from deciding on validity.  Counting is a ministerial task.  Deciding on validity is an exercise of discretion and judgment.  One does not imply the other.

Moreover, there are obvious problems with making the Vice President the judge of disputed electoral votes.  The Vice President may have a enormous conflict of interest (as Pence did in 2020, and Vice President Harris may in 2024).  Even in the Framers' pre-party-system politics, the risk of conflict of interest should have been apparent.  That's not a reason to read a power out of the Constitution that's clearly stated, but it is a reason to avoid a strained reading of what the text says.

From media accounts, I'm not sure what Trump's legal argument is, but I have a hard time seeing any way to overcome the text.  The power he asserts for the Vice President simply isn't there, and there's no grounds for implying it.  Sometimes, the text provides answers. (See also here on  a different power of the Vice President).

The Amendment does have a serious defect, though, as we found out in 1876.  What happens if two sets of electoral votes are submitted for a state?  This brings me to John Eastman's (in)famous memo to then-President Trump in January 2020.  My understanding is that Professor Eastman made a very limited claim: that if two sets of electoral votes were submitted for a state, the Vice President could refuse to count either of them.

This might be right, although I'm not sure of it.  Assume that the Amendment does give the Vice President the power to count the votes (as well as just opening the envelopes).  Obviously when confronted with two sets of votes from the same state, he must do something aside from merely counting; he can't count both sets, so either he has to decide which to count (a questionable enterprise, for the conflict of interest reasons noted above), or he has to decline to count either.  The Eastman memo says (on constitutional grounds) he should take the second option.

Whether or not that's right, it has nothing to do with what actually happened, because no competing sets of votes were transmitted.  Thus, to the extent Trump is relying on Eastman's advice, his reliance is misplaced: Trump is wrong even if Eastman is right.

RELATED: For a fun-to-read assessment of the Constitution and the Electoral Count Act (that I don't entirely agree with), see here from Gary Lawson and Jack Beermann.

ANDREW HYMAN ADDS: In 2004, Bruce Ackerman and David Fontana investigated the electoral vote counts for the elections of 1796 and 1800 and found that the vice-presidents at that time (Adams and Jefferson respectively) may not have performed their counts in an exactly ministerial manner.  But it was a lot more ministerial than what President Trump was hoping Vice-President Pence would do.  See Thomas Jefferson Counts Himself into the Presidency.  I generally agree that Pence did the right thing, absent any state sending competing slates of electors, or any official request by a state to do anything other than what Pence did.  Pence did not have a lot of room to legally do anything else.

A Comment on John Vlahoplus on Ratification of the Equal Rights Amendment [Updated with a Response]David Weisberg

This is a comment on the post of John Vlahoplus, “Ratification of the Equal Rights Amendment:  A Reply to Opponents.”  He notes that Article V recites that amendments shall be valid

“when ratified by . . . three fourths of the several States,” not “when ratified and not rescinded” by them.  A state can no more rescind its ratification than separately condition it on the three quarters threshold being reached by a deadline of the state’s own choosing…[S]tate rescissions are ineffective.

I think a ratification can effectively be rescinded, for the following reason.

Article II, Section 2, Clause 2 gives the President the power to make treaties, with the approval of two-thirds of the Senate.  Suppose the Senate votes on a treaty, and it fails of two-thirds approval by one vote.  Sometime later, with all the same Senators present, it is voted on again.  Again, it fails by one vote, but one of the Senators who voted “yea” the first time votes “nay” the second time, and one of the Senators who voted “nay” the first time votes “yea” the second time.  Could that new “yea” on the second vote be added to all the “yeas” on the first vote to create the necessary two-thirds concurrence?  After all, the relevant language is: “provided two thirds of the Senators present concur”; it is not: “provided two thirds of the Senators present concur in a single roll-call vote”.

The Framers were fully familiar with two very different phenomena: sometimes an individual legislator changes his or her mind, and sometimes a legislature changes its collective mind.  It is now and was then a commonplace that, if an individual legislator votes, e.g., "nay" and then changes his or her mind and votes "yea" on the same question on a second roll call, the "yea" on the second roll-call does not change the fact that, on the first roll-call, the legislator voted "nay".  The legislator is now a "yea" even though previously an "nay", but the "yea" on the second roll call does not erase the "nay" that was recorded on the first roll call.

It is and was a similar commonplace that legislatures as a whole may actually cancel or erase actions they have previously taken.  Statutes are repealed routinely.  The repeal of a statute (unlike a legislator’s different second vote) does effectively erase from the law books the legislature's previous act of enacting the statute.  It is true that Article V does not say: “when ratified and not rescinded.”  But what is much more important is that Article V does not contain any language prohibiting a state legislature from rescinding its ratification.   This is more important because the Framers certainly understood that legislatures routinely reverse themselves by repealing statutes, with the effect of erasing those statutes from the books.   So, if the Framers wanted to prohibit a state legislature from rescinding its ratification, one would expect that Article V would explicitly prohibit such a rescission.

I think the most reasonable understanding of Article V is that three-fourths of the state legislatures would all have to ratify a proposed amendment contemporaneously, and that rescission by any state legislature, before the three-fourths margin had been attained, would effectively cancel that state’s ratification.  It makes no more sense to put in the “ratification” column a state whose legislature has explicitly rescinded that ratification than it does to add votes from different roll calls together to attain a super-majority.  

JOHN VLAHOPLUS RESPONDS:  May Congress rescind its proposal of an amendment just before three quarters of the states have ratified?  Congress can also repeal its own statutes.  Or does "propose" simply mean "propose," with no take backs, and "ratified" simply mean "ratified," with no take backs?  The best interpretation of Article V may be that ratifications should be contemporaneous.  But is that the "original meaning" of the article?  No proposed amendment included a time limit until 1917.  The arguments against recognizing the ratification of the Equal Rights Amendment may be correct, but neither text nor history makes them so.

Adrian Vermeule on Common Good ConstitutionalismMichael Ramsey

In the New York Times, Adrian Vermeule: Supreme Court Justices Have Forgotten What the Law Is For.  From the introduction:

The great promise of our legal system as understood by many modern theorists — that law can create a framework to reconcile plural interests in a diverse society — has manifestly failed. Instead the law has become ever more politically contested and bitterly divisive; the tolerance celebrated by the proponents of liberalism appears to be more science fiction than fact. Something has gone badly wrong: It is unclear, in America in 2022, what the point of the law is, what higher ends it should strive to attain. We have forgotten what law is for.

Today’s reigning theories of law are exhausted. On one side, legal progressivism shamelessly instrumentalizes the law in the service of a particular vision of social justice centered on identity politics and libertine social and sexual mores. This relentless crusade undermines the family, traditional morality and the well-being of the citizenry — especially those who lack the resources to buffer themselves against societal disintegration.

On the other side, originalism, which pretends to separate law from justice, rests on an invented tradition that has projected itself back into the past. As the historian Jonathan Gienapp puts it, originalists’ understanding of the Constitution is “anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century.” Supposedly originalist judges constantly appeal, explicitly or implicitly, to a contemporary view of justice to fix the meaning of general or abstract texts (like “due process of law” or “freedom of speech”) or otherwise to resolve hard cases.

And from later on:

What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.

The common good is no abstract idea; its absence is keenly felt today. In the past few decades, Americans have discovered that individuals and families cannot flourish if the whole community is fundamentally unhealthy, torn apart by conflict, lawlessness, poverty, pollution, sickness, and despair. Gated residences, private schools and Uber have not sufficed to immunize even the affluent against the consequences of living in a decaying, fractured and embittered polity. No family or civic association is an island, and the health of civic society and culture are themselves dependent upon the health of the constitutional order.

A note accompanying the essay says the Professor Vermeule has a forthcoming book called "Common Good Constitutionalism."  I look forward to reading it, because so far I confess that I am entirely unable to understand how his program is anything other than "courts should rule in accordance with my moral intuitions because that's best for everyone."  For example, in a part of the New York Times essay not quoted above, he complains about Justice Gorsuch's opinion in the Bostock case.  But I don't see that common good constitutionalism explains how Bostock should have been decided (though I bet if I knew what his moral position on private sexual orientation discrimination is, I would know how he thinks it should have been decided).  And, though I agree on the need to improve the health of the constitutional order, I don't see how a jurisprudence of common good is going to provide a remedy where there is no agreement on what constitutes the common good.

Though I have no easy solutions to the health of the constitutional order, I would guess that empowering judges to aggressively pursue the common good (as they see it) is not the solution.  Instead, I might suggest (1) judges undertake to say what the law is rather than what it should be, and (2) when judges are unsure what the law is, they stay out of it.

(Thanks to Andrew Hyman for the pointer and for his thoughts on the common good constitutionalism project.)

Jason Mazzone & Cem Tecimer: InterconstitutionalismMichael Ramsey

Jason Mazzone (University of Illinois College of Law) & Cem Tecimer (S.J.D. candidate, Harvard Law School) have posted Interconstitutionalism (74 pages) on SSRN.  Here is the abstract:

New constitutions aim to break from the past, but they rarely accomplish that goal. Instead, predecessor constitutions routinely impact how any new constitution is interpreted and applied. Past constitutions linger and hold influence—even when the new constitution is the product of revolution, civil war, or overthrow of oppressive rule. To explore this phenomenon, we take up a prevalent yet under-studied practice of constitutional interpretation that we call interconstitutionalism. By interconstitutionalism we mean the use of a polity’s antecedent constitution to generate meaning for that same polity’s current constitution. Courts and other interpreters regularly engage in interconstitutionalism, thereby keeping alive and influential the seemingly dead constitutions of the past. Interpretations of the U.S. Constitution regularly make use of the Articles of Confederation; state constitutional interpretation regularly involves comparison to and contrast with the state’s predecessor constitutions; and in foreign countries, too, past constitutions play a starring role in making sense of the nation’s current governing charter. The Article examines the multiple, and often surprising, dimensions of interconstitutional interpretive practices, drawing on examples from federal and state courts and also from courts abroad. Understanding interconstitutionalist practices informs and challenges existing accounts of constitutional interpretation and adjudication. It also sheds light on the very nature of constitutional governance. A core commitment of modern constitutionalism is self-rule: government by the people. But interconstitutionalist practices challenge the very possibility of constitutions as self-governing charters. Interconstitutionalism means that past constitutions, those written and adopted by other people, for another political system, and now superseded, continue to hold sway. And yet, as the Article concludes, interconstitutionalism shows a path forward for meaningful popular sovereignty and a basis for securing constitutional legitimacy.

