Does Hamilton’s 1793 Treasury Report Mean that POTUS Does not Hold an “Office Under the United States”?
Andrew Hyman

For several years, Professor Seth Tillman and some other distinguished scholars have argued that a 1793 Treasury Department Report by Alexander Hamilton supports the conclusion that the President of the United States does not hold any “office under the United States.”  This would exempt the President from certain provisions of the Constitution, including the Emoluments Clause and the Ineligibility Clause.  I would like to briefly explain why I think the Hamilton Report does not support that conclusion.

The Senate asked Hamilton to provide financial information about “every person holding any civil office or employment under the United States.” Hamilton’s response did not list the President.  This Report was written years after the Constitution had been ratified, and it mentioned neither the presidency nor the Constitution, but for the sake of argument let’s suppose that the 1793 Report ranks with the Federalist Papers as an important tool for interpreting the Constitution.

There are many reasons why Hamilton might have excluded the President, but perhaps the most compelling reason is that the President is not simply a “civil officer.”  Rather, his office is both civil and military, and therefore Hamilton very plausibly could have felt that it is not proper to call POTUS a “civil officer,” which is the category of people the Senate asked about.

There is further support for this view in the constitutional text: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Why “all civil officers” instead of “all other civil officers”?  Obviously, the word "other" was omitted because the President and Vice-President are not civil officers, nor military officers, but rather are hybrid officers having both civil and military characteristics.  This was no accident.  As Professor Tillman has written, “in early drafts of the impeachment clause, the word ‘other’ immediately preceded ‘civil officers,’ but it was taken out by the Committee of Style.  Thus, the absence of the word ‘other’ from the final draft does not appear to be accident or happenstance.”

Professor Brian Kalt is clearly correct that, “The Constitution distinguishes the President and Vice-President from civil officers” (n. 17).  And civil officers are the people the Senate asked Hamilton about (in addition to asking about “employees” who presumably were at a lower level).  It is true that a couple people during the constitutional convention did refer to the POTUS as a civil officer, but to my knowledge Hamilton did not, and the Constitution itself indicates otherwise.

I am not suggesting that the President is not an officer under the United States, of course he is.  The Congressional Research Service has explained: “As a textual matter, both the Constitution itself and contemporaneous sources refer to the Presidency as an ‘Office.’ The President receives compensation for his service in office (that is, ‘Profit’) and is tasked with many important constitutional duties (that is, ‘Trust’).”  So the presidency is a public office, an office of profit and trust, and an office under the United States.  But it’s not wise to call it a civil office, which would imply that it’s not a military office.  Hamilton apparently concurred, judging by his 1793 Treasury Department Report.

In 1799, Congressman Robert Goodloe Harper (later a U.S. Senator from Maryland), stated the obvious:

[A]s the duties of the President are not confined to the civil or military department, but comprise both, it follows, that his office is neither exclusively civil, nor exclusively military, but includes both characteristics; so that he would not have been included in the designation "civil officer," and it was necessary to name him expressly, which is accordingly done. The same reasoning applies to the Vice President, who is also expressly named.

Alexander Hamilton very likely did not report back to the Senate about the finances of the president and vice-president because he did not think he had been asked about it.  And why would Hamilton have thought that he hadn't been asked about it?  Maybe Hamilton thought the Senate was simply being deferential to the top executive officers, or perhaps Hamilton thought the Senate was satisfied with Washington’s earlier promise during his first inaugural address not to take any salary.  In any event, the 1793 Report does not say anything useful about whether the President is an officer (of some kind) under the United States.


Elector Discretion: A Response to John Vlahoplus
Rob Natelson

John Vlahoplus' new essay, Bound Electors (reported here) criticizes the Tenth Circuit’s holding in Baca v. Colorado Dep’t of State. In that case, the court held that presidential electors have the constitutional prerogative, even in the face of state direction, to exercise discretion in casting their votes.

Vlahoplus believes state governments may dictate to presidential electors how they vote, and he marshals some new and interesting material.

My principal difference with his analysis is that I think he radically understates the amount and quality of the originalist evidence supporting elector discretion.

One way in which he does so is by simply not addressing, or even mentioning, much of that evidence. Consider, for example, his terse summary of my essay on the subject: “Rob Natelson argues that Electors are free to vote as they please because a process under the 1776 Maryland Constitution utilized electors, the constitution required those electors to swear that they would vote freely, and therefore the public would have expected Electors to vote freely.”

From that, one might have thought that I cited the mere existence of the Maryland practice as probative. But I also pointed out that the Maryland model was much discussed among the framers and admired by at least some of them.

From Vlahoplus’ summary, moreover, one might have thought also that the Maryland model was the only scrap I offered. But that essay also discussed (1) the indirect election system prevailing in Scotland, home of James Wilson, one of the framers who promoted indirect election, (2) Hamilton’s and Jay’s commonly-cited numbers in The Federalist, (3) comments by framers Roger Sherman, John Dickinson, and William Davie; (4) ratifying convention remarks by James Iredell, Thomas Thacher, and Increase Sumner, and (5) various public essays. Aside from the ambiguous comment by Sumner, all supported the conclusion that presidential electors may exercise discretion.