An earlier version of this paper was presented at the University of San Diego's 12th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference last February.

The Tie-Breaking Vice-President (Revisited)Michael Ramsey

Back in 2020, when Republican had a narrow majority in the Senate, there was talk about whether the Vice President could break a tie on a Supreme Court nomination if the Senators were equally divided.  Now that the issue is more immediate with a 50-50 Senate, here's a quick revisiting of the issue.

In this essay, Professor Laurence Tribe argued, largely on originalist grounds, that the Vice President's tiebreaking power extends only to legislation, not to appointments.  In a point-by-point response, I found his arguments unpersuasive, concluding:

In sum, it's an interesting and worthwhile argument, but I think it fails to overcome the simple text.  Article I, Section 3 says that the Vice President, as President of the Senate, "shall have no Vote, unless they [the Senators] be equally divided."  It does not say that the Vice President has this voting power only as to Article I matters.  Rather, the Vice President has this voting power  whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates -- not just as to powers in Article I, but generally.  Professor Tribe's contrary arguments aren't nothing (from an originalist perspective), but they aren't enough.

(Other originalist scholars at the time agreed, see Mike Rappaport here (calling it a "peculiar argument") and John McGinnis here.)

On re-reading, I am (with all due modesty of course) even more convinced that I'm right.  The text does not even hint at the distinction Professor Tribe proposes.  He cites various originalist sources purportedly in support (which I examined in my response linked above) -- but the short of it is that no one in the founding generation made anything close to Professor Tribe's distinction.  Nor, so far as I can tell, does he have any meaningful post-ratification practice on his side.  It may be true that no early Vice President ever broke a tie on an appointments matter (though I'm not sure about that), but that proves little unless the issue actually came up.  That is, we would need to see a situation where an early Vice President had an opportunity to break a tie on an appointments matter and the Vice President refused on constitutional grounds, or at least someone objected on constitutional grounds.  I'm pretty sure nothing like that ever happened (Professor Tribe doesn't claim it did).

In sum, I think there's no plausible originalist argument against vice-presidential tiebreaking on appointments.  I wonder about a living constitutionalist approach, though.  The Vice President has a very different character now from the Constitution's original design, thanks to the Twelfth Amendment and the development of the party system.  In the original design, the Vice President was the runner-up in the presidential election, and so presumably a rival of the President (as Jefferson was to Adams).  At minimum, the Vice President was not an automatic vote for the President's nominee.  Now, however, the Vice President is part of the President' team.  Giving the Vice President a tiebreaking vote amounts to giving the President a tiebreaking vote.  That's a lot more power for the President than the framers envisioned, and perhaps (depending on one's view) more than we want.  Shouldn't the situation be reevaluated in light of modern circumstances?  I'm unsure how a living constitutionalist deals with that argument.

RELATED: Dan McLaughlin at NRO, Yes, Kamala Harris Can Break a Senate Tie on Biden’s Supreme Court Pick (relying on textual and historical grounds, and also reporting that Professor Tribe is [sort of] sticking with his position).

A FURTHER THOUGHT:  People say that originalism can't resolve modern controversies, or that it's no more than a cover for Republican party policy preferences.  This strikes me a (yet another) important counterexample.

Eric Segall Responds to John McGinnis on the Vaccine Mandate CaseMichael Ramsey

At Dorf on Law, Eric Segall:  Libertarianism as Constitutional Interpretation.  From the introduction:

Last week on the Law & Liberty Blog, Professor John McGinnis, a self-identified textualist-originalist, wrote a love letter to the Supreme Court about its decision in NFIB v. OSHA, which invalidated OSHA's COVID vaccination rules[,] and to one of the most important constitutional law cases in history Youngstown Tube & Sheet Co. v. Sawyer. In that case, the Supreme Court held that President Harry Truman could not seize the steel mills during the Korean War when a nationwide strike closed down the steel industry. The OSHA case is an administrative law case, whereas Youngstown is a constitutional one but the two decisions have one thing in common that McGinnis likes--courts striking down federal government actions during emergencies.

The title of McGinnis's post was "Jabbing the Administrative State." He wrote that the OSHA case may be "critically important" to the future of administrative law ...

McGinnis gives the game away by being so delighted about the Court cabining the "awesome authority of the administrative state to make impositions on our liberty." Others might believe that the OSHA regulations requiring employers with more than 100 employees to either have them vaccinated or masked/tested was an important step to protect the American people from a terrible pandemic--a step courts should not second guess...

And in conclusion:

... There is nothing in the Constitution, or its original meaning, suggesting that Congress's authority to delegate "major powers," to federal agencies, whatever that even means, [is limited by the Constitution]. It is certainly true that federal agencies can only issue rules consistent with Congressional delegations. But as Professors Julian Mortenson and Nicholas Bagley have demonstrated in a lengthy and important law review article, at the Founding, Congress gave federal agencies broad powers to make all kinds of important decisions. McGinnis, of course, does not address any of that history.

As a policy matter, Congress cannot legislate in detail and must rely, and has always relied, on federal agencies to carry out its broad ideals. We all want less pollution, but the changing nature of environmental threats--from climate change to the numerous causes of dirty air and water--are not issues Congress can stay on top of on a regular basis. So it delegates to experts, within parameters, sometimes quite broad, sometimes more narrow, the day-to-day responsibility of figuring out the best ways to fight environmental dangers. In a country of our size, with 50 states, and over 330 million people, there is no other way. Unless of course one believes, as do McGinnis and the Republican Party, that regulations in general are bad and that a free market is always or almost always, the best answer. But that choice has nothing to do with originalism or textualism. It is a naked policy preference. It is libertarianism as constitutional interpretation.

Perhaps, and it is certainly worth considering whether the Court's emerging "major powers" doctrine has appropriate originalist foundations.  But I think the intuition to distrust claims of vast open-ended delegation is more than a naked policy preference.  The framers weren't libertarians, but they were deeply concerned about unchecked lawmaking and about uniting executive and legislative power.  Thus they prescribed that only Congress would have lawmaking power (Art. 1, Sec. 1) and that Congress could only act by majorities in two distinct and separately elected chambers (Art. 1, Sec. 7) -- so that lawmaking would depend on a consensus of multiple people and institutions.  Modern delegations flout both limitations, at least in spirit.  When Congress shifts "major powers" of policymaking to executive agencies, it effectively places lawmaking power in the President.  Lawmaking thus is not separated from law execution and is not dependent on the deliberative consensus of elected representatives.

That's not to say, necessarily, that congressional delegation of "major powers" is unconstitutional.  Perhaps the Constitution does allow this end run of Article 1, Sections 1 and 7 -- either because the framers weren't worried about it or because they didn't think about it.  But the originalist presumption, I would say, is to the contrary until proven otherwise, not because of a non-originalist libertarianism but because of concerns that were central to the framers' design.

Ratification of the Equal Rights Amendment: A Reply to OpponentsJohn Vlahoplus

Art. I, § 2 of the Constitution provides that “[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”  In 1837, two state governors issued writs for special elections to fill vacancies in their House representation for a limited time period.  In deciding to seat the winners, the House voted almost unanimously that the purported time limits were unconstitutional.  As Rep. Legaré explained in part, the Constitution’s text gives the governor the power only “to issue a writ to fill a vacancy, without any limitation or condition.” 

In addition, almost all of the Representatives agreed that the House should disregard the purported limits as surplusage rather than invalidate the writs.  Rep. Legaré explained that “every analogy of law” and “every presumption of common sense” commands that the constitutionally issued writs be respected and the limits disregarded.  Rep. Haynes considered it a “waste of words” even to discuss the issue because the unconstitutional limits could not override “the full and free expression” of a state’s public will.  Contrary to Professor Michael Rappaport’s assertions here, both common sense and precedent support applying the severability doctrine to actions taken under the Constitution, even absent a severability clause in their texts.

Art. I, § 2 provides that the executive “shall issue Writs of Election.”  Art. V provides that Congress “shall propose Amendments.” Reading the texts consistently, the Constitution gives Congress only the power to propose amendments without limitations or conditions—Congress cannot limit a state’s power to consider the proposals fully and freely.  Reading the Art. V ratification text consistently, amendments are effective “when ratified by . . . three fourths of the several States,” not “when ratified and not rescinded” by them.  A state can no more rescind its ratification than separately condition it on the three quarters threshold being reached by a deadline of the state’s own choosing.  The time limit for ratifying the ERA is unconstitutional surplusage, and state rescissions are ineffective.  The Equal Rights Amendment is part of the Constitution—or not, if you agree with the plausible contrary interpretations of Andrew Hyman here, Professor Michael Ramsey here, or Professor Rappaport.

The debate illustrates interpretive problems from impliciture.  As Professor Lawrence Solum explains here at 1984–85, some texts may implicitly include closely related things.  For example, “You will get promoted if you work hard” may implicitly include the bracketed phrase “You will get promoted if [and only if] you work hard.”  However, there are many potential implicitures.  If one emphasizes “You,” the impliciture might be that you will be promoted if you work hard, but others—such as the employer’s relatives—will be promoted even if they do not.

Was Rep. Legaré correct to include the bracketed impliciture “the Executive Authority . . . shall [without limitation or condition] issue Writs of Election”?  Is it right to reject the bracketed impliciture “when ratified [and not rescinded] by . . . three fourths of the several States”?  The written words cannot answer the question, and underlying political principles might point to different answers.  May small states condition their ratifications on the most populous states also ratifying, to ensure approval of a supermajority of the people in addition to a supermajority of the states?  Should states be free to take their time to fully consider proposed amendments?  Or is a time limit appropriate to ensure a contemporaneous supermajority?  Should a state be able to rely on prior ratifications when determining whether to take the time to consider its own ratification decision?  Or should states be free to reconsider their ratifications as political winds change?  The text does not answer any of these questions.  Indeed, many Representatives voted to seat (or not to seat) the winners of the 1837 special elections on a variety of different rationales, as described here and posted here (from which much of the above discussion is drawn).  Those elections and the ratification of the Equal Rights Amendment illustrate yet again the indeterminacy of non-normative textualism in constitutional interpretation.

There Is Something That Our Constitution Just IsChris Green

I have posted my contribution with Evan Bernick to the upcoming Originalism Works-In-Progress Conference, There Is Something That Our Constitution Just Is (44 pages), to SSRN. Here is our abstract:

Historian Jonathan Gienapp has launched a collection of widely celebrated attacks on originalism. He charges originalists with culpable neglect of the legal and political context in which the Constitution was framed and claims that the idea of a written Constitution was not prevalent in 1787 or 1788. Indeed, he goes so far as to call it a “myth.”

This Essay critiques Gienapp’s arguments, contending that he is perpetuating myths of his own. It is not true that originalists haven’t seriously investigated what sort of thing the Constitution is. It is not true that there was widespread, fundamental disagreement during the Founding era concerning just what the Constitution was. Finally, it is not true that the idea of a written Constitution emerged only after ratification.

Gienapp does raise important questions about how constitutional theory should address morality, present-day customs, and history. We begin to answer them by investigating officeholders’ promises to obey “this Constitution,” and then propose a research program dedicated to determining what people today think that that the Constitution is and how it binds public officials. We hope that this program will yield insight into contemporary understandings of constitutional obligation, which Gienapp neglects almost entirely.

Comments welcome!

Seth Barrett Tillman & Josh Blackman: Offices and Officers of the Constitution, Part IIMichael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth) & Josh Blackman (South Texas College of Law Houston) have posted Offices and Officers of the Constitution, Part II: The Four Approaches (South Texas Law Review, Vol. 61, No. 321, 2021) (109 pages) on SSRN.  Here is the abstract:

This Article is the second installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. In this second installment, we will identify four approaches to understand the Constitution’s divergent “office”- and “officer”-language.

First, under Approach #1, the Intermediate View, the Constitution’s references to “offices” and “officers” extend exclusively to positions in the Judicial Branch and in the Executive Branch—whether appointed or elected. But the Constitution’s references to “offices” and “officers” do not extend to positions in the Legislative Branch—whether appointed or elected.

Second, under Approach #2, the Maximalist View, the Constitution’s divergent “office”- and “officer”-language is used synonymously. And, under this approach, these phrases refer to positions in all three branches, whether appointed or elected.

Third, under Approach #3, the Minimalist View, the Constitution’s divergent “office”- and “officer”-language has different meanings. The phrase “Officers of the United States” extends exclusively to appointed positions in the Executive and Judicial Branches. And the phrase “Office . . . under the United States” extends exclusively to appointed positions in all three branches. (The ellipses refer to different words the Framers placed after office but before under: “profit,” “trust,” and/or “honor”). For more than a decade, Tillman has advanced Approach #3. Blackman was first piqued by Tillman’s position shortly after he became a law professor, and he was thereafter persuaded.

Finally, we consider Approach #4, which we refer to as the Clause-Bound View. Under this approach, the “office”- and “officer”-language in each provision of the Constitution should be interpreted in isolation, without regard to how the same or similar language is used elsewhere in the Constitution. For example, the phrase “Officers of the United States” in one clause may have a different meaning than the phrase “Officers of the United States” in another clause.

This Article—at more than 30,000 words in length—is incomplete. Here, we simply introduce our taxonomy. If all goes to plan, the planned ten-part series will be completed circa Spring 2023. At that point, our project will be substantially complete. And, we hope, any remaining significant lingering questions will have been answered.

Part I of the series is here.

Riley Keenan: Living EquityMichael Ramsey

Riley Keenan (Cornell Law School) has posted Living Equity (39 pages) on SSRN.  Here is the abstract:

Federal courts have long assumed a flexible and dynamic power to afford equitable remedies. Recently, however, the Supreme Court has turned to historical equity practice—in some cases, the practice of England’s chancellor in 1789—to fix the scope of the federal equity power. This “equitable originalism” poses a grave threat, particularly in cases like Whole Women’s Health v. Jackson, where the Court concluded that it largely lacked the equitable powers needed to prevent a Texas abortion statute from infringing women’s constitutional rights.

This Article challenges the current Supreme Court’s historical approach. Instead of looking exclusively to history, courts should treat federal equity as a living, evolving body of doctrine whose roots ultimately trace to medieval England but whose content has been steadily refined and expanded in the United States through common law reasoning. This approach better reflects not only the founding-era statutes and cases that created and defined the federal equity power, but it also better reflects the Supreme Court’s later practice, English equity practice, and equity’s broader function in the Anglo–American legal system. Finally, it brings structure to ongoing debates over controversial equitable practices—like universal injunctions and extensions of Ex parte Young—by explaining how, why, and to what extent history matters when courts do equity today.

Congress Must Resubmit the Proposed Equal Rights Amendment to the StatesAndrew Hyman

President Biden is urging Congress to recognize ratification of the Equal Rights Amendment (ERA).  This is strange for several reasons, not least of which is that leading scholars such as the late Justice Ruth Bader Ginsburg (a steadfast supporter of the ERA) have acknowledged that the ERA would have to “be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.”

To Justice Ginsburg, I can add my co-bloggers Mike Rappaport and Michael Ramsey, who basically agree with Ginsburg.  Plus, the Office of Legal Counsel in the Department of Justice reached similar conclusions in a long and scholarly memo on this whole subject in 2020.

Congress initially submitted the ERA to the states in 1972 with a seven-year window to ratify it.  Before the window closed, Congress in 1978 purported to extend the deadline until June 30, 1982 and President Carter signed it, given that this extension failed to garner a two-thirds majority in either house of Congress.  There has been much controversy about whether Congress really had power to do that in 1978, but for purposes of this blog post let’s suppose Congress did have such power.  The fact remains that the extended deadline expired on June 30, 1982 without the required ratifications, and Congress clearly intended for that to be the end of it.  Here is the text of House Joint Resolution 638 (emphasis added):

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any provision of House Joint Resolution 208 of the Ninety-second Congress, second session, to the contrary, the article of amendment proposed to the States in such joint resolution shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States not later than June 30, 1982.

So this boils down to a matter of statutory interpretation: “not later than June 30, 1982” originally meant “no later than June 30, 1982.”  On that date, the ERA proposal that was submitted to the states in 1972 became inoperative.  

Congress was not writing on a blank slate in 1978, as the Supreme Court had already written quite a bit on this subject.  For example, in the 1939 case of Coleman v. Miller, the Court reaffirmed its previous holding that Congress had power to decide that a proposal to amend the Constitution “should be inoperative unless ratified within seven years.” In Coleman, there was a serious question “whether the proposal by the Congress of the Amendment had lost its vitality through lapse of time….”  The Court’s answer was that, “Congress has the power under Article V to fix a reasonable limit of time for ratification….”  This was the original context in which Congress set an extended deadline for the ERA in 1978.

Assuming Congress has the same power under the Necessary and Proper Clause to sunset a proposed amendment as it has under Article V (which is doubtful), Congress exercised this power in 1978 when it said the ERA had to be ratified no later than June 30, 1982.  On that date in 1982, the proposal lost its vitality through lapse of time and became inoperative, per the will of Congress, and Congress cannot now change that history by denying it ever happened.  An inoperative proposal is not a proposal at all, and that describes the ERA situation after 1982.  The contrary notion is so strange that I would not be surprised if the courts weigh in on it.

P.S.  For those of you readers who think somehow the principle is applicable that Congress cannot tie the hands of future Congresses, are you willing to also say that a state legislature who ratified the ERA cannot tie the hands of a future legislature who want to rescind that state's ratification?

Lawrence Solum: The Public Meaning ThesisMichael Ramsey

Lawrence B. Solum (University of Virginia School of Law) has posted The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning (101 Boston University Law Review 1953 (2021)) (96 pages) on SSRN.  Here is the abstract:

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process included intense popular participation. Jurists and scholars emphasized the public nature of the Constitution.

The communication of public meaning is made possible by two features of constitutional communication. The first of these features is a shared language: the drafters of the constitutional text could rely on the fact that American English was spoken by most Americans and was accessible via translation to those who spoke German and Dutch. The second feature is a shared public context of constitutional communication: the drafters could rely on widely shared understandings of the circumstances in which the Constitution was framed and ratified. These features enable the creation of public meaning. Common objections to the Public Meaning Thesis, including the “summing problem,” are based on mistaken assumptions about the way linguistic communication works. In sum, the central claim of the Article is that Public Meaning Originalism provides the best understanding of original meaning and hence the most attractive form of originalist constitutional theory.

As Professor Solum would say, "Highly recommended!  Download it while it's hot!"

Lincoln on Acts of WarDavid Weisberg

I want to comment on Prof. Ramsey’s recent post discussing whether Pres. Biden may, consistent with the Constitution, deploy troops to Ukraine.  He correctly observes that, as commander in chief, the president may deploy U.S. troops, and that “a deployment may provoke a war … But deployment itself does not create a state of war … The deployment itself would create a state of war only if it violates Russian sovereignty, and Russian sovereignty obviously does not extend to whether Ukraine hosts a U.S. deployment.”  I agree with all this. 

 

But Prof. Ramsey then goes on:

The issue dates at least to 1846, when President Polk deployed troops to the north bank of the Rio Grande River, provoking an attack by Mexico that started the Mexican War.  Some contemporaries (including Abraham Lincoln, then a congressman) thought Polk violated the Constitution.  But (contra Lincoln) the Constitution doesn’t say the President cannot act provocatively.  Many things a President might do, in the conduct of diplomacy, for example, might provoke a war.  A no-provocation rule would be impossible to implement and impose too great a restriction on presidential foreign policy. 

This is not a correct account of Lincoln’s objection to the Mexican-American War.  Lincoln never argued that the War was unnecessary and unconstitutional because the U.S. had acted provocatively in deploying forces along the border with Mexico.  Rather, Lincoln contended that the U.S. had deployed its forces onto Mexican soil—had invaded Mexico—and thus had itself committed an act of war against Mexico.  Lincoln’s view was that the War was unconstitutional because the U.S. was the unjustified aggressor, and Congress’s declaration of war was therefore grounded on a falsehood, namely, that first blood had been shed on U.S. soil.