A second difficulty is Vlahoplus’ classification of many of the Founders’ statements as mere “expectations.” Expectations, we are told, don’t count. (I’ve noticed that some anti-originalists resort to the same technique of classifying statements as expectations and then dismissing them.) Now, one can argue about how many of the relevant comments are pure statements of expectation. Certainly not all of them are. But more importantly statements of expectation can serve as evidence of contemporaneous fact—a purpose for which historians often use them.

For example, suppose that in 1787 James Madison said, “I expect that when Jane comes in, she’ll open the window.” That’s not very strong evidence that Jane did open the window. But it’s pretty good evidence that (1) there was a window, (2) it could be opened, and (3) there was a Jane.

Similarly, when Hamilton stated in The Federalist that he believed electors would use “information and discernment,” that is not very good evidence that future electors did in fact use information and discernment. But it is quite good evidence that Hamilton and his readers believed the Constitution empowered electors to do so.

Vlahoplus believes the probative value of Hamilton’s statements not very great, in part because

. . . it has been suggested that Hamilton’s personal ambition drove his vision of wise Electors acting independently. He was probably the least popular of the Founders. The Federalist Papers were inconsistent advocacy pieces pitched to differing constituencies to achieve ratification. They laid the groundwork for self-serving interpretations of the Constitution, much like statements in the legislative history of congressional statutes today.

I fully agree that constitutional commentators often rely too much on Hamilton. This is not because he was unpopular, but because his views were on the extreme “nationalist” end of the spectrum, and he had little influence on, and little resonance with, the federal-state balance struck by the finished Constitution. These factors counsel strongly against relying on, for example, such post-ratification statements as his then-idiosyncratic interpretation of the General Welfare Clause in his Report on Manufactures (Dec. 5, 1791).

The fact remains, however, that Hamilton was instrumental in persuading skeptical New Yorkers to ratify the Constitution, and he did so in part through representations of the document’s meaning. His writings in The Federalist, like his speeches at the New York ratifying convention, are of this kind. As such they are useful in determining how the Constitution was represented to New Yorkers and, therefore how they understood it (or, if you prefer, what the original public meaning was). Moreover, because The Federalist was used as a pro-Constitution handbook for the Constitution’s advocates in Virginia, North Carolina, and Rhode Island, Hamilton’s contributions had a role in shaping the public understanding (and public meaning) in those states.

Those of us concluding that electors may exercise discretion point to contemporaneous definitions of “elect,” “elector,” “ballot,” and “vote.” Vlahoplus thinks we rely on definitions that are too “thick.” But discretion was not some chance accretion to the meaning of the words “elect” and “elector.” It was core to the dictionary definitions of those words. And although  Vlahoplus is correct that electors might corruptly sell their votes, the fact that they could do so shows that they could offer something for sale.

As for the term “ballot:” Its contemporaneous meaning as a secret ballot is too well attested to be brushed aside.

There is much evidence on this subject that Vlahoplus does not address at all. I’ve already mentioned statements by the Founders and public essayists—including highly influential figures such as John Dickinson and Roger Sherman. More serious, however, is his omission of the legislative history of the 12th amendment—the controlling constitutional text today. That history includes a massive number of statements reconcilable only with the conclusion that electors could exercise discretion. The following, culled from our Independence Institute amicus briefs in the Baca case, is a sample from a long recital:

The congressional debates are filled with comments and phases showing that the members of Congress who proposed the Twelfth Amendment took for granted that electors could exercise discretion. Thus, members referred to presidential candidates being “intended by the electors,” [8 Annals of Congress] at 735 & 739 (Rep. Holland); “preferred by the electors,” id. at 740 (Rep. Holland); and “selected by the Electors.” Id. at 696 (Rep. Purviance). Cf. id. 535 (Rep. Hastings, “the Electors . . . will be induced”). Even Rep. Clopton, a professed advocate of direct popular election, id. at 422, used similar language acknowledging that the electors would choose. Id. at 491 (“intended . . . by a majority of the Electors”) & id. at 495 (“contemplated for President by any of the electors”).

Rep. Elliot referred to the risk of introducing “a person to the Presidency, not contemplated by the people or the Electors.” Id. 668. Rep. Thatcher worried that “those Electors who are not devoted to the interest of the ruling faction will exercise a preference of great importance, they will select the candidate least exceptionable.” Id. at 537. Senator Pickering even urged electors to change their recent voting habits, id. at 198, something he clearly assumed they were free to do. See also id. at 718 (similar exhortation by Rep. Goddard).

At least one member, Senator Hillhouse, suggested that as an alternative to a presidential run-off in the House of Representatives, electors be re-convened to vote again. Id. at 132-33. This suggestion assumes, of course, that electors could debate, re-consider, and change their votes . . .