In his definitive speech in the House of Representatives on Jan. 12, 1848, Lincoln said this:

The President, in his first war message of May 1846, declares that the soil was ours on which hostilities were commenced by Mexico; and he repeats that declaration, almost in the same language, in each successive annual message, thus showing that he esteems that point, a highly essential one. In the importance of that point, I entirely agree with the President. To my judgment, it is the very point, upon which he should be justified, or condemned. In his message of Decr. 1846, it seems to have occurred to him, as is certainly true, that title—ownership—to soil, or any thing else, is not a simple fact; but is a conclusion following one or more simple facts; and that it was incumbent upon him, to present the facts, from which he concluded, the soil was ours, on which the first blood of the war was shed.

An examination of the entire speech reveals that Lincoln never argued that Pres. Polk acted improperly or unconstitutionally because he deployed troops on U.S. soil in a manner that provoked a Mexican attack.  Rather, he consistently argued that Polk acted improperly and unconstitutionally because he deployed troops onto Mexican soil, where first blood was shed. 

Invading a neighboring country is, of course, very different from provoking that neighbor to invade one’s own country.  What alarmed Lincoln was the former circumstance, not the latter.   

Alan Meese: Antitrust Regulation and the Federal-State BalanceMichael Ramsey

Alan J. Meese (William & Mary Law School) has posted Antitrust Regulation and the Federal-State Balance: Restoring the Original Design (American University Law Review, Vol. 70, No. 1, 2020) (92 pages) on SSRN.  Here is the abstract:

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of Sherman Act precedent that had recognized exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the regime of competitive federalism that had governed most intrastate restraints for more than five decades.

Drawing from its Commerce Clause jurisprudence of dual federalism, the Court initially employed the direct/indirect standard to allocate regulatory authority over intrastate restraints. Effects were direct if a restraint exercised market power to injure out-of-state consumers. The Sherman Act exerted Congress’s exclusive authority over such restraints, because state regulation might produce self-interested results contrary to the anti-favoritism principle that animated Commerce Clause jurisprudence. States retained exclusive authority over agreements producing indirect impacts on interstate commerce, and a regime of competitive federalism generated the rules governing such restraints. Because states internalized the full impact of such restraints, interjurisdictional competition likely tended to produce optimal legal rules.

Echoing Wickard v. Filburn, the Court jettisoned the direct/indirect standard in 1948, holding that the Act reaches restraints producing a “substantial effect” — even if harmless and indirect — on interstate commerce. This vast expansion of the Act undermined the regime of competitive federalism that had governed most intrastate restraints. This change also enabled application of the statute to local, state-approved restraints, empowering antitrust courts to supervise state regulatory processes, further undermining competitive federalism.

The Court has offered three rationales for rejecting the direct/indirect standard. First, the Court has claimed that Congress meant to reach restraints beyond the authority implied by pre-1890 dual federalism jurisprudence. Second, the Court has contended that the Act properly expands whenever the commerce power expands in other contexts. Third, the Court has treated the substantial effects test as a translation of the Act justified by a changed national economy. The Court has invoked the Act’s legislative history to bolster the first two contentions.

None of these rationales survives scrutiny. First, the phrase “restraint of... commerce among the several States” was apparently a term of art drawn from pre-1890 Commerce Clause jurisprudence. That case law employed “restraint” of interstate commerce as a synonym for state “regulation” of commerce deemed invalid because it directly burdened interstate commerce. Given the prior construction canon, Congress’s invocation of “restraint of... commerce” suggests that the Act should condemn only those private agreements that “directly burden” interstate commerce. The Court read the Act exactly this way in the1890s, repeatedly holding that intrastate or interstate agreements only restrained interstate commerce if they imposed direct burdens by producing supracompetitive prices for interstate transactions. These near-contemporaneous readings, themselves probative of original meaning, avoided constitutional difficulties that would have resulted from application of the Act to restraints causing no interstate harm.

Second, assertions that Congress chose to exercise whatever power future Courts might grant are speculation. Congress has declined to exercise its entire commerce power when enacting three different post-1890 antitrust statutes. Moreover, engrafting the substantial effects test onto the Sherman Act contravened the federal-state balance canon by supplanting traditional state prerogatives over intrastate restraints threatening no interstate harm.

Third, the substantial effects test is not a faithful translation of the Sherman Act in light of new facts. No court or scholar has identified changed circumstances that justify such a translation. Neither integration of the national economy nor increased scale of enterprises suggests that intrastate restraints generally produce interstate harm or that states are incapable of regulating them.

The legislative history bolsters this textual analysis. Several Senators endorsed pre-1890 dual federalism jurisprudence. The Senate Judiciary Committee rewrote Sherman’s bill, employing the term “restraint of commerce” to narrow its reach. The House passed the Senate bill verbatim, after its Judiciary Committee also embraced dual federalism. No member of Congress suggested that the Act would expand if the Court subsequently enlarged the scope of the commerce power.

The conclusion that the Court erred in 1948 does not itself justify return to the pre-1948 allocation of authority over antitrust matters. While stare decisis is weaker in the antitrust context, mere legal error does not suffice to upset longstanding precedent. If, however, the Court attributes the 1948 revision and continued expansion of the Act to changed economic circumstances — such as increased integration of the national economy — stare decisis should yield to post-1948 developments in the theory of competitive federalism. These developments confirmed that states possess appropriate incentives to generate impartial rules with respect to restraints that produce no interstate harm.

Reviving the direct/indirect standard would reboot competitive federalism in antitrust. The resulting competition between state “laboratories of democracy” would generate various substantive and institutional solutions to antitrust problems, as states vie for producers and consumers by offering rival packages of antitrust doctrine and enforcement institutions. Restoring the pre-1948 regime would also radically shrink the category of state-approved restraints potentially subject to the Act. Cases involving such restraints that did reach the Court would look quite different from those that have informed the Court’s treatment of these restraints. Instead of state regulation of local billboards and the like, such cases would involve restraints imposing substantial harm on out-of-state consumers. This new framing could force the current Court, which has less faith in regulation than its predecessors, to reconsider its approach to state-approved restraints.

Lawrence Solum on Scott Soames on OriginalismMichael Ramsey

At Springer, Lawrence Solum: Deferentialism: Soames on legal interpretation (reviewing [favorably] chapter 12 of Scott Soames, The World Philosophy Made (Princeton University Press 2019)).  Here is the abstract: 

This essay explores themes raised by Scott Soames in Chapter Twelve of The World Philosophy Made. Soames’s key contribution is the articulation of a general theory of legal interpretation and more specific theory, Constitutional Deferentialism, that is a form of public meaning originalism. His development of the connections between the philosophy of language and legal interpretation have been especially important and influential.

And from the introduction:

In The World Philosophy Made, Scott Soames ranges across a wide variety of topics, including the contribution that philosophy has made to legal theory. In Chapter 12, ‘‘Laws, Constitutions, and the State,’’ Soames begins with the basics, including H.L.A. Hart’s account of the nature of law from The Concept of Law, but the heart of the chapter is his argument for a constrained role for both judges and the executive branch in the context of the United States Constitution. The lynchpin to that argument is Soames’s theory of legal interpretation. This essay focuses on that theory.

Soames begins with Article I of the United States Constitution, which states, ‘‘All legislative powers herein granted shall be vested in a Congress of the United States.’’ He then states his basic argument: ‘‘To take this seriously is to recognize that neither the courts, the executive, nor the regulatory agencies are authorized to make laws.’’ Soames moves directly from the text to the speech act theory. Constitutions and statutes involve stipulations. Thus, the vesting clause that Soames quotes stipulates that ‘‘legislative power’’ is ‘‘vested’’ in the United States Congress, a new institution created by the Constitution itself.

The question then becomes how we determine what content was stipulated. Soames reminds us that content of a constitutional or statutory provision may not be fully explicit. The text alone is likely to be ambiguous and it may also be incomplete, implying but not stating all of the content that it conveys.  So, interpretation require s both contextual disambiguation and pragmatic enrichment. Otherwise, the constitutional provision or text would have ‘‘indefinitely many meanings’’ or as Soames has put it in oral remarks, linguistic meaning alone is‘ ‘sparse.’’

Soames then provides a general statement of the process by which content is conveyed: When an ordinary speaker uses a sentence S to assert in a given context is, roughly, what an ordinarily reasonable and attentive hearer who knows the linguistic meaning of S, and is aware of all relevant intersubjectively available features of the context of utterance, would rationally take the speakers use of S to be intended to convey and commit the speaker to. (314)And in the context of legal interpretation:Applying this to legal interpretation, we look for what the lawmakers meant,and what an ordinarily reasonable and attentive person who understood the linguistic meanings of their words, the publicly available facts, the recent history in the lawmaking process, and the background of existing law into which the new provision is expected to fit, who take them to have meant. That is the content of the law.

With this general framework in place, Soames then articulates three principles of legal interpretation. His first principle is a reminder that the explicit legal content of the text of a statute or constitutional provision is only part of full content communicated by the statute. The second principle is more complex and has several moving parts, consisting of a general directive and specified exceptions. The general directive requires judges to reach the outcome (Soames says ‘‘verdict’’) determined by the content of the constitutional provisions or statute. The three exceptions cover cases of (a) un-determinacy (such as vagueness or what legal theorists call ‘‘open texture’’), (b) contradiction (where the content of the provision in light of surrounding law leads to inconsistent outcomes, and (c) unanticipated consequences that would frustrate the intended purpose of the law.

Soames’s third principle then provides the procedure to be followed in the three kinds of cases identified by the second principle. Here is his statement in full: 

In cases of [the three types identified by the second principle], the judicial authority is authorized to make new law by adopting a minimum change in the asserted or stipulated content of the law that maximizes the fulfillment of the lawmaker’s discernable intended purposes in making that assertion or stipulation.

The three principles together comprise a general account of legal interpretation. Soames elaborates these principles in the context of constitutional interpretation and construction by articulating a theory he calls ‘‘Constitutional Deferentialism.’’ I will return to that theory and its relationship to contemporary constitutional theory in the United States, but first, we need say something about the theoretical landscape of legal theory in the United States.

On my understanding, Soames’s theory is offered as both a positivist account of what the norms of legal interpretation and construction are, and as a normative account of what they ought to be. For the most part, my comments are directed to the normative dimension of Soames’s argument, but I will have a few comments  about the positivist dimension as well. 

(Via Legal Theory Blog.)

Can the President Constitutionally Deploy Troops to Ukraine?Michael Ramsey

Does the President have independent constitutional power to deploy troops to Ukraine?  My originalist answer is yes.

First, as a general matter the President has constitutional power as commander-in-chief to deploy troops.  Of course, he needs money from Congress to pay for any deployments.  A President with a specific, tightly controlled military budget might as a practical matter be unable to make a deployment without asking Congress for additional funds.  But the modern military budget is not specific and tightly controlled.  I'm sure the current President has enough discretionary funds to pay for a deployment to Ukraine.

Apart from the need for funds, the constitutional limit on the President's power to deploy troops is the declare war clause.  As I've argued (in Textualism and War Powers), the original meaning of that clause is that Congress has exclusive power to put the nation in a state of war, whether by issuing a formal pronouncement or by directing an act of war. So the President cannot make a deployment that creates a state of war without Congress' approval.  But deploying troops to a friendly country (assuming that country gives permission) does not create a state of war -- obviously not with the friendly country, and also not with another country that may oppose or feel threatened by the deployment. 

It's true that a deployment may provoke a war.  In the present situation a deployment to Ukraine might provoke a war with Russia.  But the deployment itself does not create a state of war -- if war occurs, it will start with a Russian attack.  The  deployment itself would create a state of war only if it violates Russian sovereignty, and Russian sovereignty obviously dies not extend to whether Ukraine hosts a U.S. deployment.

This conclusion may seem to give the President too much power over war.  The issue dates at least to 1846, when President Polk deployed troops to the north bank of the Rio Grande River, provoking an attack by Mexico that started the Mexican War.  Some contemporaries (including Abraham Lincoln, then a congressman) thought Polk violated the Constitution.  But (contra Lincoln) the Constitution doesn't say the President cannot act provocatively.  Many things a President might do, in the conduct of diplomacy, for example, might provoke a war.  A no-provocation rule would be impossible to implement and impose too great a restriction on presidential foreign policy.  The Constitution only says the President cannot start a war.

That does not mean, though, that Congress is powerless to limit presidential provocations.  As to deployments specifically, as noted above the President can make them only if Congress has already approved enough discretionary funds for the military.  It's the modern military budget, as much as the Constitution, that empowers the President to deploy troops to Ukraine (and even in 1846, Polk apparently had enough discretionary funds to send the army to the Rio Grande).  If Congress doesn't like provocative deployments, it shouldn't hand the President unrestricted money.  Further, even if the President provokes a war, Congress can refuse to fund it (or can fund only defensive measures).  Polk didn't have enough discretionary funds to fight the Mexican War so he asked Congress to authorize further spending.  If Congress didn't like the war, or the way it started, it could have refused Polk's request; instead, Congress approved enough money for an invasion of northern Mexico, and when that proved inconclusive, it approved additional funds for an attack on Mexico City.  So Congress seemed to have little ground to complain about Polk's provocations.  And generally, the charge that presidential provocations undermine Congress' declare war power are unfounded: Congress has tools to limit provocations, if it want to use them.

Legal Theory Lexicon: Vagueness and AmbiguityMichael Ramsey

From Larry Solum's Legal Theory Lexicon: Vagueness and Ambiguity.  From the introduction:

This week the Legal Theory Lexicon entry focuses on "ambiguity" and "vagueness"--two important concepts for the theory of interpretation.  Some legal texts are ambiguous--they contain words or phrases that can have two or more distinct meanings.  And some legal texts are vague--they use concepts that have indefinite application to particular cases.  And some legal texts are both vague and ambiguous--they have multiple meanings, some (or all) of which have indefinite applications.  Because "vagueness" and "ambiguity" are basic concepts in the theory of interpretation, its important to master each of them and to understand the difference between them.

--

What does it mean to say that a concept, term, or phrase is vague?  Let's start with some examples and then try for an elucidation of the concept.  "Tall" is a good example of a vague concept.  Some humans are definitely not tall--Danny DeVito, for example.  Others definitely are tall--Boban Marjanović, for one.  But the term "tall" is vague.  5'11 is almost definitely tall for a woman in the United Sates, but might be a borderline case for men.  "Tall" is not the sort of quality for which there are definite criteria that sort the world into "tall" things and "not tall" things.  In other words, "tall" is vague.

...

What about "ambiguity"?  A word or phrase is ambiguous if it has more than one meaning.  Take "cool" for example.  One meaning of "cool" has to do with temperature, and in this sense, "cool" contrasts with "warm," "cold," and "hot."  Another meaning of "cool" has to do with fashion and social attractiveness.  And there are other senses of "cool" as well, as in, he kept his cool in a very pressured situation.  So, the word "cool" is ambiguous because it has multiple senses, with each sense representing a different concept.

And from later on:

Now that we have a basic grasp of vagueness and ambiguity, we are in a position to see that each of these two concepts has a role to play in a theory of the interpretation of legal texts.

Many legal texts are vague.  In fact, most law students become very familiar with a variety of vague terms early in their law school careers.  Take "reasonable"--was the tort defendant's conduct "reasonable" under the circumstances?  There will be clear cases of unreasonable conduct: driving 150 mph in a residential area.  But there will also be borderline cases.  Was it reasonable to drive at 55 mph in a light fog?

Some legal language general, abstract, and vague.  For example, the phrase "equal protection" in the 14th amendment of the United States Constitution might refer to a very general and abstract idea of equality.  Given this generality and abstraction, it might be that the "borderline" cases seem to make up the whole of equal protection doctrine.  What would count as a clear example of "equal" or of "unequal"?  In a common law system, general and abstract language may be translated into relatively more particular and concrete rules through case-by-case adjudication.

Vagueness is ubiquitous in the law, and frequently legal actors (courts and others who apply the law) must resolve borderline cases.  Every law student is familiar with the strategies that are employed, which include case-by-case balancing tests, supplementary doctrines that provide bright-line rules to implement vague legal texts, and so forth.

Ambiguity may be less common, because many potentially ambiguous terms or phrases are disambiguated by context.  "Seizure" can refer to a physical taking or it can refer to a medical symptom, but in the Fourth Amendment of the United States Constitution, it is clear that the correct meaning is the former rather than the latter....

Philip Hamburger: Nondelegation Blues (with a Response from Nicholas Parrillo)Michael Ramsey

Philip Hamburger (Columbia University - Law School) has posted Nondelegation Blues (90 pages) on SSRN.  Here is the abstract:

The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.

This Article examines the Constitution’s treatment of the problem. Whereas other scholarship tends to focus narrowly on a single concept, whether delegation or vesting, this piece takes a more ecumenical approach. It uncovers layers of relevant concepts, showing how each contributes to the Constitution’s vision.

For example, it is necessary to consider the principles of consent, different powers, separation, and exclusivity before one gets to delegation. Although the Framers voted against permitting any congressional delegation, they did not rest content with delegation language. Instead, they drafted the Constitution in terms of vesting. But not just vesting, for Constitution says that its powers “shall be vested.” Far from merely a transfer of the powers, this was an express declaration of their mandatory location.

The Article thereby goes far beyond existing scholarship in showing how fundamental principles, drafting assumptions, and text were all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination of underlying principles, framing assumptions, and text.

The Article also shows the refinement of the Constitution’s approach. The Constitution’s sophistication has not been much appreciated in the scholarly literature. But it will be seen that the Constitution was anything but crude in barring transfers of powers. For example, it adopted the separation of powers not in an absolute way, but as a default principle. While it precluded the transfer of legislative power, it left much room for executive rulemaking. Even though its powers were externally exclusive, they were not always exclusive internally—that is, some of them could be subdelegated within the branches of government. And the eternally exclusive powers permitted much nonexclusive authority to be exercised under those powers. Wherever one stands on the transfer of legislative power, these distinctions are important and need to be recognized as qualifying the larger point about the location of legislative power.

Not merely a technical doctrinal question about the distribution of powers, the problem here is bound up with more visceral social and political values. Judges and academics tend to discuss it if it were merely a matter of doctrine, unconnected to larger questions of expanded suffrage and untainted by unwholesome animosities. But this fails to acknowledge the underlying legacy of prejudice and the enduring reality of discrimination and disenfranchisement.

Nicholas Parrillo (Yale), one author whose work Professor Hamburger criticizes, has this response at the Yale Journal on Regulation's Notice and Comment Blog: A Brief Response to Philip Hamburger on Nondelegation, Original Meaning, and the Direct Tax of 1798.

Eric Segall Reviews "The Original Meaning of the Fourteenth Amendment"Michael Ramsey

At Dorf on Law, Eric Segall: A New (Read Old) And Improved 14th Amendment? (reviewing [more favorably than you'd expect] The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit," by Randy Barnett and Evan Bernick).  From the introduction:

My major takeaway is that anyone interested in the circumstances surrounding the ratification of the 14th Amendment should read this book. This is not to say that either I, or certainly other scholars who have mined the same sources, will agree with all the conclusions that Barnett and Bernick reach. But the book is fascinating, accessible when necessary and sophisticated where appropriate, and most importantly, it does what books by law professors ought to do: it makes one think, reflect, and then re-examine core assumptions. 

There is much too much content in the book for a blog post to do justice to all the covered ground. Here are some headlines that might surprise you and some that probably won't.

Before turning to their historical accounts, Barnett and Bernick provide a thumbnail sketch of their "letter and spirit" approach to constitutional interpretation. In their words, the letter of the law is "the meaning that it originally conveyed to the public." The spirit of the law "consists of the ends, purposes, goals, or objects that the [law] was adopted to accomplish--its design functions." Where the letter is clear, judges must follow it. Where it is not, judges should look to the spirit of the law, which the authors concede in many circumstances dealing with the Constitution, will lead to underdeterminacy. There, we find the famous New Originalism construction zone, and forests have been burned by legal scholars debating its contours.

I have discussed this "letter and spirit" approach at length before on this blog. My two main conclusions have not changed: virtually all of litigated constitutional law is in the construction zone, and if "spirit" is going to be our trump card over the specific expected applications of those who wrote, discussed, and ratified the text in question, then that approach is originalism in name only. Those criticisms are not relevant, however, to most, maybe all, of this book, and I do not want them to sidetrack people from appreciating the book.

...

The authors use founding-era, more immediate pre-ratification, and post-ratification evidence to reach their conclusions regarding what the 14th Amendment originally meant. The stories they recount, the cases they describe, and the debates they summarize make for compelling reading. Anyone interested in constitutional debates from the Founding to the end of the 19th century will find much in this book to learn, digest, and think deeply about.

I am not a historian and therefore do not feel qualified to judge the authors' historical conclusions, which are at times quite surprising. I will summarize them below to possibly entice those reading this review to pick up the book....

John McGinnis on the Vaccine Mandate CaseMichel Ramsey

At Law & Liberty, John McGinnis: Jabbing the Administrative State.  From the introduction: 

Epochal events often generate canonical Supreme Court cases. During the Korean War, President Harry Truman ordered his Secretary of Commerce to seize and operate a group of steel mills to ensure continued operations in the face of a strike. In Youngstown Sheet & Tube v. Sawyer, the Supreme Court held that Truman lacked authority to give that order, because Congress had never delegated him such power.

The decision has rightly been hailed as an essential invocation of the principle of limited government—in this case, that the President, at least domestically, has no greater authority than that which Congress chooses to grant. It remains the most important separation of powers decision of the last century. And since the separation of powers is an important structural protection for liberty, it is one of the most important liberty-protecting decisions the Court has handed down.

Last week, in NFIB v. OSHA, the Court struck down another action of a President in a national emergency. This time the emergency was natural rather than man-made—the Covid pandemic. And this time the President’s order did not take over businesses outright but instead mandated that they require their employees be vaccinated unless they mask and frequently test.

This case may turn out to be critically important for administrative law, with vital implications for the separation of powers. It potentially cabins the awesome authority of the modern administrative state to make impositions on our liberty in three separate ways: by circumscribing the deference that agencies get for their statutory interpretations, by forcing Congress to speak clearly if it wants to invest an agency with significant authority, and by requiring an administration to give the real rather than pretextual reasons for its administrative decision making. As with Youngstown, the decision was prompted by an emergency, but it is significant because it will apply a fortiori in more quotidian circumstances. 

And from later on:

One striking legacy of Youngstown is that it was not Justice Black’s majority opinion that has had the most influence but Justice Robert Jackson’s concurrence. Indeed, Jackson’s concurrence may be the most important concurrence in the history of the Supreme Court. Jackson softened the hard-edged Black opinion, suggesting that there were times the President might be able to act in emergency situations so long as it was not contrary to the expressed will of Congress.

In the OSHA case, Justice Gorsuch wrote a concurrence potentially as important as Jackson’s. He argued that even if Congress had made it clear that OSHA could regulate any public health danger it deemed necessary to protect workplace health, he still would have invalidated the statute because Congress had not provided sufficiently clear standards for exercising that substantial power. Thus, he would have revived the nondelegation doctrine and required Congress to provide much clearer direction on the way power was to be exercised beyond telling agencies what power was to be exercised. If his view were accepted, many delegations which clearly give great and largely standardless authority to agencies would have to be reconsidered. Of course, we should not necessarily think this concurrence will become the law, as only Justices Clarence Thomas and Samuel Alito joined it.

But even if the majority opinion, and not the concurrence, is the primary indicator for the future, the Roberts Court has served notice that administrative law may look different going forward. The Court rather than the agency will interpret major questions in statutes. Congress will need to be pellucid about what major powers it chooses to delegate. And the administration will have to offer up the real reasons for administrative actions or risk being second-guessed by the judiciary. Though they will not eliminate it, all of these new doctrines combine to tame the modern administrative state.

Agreed, and I like that the essay connects the vaccine mandate case to Youngstown, the canonical case limiting executive power.  The vaccine mandate case, and others like it, are typically discussed as limits on administrative agencies.  But most often (as with the vaccine mandate case) they are really limits on executive power.  It was only nominally OSHA, and in fact the President, that imposed the vaccine mandate.  Limiting the ability of executive agencies to justify actions under broad, vague, and not-on-point statutes limits executive power, as surely as Youngstown limited executive power to act in the absence of any statute.

It's odd that center-left judges and commentators, who claim great concern about unlimited executive power, do not worry about the President's ability to claim broad power from basically standardless statutes.

Martin Kelly on Originalism and Temporal MeaningMichael Ramsey

At Legal-Phi, an interesting interview with Martin David Kelly (Edinburgh): Speaking Through Time.  An excerpt: 

[Q] In your doctoral thesis The Loquacious Legislature: are statutes ‘always speaking’? you address what you call the “temporal issue” in the meaning of laws. What is the issue?

Martin: The temporal issue is about whether the meaning of an utterance can change over time. (By ‘utterance’, I mean any use of language — including written uses.) There are two broad types of approach to the temporal issue. One is historical: meaning is determined when the utterance was originally made (this is known, especially in constitutional theory, as ‘originalism’). The second treats an utterance as if it had been made recently, and thus gives that utterance its current meaning. I call this second type of approach ‘currentism’ (in constitutional theory, it tends to be known as ‘living constitutionalism’). The temporal issue is most keenly debated for written constitutions (and it is especially contentious in the US). However, it arises not only for almost all legal provisions (including those in private law instruments, such as contracts, wills, and trusts) but also for all utterances — including non-legal ones — that are ‘always speaking’.

What is an ‘always speaking’ utterance?

Martin: A ‘No exit’ sign doesn’t just speak to those who happened to be present when it was installed: it speaks to everyone who considers leaving that way (even if many years later).  It is always speaking the words ‘No exit’, and so they can come to apply to people anew (on an ongoing basis). Of course, this is a metaphor: the sign is not literally always speaking. But imagine a building frequented by the visually impaired where, as well as a written ‘No exit’ sign at the relevant door, there is a sound system that plays an audio recording of someone saying ‘No exit’. To be effective, in instructing people (on an ongoing basis) not to leave that way, that recording would have to be played on a continuous loop. The sound system would need to be always speaking the words ‘No exit’.  

We are surrounded by ‘always speaking’ utterances. A ‘Jesus loves you’ billboard speaks to everyone who passes it, not just to those who happened to watch it being posted. The same is true of virtually all road signs, etc. And, as I show in my thesis, it is also true of most laws: if they are to achieve their purposes, they need to apply to people anew (on an ongoing basis). That is, they must be treated as if they are ‘always speaking’.

[Q] What is the main connection between ‘always speaking’ utterances and the temporal issue?

Martin: The temporal issue only really arises for ‘always speaking’ utterances. Most of our utterances ‘speak’ only once: at the time when they are made. And so they are inevitably to be understood historically: to be given their original meaning. Scalia and Garner gave a vivid example of this: Queen Anne saying of the newly-built St Paul’s Cathedral, in 1711, that it is “awful, artificial, and amusing”. To understand what she meant by this, we must take ourselves back to 1711 — when those words meant awe-inspiring, artistic, and thought-provoking. If we gave Queen Anne’s words their current (2022) meaning, we would misunderstand her: we would take her to be criticising the Cathedral, when she was actually praising it.

Scalia and Garner use this example as part of their argument for originalism in statutory interpretation. But there are two problems with doing so. The first is that this is not an ‘always speaking’ utterance: Queen Anne did not intend that it should apply on an ongoing basis (unlike, say, a standing permission or instruction). So the temporal issue doesn’t really arise for it: utterances that ‘speak’ only once are inevitably intended to be understood historically. So this example (and many others like it) doesn’t really tell us how to resolve the temporal issue.

Seth Barrett Tillman on the Design of Presidential Selection [Updated]Michael Ramsey

At The New Reform Club, Seth Barrett Tillman: How the Constitution’s Original (or pre-1801) Electoral College Worked. From the introduction: 

Under the original design of the Constitution, members of the Electoral College would each cast two votes for President for two distinct candidates, and, at least, one of the two votes cast by each elector could not be an inhabitant of the same state as the elector. There was no separate ballot for Vice President. Generally, the candidate with the most electoral votes would become President, and the runner-up in the Electoral College, who might very well be a political rival of the prevailing candidate, would become Vice President. This scenario is what happened in the 1796 presidential election. Incumbent Vice President John Adams, a Federalist, had 71 electoral votes, and 70 electoral votes was a majority of the electors. Former Secretary of State Thomas Jefferson, the runner up, was a Democratic-Republican, had 68 electoral votes, which was less than a majority of the electors. Adams became President, and Thomas Jefferson became Vice President. (There were 138 authorized electors, and, on this occasion, all the authorized electors voted.)

By modern U.S. elections standards it was an odd system, particularly because it was possible for more than one candidate to carry a majority of the electors. This is how that system worked....

It really was a terrible system.  Among other things, the Framers should have anticipated that (once George Washington left the scene) the top two candidates would be rivals (as promptly happened with Adams and Jefferson).

And a followup post from Professor Tillman: What the Twelfth Amendment Did and Did Not Do.  Key takeaway: the Twelfth Amendment improved the process, but still had its problems.  For example:

Under the pre-12th Amendment constitution, the House could choose among the top five candidates; after the 12th Amendment, the House was limited to the top three candidates. The problem is that the Constitution does not identity what should happen if there are not three candidates which can be readily identified as the top three. This could happen in a number of ways.

Presidential Ties

There can be an n-way tie for first place (carrying less than a majority of the electors), where n is greater than or equal to 4; or,

There can be a 2-way tie for first place (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 2; or,

There can be a first place candidate (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 3; or,

There can be a first place candidate (carrying less than a majority of the electors), with a second place candidate, and an q-way tie for third place, where q is greater than or equal to 2.

In each of these scenarios, it could be plausibly argued that the House has a power to choose the President among the top three candidates and among anyone (else) who ties among the top three. But that interpretation or result does not clearly fit with the Constitution’s text. It could also be plausibly argued that in each of these circumstances, the House is entirely disabled from holding a contingent election for President.

UPDATE:  A third post in the series: Other 12th Amendment Innovations.  Final conclusion:

It was and it remains an odd system.

Indeed.

The Stolen Art Case and the Limits of FormalismMichael Ramsey

Today the Supreme Court hears argument in  Cassirer v. Thyssen Bornemisza Collection Foundation, which involves an effort to recover a painting seized by the Nazis that ended up in the hands of a Spanish Museum.   The question presented is a technical one:

Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

To my mind the answer is blindingly obvious.  The Foreign Sovereign Immunities Act (FSIA), Section 1606, directs that:

As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances...

The  defendant in Cassirer is a Spanish state-owned entity (the museum) that is defined as a "foreign state" under the FSIA.  It is not entitled to immunity as a result of an exception to immunity under Section 1605.  Therefore, by Section 1606, it "shall be liable in the same manner and to the same extent as a private individual under like circumstances."  No one disputes any of this.

Further, no one disputes that under the Court's longstanding decision in Klaxon v. Stentor Electric Manufacturing Co., a similar suit against a private defendant would be governed by the substantive law chosen by the forum state's choice-of-law rules.  That is, a "private individual under like circumstances" would be governed by the choice of law rules where the suit is heard (here, California).  Thus, it seems (to me) necessarily to follow  that the state-owned defendant in Cassirer should also be governed by the choice of law rules where the suit is heard.  (I joined a law professors' amicus brief, principally written by Professor Zachary Clopton of Northwestern, saying basically that.) 

I'm optimistic that the Supreme Court will agree: the Court has been excellent in following the text of the FSIA in a series of recent cases.  But the fact that the case has gotten as far as it has is not encouraging.  An excellent panel of the Ninth Circuit (Judges Callahan, Bea and Ikuta) held instead that federal common law (meaning them making it up) should govern the choice of law question.

I understand their impulse.  California has absurdly broad choice of law rules that in this case might have applied California law to a dispute about a Spanish defendant's title to a painting seized from its rightful owner (a German) by Germans in Germany, and ultimately acquired by the Spanish defendant from a Swiss citizen in Spain.  Moreover, there may well be serious foreign policy implications were a court to force the Spanish defendant -- which wasn't complicit in or likely even aware of the initial theft -- to give up the painting.

In a formalist world, none of this should matter.  The statute says the same rules apply to a private defendant and a non-immune state defendant.  That's all one should need to know.  But it wasn't enough to make this an easy case (at least so far).  

RELATED:  Will Baude has thoughts on the case here.  He may well be right about some larger concerns, but that doesn't affect my view of this particular case.  

New Criterion Symposium on Common Good ConservatismMichael Ramsey

At New Criterion, a symposium on “Common-good conservatism: a debate”, with a leading essay by Kim R. Holmes, responses by Ryan T. Anderson, Josh Hammer, Charles R. Kesler, Daniel J. Mahoney, James Piereson, Robert R. Reilly, and R. R. Reno, followed by concluding remarks from Mr. Holmes.

Kim Holmes' essay is The Fallacies of the Common Good.  From the introduction:

Anyone observing the evolution of conservative thought over the past few years could not have escaped a growing trend. Politicians, intellectuals, and think-tankers are questioning traditional American conservatism’s commitment to limited government, individual natural rights, and economic freedom. They are talking up the virtues of the common good in ways that call into question their commitments to liberty and freedom.

The philosophical questioning of the principles of the American founding is coming from two different factions within the Right. One involves the national conservatives. The other is from philosophers who wish to resurrect the moral organizing principles of natural law. Both reject the idea of “intrinsic” rights that is traditionally associated with the founding.

The fact that these critiques arise from the American Right is significant. American progressivism has long questioned the founding and tried to revise it to suit its purposes. Now it appears members of the Right are doing the same thing. Why? And what are the implications, not only for conservatism but for the American nation?

Of the two common-good schools of thought, the national conservatives are the more prominent. Intellectuals such as Yoram Hazony and Josh Hammer have developed a theory of American conservatism that is inspired by Edmund Burke. What is novel is not the reference to Burke per se—the conflict between Burke and John Locke has long been part of the debate on whether the founding was liberal or conservative. Rather, it is the linking of the Burkean argument to the tradition of nationalism that is new. Like Burke, the national conservatives believe a nation’s identity and government should be organized around its unique history, culture, and customs. Like modern nationalists, they believe national sovereignty is justified by the particular rights of peoples—all peoples in their unique ways—rather than by the universalist claims of legitimacy that often attend democratic institutions.

One of the most thorough expositions of the national-conservative viewpoint is found in an essay by Josh Hammer published in the Harvard Journal of Law and Public Policy [Ed.: available here]. Hammer criticizes the doctrine of constitutional originalism and posits instead what he calls “common-good originalism.” His main conclusion is that the American founders were not really Lockean believers in intrinsic rights, but Burkeans who saw rights as instrumental or as means to an end. ...

For that reason, conservatism “rightly understood” is “more open to wielding state power” and, when need be, willing to “enforce our order” or even to “reward friends and punish enemies (within the confines of the rule of law).”

Josh Hammer's response is Yesterday’s man, yesterday’s conservatism: On common-good originalism.

Via Paul Mirengoff at Powerline, who summarizes the essays here:

The National Conservatives, A Debate

The National Conservatives, A Debate, Part Two

He also points to this essay by Peter Berkowitz: The Debate Over 'Common-Good Conservatism'.

Ann Woolhandler on Nicholas Parrillo on NondelegationMichael Ramsey

Ann Woolhandler (University of Virginia School of Law) has posted Public Rights and Taxation: A Brief Response to Professor Parrillo (11 pages) on SSRN.  Here is the abstract:

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo’s article appeared, particularly arguing that Congress itself addressed the important issues as to the 1798 tax. This paper instead focuses on Parrillo’s claim that the 1798 tax did not fall within any limited special category for nondelegation purposes. Admittedly, Parrillo’s evidence undermines some generalizations that early rulemaking was not “coercive and domestic.” Taxation, however, falls into the category of public rights, which could include matters that were domestic and coercive, but that nevertheless allowed for a more lenient application of separation of powers strictures.

Here are links to the key papers discussed in the essay:

Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power:
New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021)

Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1497 (2021)

UPDATE:  Jonathan Adler comments at Volokh Conspiracy: Woolhandler on Public Rights, Taxation and Delegation at the Founding, including this observation: 

One point that Woolhandler's comment underscores is that contemporary characterizations of the scope, nature, importance of particular delegations may not track with those of the founding period. Indeed, the prevailing categories and characterizations of 1787 might not even make much sense to modern commentators. But insofar as the original meaning of the Constitution does place limits on the delegation of legislative power, founding era characterizations and understandings would be more important than those of today.

Podcast on Executive Power and Originalism with Jed Shugerman, Eric Segall and MeMichael Ramsey

Thanks to Eric Segall for hosting me on his podcast Supreme Myths along with Professor Jed Shugerman of Fordham Law School -- the topic is "Presidential Power, Originalism, and Judicial Review," and Professor Shugerman and I agree on more things than one might expect, while still disagreeing on a lot. Sometimes we gang up on our moderator.

(There are other interesting podcasts in the series, including Professor Segall talking with Jamal Greene about his new book How Rights Went Wrong, among other things.)

Jack Beermann: The Immorality of Originalism [Updated with a Comment from Andrew Hyman]Michael Ramsey

Jack Michael Beermann (Boston University School of Law) has posted The Immorality of Originalism (56 pages) on SSRN.  Here is the abstract:

The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of power within the government, which leads to dependence on the un-democratic Supreme Court to resolve important and controversial social issues and finally originalism’s tendency to force otherwise honorable people to lie or obfuscate about the reasons for their official decisions.

ANDREW HYMAN comments (19 Jan. 2022):  Professor Beermann mentions that “The title is, of course, designed to get attention the way that scholars often do with outlandish or extreme claims. A better title might have been ‘Originalism versus Welfare.’” Personally, I try to avoid making outlandish or extreme claims that could mistakenly be taken seriously, because I don’t want people to think I’m outlandish or extreme, and there’s also something to be said for accurate labeling.  But maybe I’m missing an opportunity, if indeed all publicity is good publicity. Professor Beermann also confesses he is unsure whether “non-originalist constitutional reasoning would lead to better decisions than originalism.”  For sure, sometimes it would and sometimes it wouldn’t, and there is the further option of getting rid of constitutions and constitutional reasoning altogether (which I would prefer instead of allowing judges to freely contradict original meaning).

The Year in Review: Originalism Articles of 2021 (Part 3)Michael Ramsey

My final post in this series is entirely subjective: I picked 22 originalism-oriented articles from 2021 (that weren't on my other 2 lists, see here and here), that were featured on the Originalism Blog, and that I thought were especially interesting.  (Here is my similar post from last year.) But probably I forgot some.  Here they are:

Gregory Ablavsky (Stanford), Getting Public Rights Wrong: The Lost History of the Private Land Claims

Jud Campbell (Richmond), The Emergence of Neutrality

Christine Kexel Chabot (Loyola Chicago), Interring the Unitary Executive

Saul Cornell (Fordham), The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America

James Fox (Stetson), The Constitution of Black Abolitionism: Re-Framing the Second Founding

Josh Hammer (Edmund Burke Foundation; Newsweek), Common Good Originalism: Our Tradition and Our Path Forward 

Jean Galbraith, The Runaway Presidential Power over Diplomacy

Anita Krishnakumar (Georgetown), Statutory History

Kurt Lash (Richmond), Re-Speaking the Bill of Rights: A New Doctrine of Incorporation 

Kurt Lash (Richmond), The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists)

Gary Lawson (Boston University) & Guy Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law), Are People in Federal Territories Part of “We the People of the United States”?

Thomas H. Lee (Fordham), Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787 – 1792 

Ethan Leib (Fordham), Are the Federal Rules of Evidence Unconstitutional? 

Michael Mannheimer (Northern Kentucky), Fugitives from Slavery and the Lost History of the Fourth Amendment

James Pfander (Northwestern) & Andrew Borrasso (J.D. Northwestern '20), Public Rights and Article III: Judicial Oversight of Agency Action

James Pfander (Northwestern) & Elena Joffroy (J.D., Northwestern '20), Equal Footing and the States "Now Existing": Slavery and State Equality Over Time

Elizabeth Pollman (Penn), Corporate Personhood and Limited Sovereignty 

Saikrishna Prakash (Virginia) & William Hall (Virginia JD ’19), The Constitution’s First Declared War: The Northwestern Confederacy War of 1790-95

David Schwartz (Wisconsin) & John Mikhail (Georgetown), The Other Madison Problem

Holden Tanner (Yale J.D. ‘21), Constitutional Norms in Originalist Adjudication 

Franita Tolson (USC), 'In Whom is the Right of Suffrage?': The Reconstruction Acts as Sources of Constitutional Meaning 

Lael Weis (Melbourne), Originalism and Constitutional Amendment

Eric Claeys on Dobbs and PrecedentMichael Ramsey

Eric Claeys (George Mason - Scalia) is guest-blogging at Volokh Conspiracy about his article Dobbs and the Holdings of Roe and Casey (Georgetown Journal of Law & Public Policy, Vol. 20, No. 1, 2022, forthcoming).  Here are his initial posts:

Dobbs and the Holdings of Roe and Casey: Roe and Casey—reaffirming, overruling … and rewriting

Dobbs and the Holdings of Roe and Casey: Roe, its judgment, and its reasons for decision

And here is the abstract of the article from SSRN:

The U.S. Supreme Court is currently considering the case Dobbs v. Jackson Women’s Health Organization. In Dobbs, the State of Mississippi has asked the Court to overrule Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). At oral argument, many of the Justices seemed to agree that Dobbs fairly presents the question whether Roe and Casey should be reaffirmed or overruled. At argument, however, Chief Justice John Roberts explored an alternative theory. In this exploratory theory, Roe and Casey entitle women only to a fair or meaningful opportunity to obtain abortions during pregnancy. Neither Roe nor Casey entitles women to obtain abortions, the theory suggests, up to the time when their fetuses are likely to be viable after birth.

This Article studies that exploratory theory with the two most relevant sets of legal doctrines. Because the theory raises questions about what Roe, Casey, and other previous abortion cases held, the Article summarizes general legal principles about precedents and judicial authority. Courts rely on these principles when they identify the holdings, reasons for decision, and obiter dicta from earlier decisions. Because Roe, Casey, and the other relevant decisions all considered overbreadth challenges to state abortion restrictions, the Article also summarizes the legal rules federal courts follow when they consider facial overbreadth challenges. The Article applies those two sets of doctrines to Roe, Casey, and 11 other subsequent cases in which the Court declared unconstitutional state pre-viability restrictions on abortion. In all of those cases, necessary to a judgment was this proposition of law: A state restriction on abortion violates the Fourteenth Amendment Due Process Clause if it restricts a substantial number of pre-viability abortions without justification. Neither Roe, nor Casey, nor any of the other 11 post-Roe and -Casey decisions invalidating pre-viability abortion restrictions can be interpreted as narrowly as they would need to be for the theory explored at oral argument in Dobbs to be convincing or faithful to the Court’s case law.

This Article helps make clear the choices presented in Dobbs. Justices may reaffirm Roe and Casey, and they may overrule those cases. Unless they depart drastically from standard legal rules about judgments and overbreadth, however, they cannot avoid that choice.

Though not directly concerned with originalism, the article and the situation in Dobbs pose important questions about the way originalism interacts with precedent.

Mitchell Berman Responds to Stephen Sachs' Article "Originalism: Standard and Procedure"Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Keeping Our Distinctions Straight: A Response to “Originalism: Standard and Procedure” (Harvard Law Review Forum (forthcoming 2022)) (17 pages) on SSRN.  Here is the abstract:

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees that the basic distinction Sachs highlights is important, but argues that it’s already well understood in the constitutional theory literature under different labels, such as the familiar distinction between theories of legal content and of adjudication, and the less familiar distinction between “constitutive” and “prescriptive” theories of constitutional interpretation. It argues further that, nomenclature aside, the distinction does not lend originalism the support that Sachs claims for it because we remain without good reason to believe that originalism is our constitutional standard.

Professor Sachs' article Originalism: Standard and Procedure, one of the most downloaded originalism articles of 2021, was published in the current issue of the Harvard Law Review (135 Harv. L. Rev. 777 (2022)).

I agree with Professor Berman's comment that we need "good reason to believe that originalism is [or, I would say, should be] our constitutional standard" but I think there are some good reasons.

The Year in Review: Originalism Articles of 2021 (Part 2) – The Top 25 Most Downloaded New PapersMichael Ramsey

This post continues the retrospective on originalism scholarship in 2021 -- see here (books)and here (articles part 1) for the first two posts.  These are the 25 most downloaded originalism/textualism-oriented new papers posted on SSRN in 2021, as featured on the Originalism Blog.  (Here is the list for 2020).

Of course this measure has substantial limitations, including that it favors papers posted early in the year; that not all important papers are posted on SSRN; and that number of downloads does not really prove anything about a paper except how many times it was downloaded.  But with those caveats, here's the list:

1. Gerard Magliocca (Indiana -- McKinney), Amnesty and Section Three of the Fourteenth Amendment

2. Stephen Sachs (Harvard), Originalism: Standard and Procedure

3. Kevin Tobia (Georgetown), Brian Slocum (McGeorge) & Victoria Nourse (Georgetown), Statutory Interpretation from the Outside

4.  David Pozen (Columbia) & Thomas Schmidt (Columbia), The Puzzles and Possibilities of Article V

5.  Mitchell Berman (Penn) & Guha Krishnamurthi (Oklahoma), Bostock was Bogus: Textualism, Pluralism, and Title VII

6.  Orin Kerr (Berkeley), Katz as Originalism

7.  Judge Andrew Oldham (U.S. Court of Appeals, Fifth Circuit), Official Immunity at the Founding

8.  Evan Bernick (Northern Illinois), Eliminating Constitutional Law

9.  James Cleith Phillips (Chapman) & Josh Blackman (South Texas), Corpus Linguistics and Heller

10.  Aaron Tang (Davis), The Originalist Case for an Abortion Middle Ground

11.  Matthew Seligman (Yale), The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes

12.  Samuel Bray (Notre Dame) & Paul Miller (Notre Dame), Getting Into Equity

13.  Seth Barrett Tillman (NUI Maynooth), Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Very Short Response to Professor Cass Sunstein (and Others)

14.  Jed Handelsman Shugerman (Fordham), 'Vesting': Text, Context, Dictionaries, and Unitary Problems

15.  Frederick Schauer (Virginia), Unoriginal Textualism

16.  Matthew Schafer (Fordham), In Defense: New York Times v. Sullivan

17.  Seth Barrett Tillman (NUI Maynooth) & Josh Blackman (South Texas), Offices and Officers of the Constitution, Part I: An Introduction

18.  Jack Beermann (Boston University) & Gary Lawson (Boston), The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes

19.  (tie) Aaron Nielson (BYU) and Christopher Walker (Ohio State), Congress's Anti-Removal Power

19.  (tie) Laurent Sacharoff (Arkansas), The Broken Fourth Amendment Oath

21.  Evan Bernick (Northern Illinois), Constitutional Hedging

22.  Eliza Sweren-Becker (Brennan Center) & Michael Waldman (Brennan Center), The Meaning, History, and Importance of the Elections Clause

23.  Joseph Blocher (Duke) & Mitu Gulati (Virginia), Navassa: Property, Sovereignty, and the Law of the Territories

24.  David Kopel (Independence Institute) & George Mocsary (Wyoming), Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii

25.  Joel Alicea (Catholic), Liberalism and Disagreement in American Constitutional Theory

Peter Wallison on the Supreme Court and the Administrative StateMichael Ramsey

At Law & Liberty, Peter Wallison (AEI): The Supreme Court Confronts the Administrative State. From the introduction:

It could be a coincidence—or it could foretell an historic Supreme Court term. The Court has now accepted two cases for this term that could threaten the essential legal underpinnings of the federal administrative state.

The first is American Hospital Association v. Becerra, in which the plaintiff questions the Chevron doctrine—a rule fashioned by the Supreme Court itself in 1984 that requires lower federal courts to defer to administrative agencies’ interpretation of their delegated authorities, where the statute is ambiguous and the agency’s decision is “reasonable.” Under this rubric, lower federal courts have given administrative agencies wide leeway to interpret the scope of their authority. 

The second case, which has received less attention, is West Virginia v. Environmental Protection Agency, in which the state is challenging EPA’s authority to impose restrictions on the emission of greenhouse gases under the Clean Air Act. West Virginia has a number of objections to the EPA’s actions, but one of them raises a constitutional issue known as the nondelegation doctrine, which was last invoked by the Supreme Court in 1935. This holds that under the Constitution’s separation of powers, Congress may not delegate any of its legislative authority to agencies of the executive branch. Accordingly, if Congress gave so much discretion to the EPA in the Clean Air Act that the agency could create what was in effect a new law—without congressional authorization—the Act would violate the nondelegation doctrine.

Thus, while Chevron has largely been used to expand the authorities of administrative agencies over time—with the courts providing generous readings for agencies’ claims of authority under ambiguous laws—the nondelegation doctrine has the potential to narrow the range of administrative activity by requiring Congress to enact more tightly drawn legislation. If the Court should weaken or eliminate Chevron, and re-invigorate the nondelegation doctrine, it would mean—in a single term—a significant narrowing of administrative state authority and an historic shift in the Court’s jurisprudence away from precedents initially established in and after the New Deal.

Prior cases have laid the groundwork for changing the Court’s view of both doctrines. ...

Adding to this, of course, are the vaccine mandate cases argued at the Supreme Court on Friday.

Although often described, especially by right-leaning commentators, as a problem of the administrative state, I see these issues as centrally concerned with executive power.  Recently there has been much academic writing about constraints on executive power, in particular constraints on the President's ability to remove executive officers.  But that is largely a sideshow (albeit an interesting one to me).  The modern President's power is not materially limited by having a handful of agency heads protected from at-will removal, nor is that power greatly enhanced by the Court finding some of these protections unconstitutional.  The modern President's great power stems largely from (a) Congress' broad delegations of policymaking authority to executive agencies and (b) Presidents' willingness to read these delegations extremely aggressively (and courts' acquiescence in these broad readings).

Both of these factors can be seen in the two cases mentioned in the linked essay, as well as the vaccine cases.  None of them involves (as Justice Black famously put it in the Youngstown case) the President "direct[ing] that a congressional policy be executed in a manner prescribed by Congress."  All of them involve instead (again in Black's words) the President "direct[ing} that a presidential policy be executed in a manner prescribed by the President."  The latter, Black said in Youngstown, is unconstitutional:  "The Constitution limits [the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." But the modern President (with an assist from Congress and the courts) routinely circumvents Youngstown by pointing to a vague statute arguably conveying almost unlimited policymaking discretion.

How much the Constitution's original meaning can be deployed to address this situation is a different question, and (as the essay says) an important one for this year at the Court.