So much for omitted evidence. I have one comment about proffered evidence—that is, Vlahoplus’ quotation from James Madison’s Federalist No. 39: “The immediate election of the president is to be made by the states in their political characters.”

Reading this statement through a modern lens, Vlahoplus can be excused for assuming that “the states in their political characters” means “state governments.” When considered in its context through an 18th century lens, that is not so obvious.

The word “character” in Latin usually means a mark or brand (both the branding instrument and the result). As is so often true of 18th century discourse, the English usage had not flowed far from the source. Typical is the definition in Thomas Sheridan’s 1789 dictionary:

A mark, a stamp, a representation; a letter used in writing or printing; the hand or manner of writing; a representation of any man as to his personal qualities; an account of any thing as good or bad; the person with his assemblage of qualities.

In other writings—indeed, as we shall see, in the passage immediately following—Madison employed the word “character” in ways appearing in the dictionary definition. But his phase “states in their political characters” is anomalous. Did Madison mean state governments? Or did he merely mean that representatives of the state political societies (i.e., the electors) would choose the president? (It was not uncommon for the Founders to use the phrase “election by” when they meant “indirect election by”).

Let’s examine the context. Federalist No. 39 is Madison’s recital of how the new government would be partly national and partly federal. In the quoted portion he referenced federal characteristics. The entire passage is as follows:

The executive power will be derived from a very compound source.  The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.

Thus, the federal features Madison identified are (1) votes are allotted among states and (2) in runoffs the Representatives were to vote as state delegations.

What is pretty clear is that this is really not a statement about the discretion of electors, but about how the presidential election system is balanced between federal and national features. What is much less clear is exactly what Madison’s odd phrase “political character” was supposed to mean. Because it is ambiguous (like the statement of Increase Sumner) it really doesn’t provide weight to either side of the scale.

But the pro-discretion side of the scale is already very full and very heavy. I don’t know if I would classify the Tenth Circuit’s opinion in Baca v. Colorado Department of State as a “masterpiece.” But based on the originalist evidence, the court certainly reached the correct result.


Originalists on Adrian Vermeule on Originalism
Michael Ramsey

At Law & Liberty, Lee Strang: Rejecting Vermeule’s Right-Wing Dworkinian Vision.  From the introduction: 

Professor Adrian Vermeule’s recent essay on originalism and the common good, “Beyond Originalism,” is thought-provoking in the best way. Professor Vermeule counsels American conservatives that “originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation,” one that he labels “common-good constitutionalism.” This admittedly Dworkinian approach would empower judges to “imagine a substantive moral constitutionalism” that they read into “the majestic generalities and ambiguities of the written Constitution.” They might further derive this moral constitutionalism from “the general structure of the constitutional order and. . . the nature and purposes of government.”

Professor Vermeule’s approach is one that a reasonable legal system could select to pursue the common good. But there is nothing in Professor Vermeule’s essay to suggest that it is the only reasonable approach to securing the common good. More importantly, there are sound reasons to believe that the United States, through its written Constitution, chose a different—also reasonable—approach to securing the common good, one that has the support of the natural law tradition in which inanimate (i.e., positive) law, explicated through technical means, is the most reasonable way to secure the common good. Originalism argues that the United States Constitution employs a system of inanimate, relatively determinate constitutional law to achieve the common good.

There are many potential criticisms of Professor Vermeule’s thesis; in this brief essay, I argue that the concept of the common good itself, at least as it has been pursued in the United States, contradicts Professor Vermeule’s core claim. In short, the common good of the United States, both as a matter of distributive justice (including what offices have legal authority to implement the Constitution and in what circumstances) and as a matter of the rule of law, requires following the Constitution’s original meaning, even when that meaning does not lead to normatively attractive outcomes in some (perhaps many) instances.

At Volokh Conspiracy, Keith Whittington: Common Good Constitutionalism?  From the conclusion:

[W]hat's interesting is how [Vermeule] evaluates an approach to constitutional law. A constitutional philosophy has "utility" to the extent that it advances his policy objectives, and does not to the extent that it gets in the way of constructing the ideal policy regime.

Of course, this is an extremely familiar way of thinking about constitutional jurisprudence. It has been the dominant way that the political left has thought about constitutional jurisprudence for decades. It has had adherents on political right as well, but originalism as a philosophy of constitutional jurisprudence resisted those kinds of constitutional projects on both the left and the right and resisted that approach to justifying the exercise of judicial review.

Originalists would urge legal conservatives not to evaluate their approach to constitutional law by the standard of how well it facilitates their getting the policy outcomes that they want. As Vermeule recognizes, originalism is not the friend of results-oriented jurisprudence. Originalists made limited headway in trying to persuade those on the left that results-oriented jurisprudence was not the best path the country should be pursuing. Originalists might have to spend more time trying to persuade conservatives on that point as well.

Winter is coming.

And at NRO, Dan McLaughlin: ‘Common-Good Constitutionalism’ Is No Alternative to Originalism.  From the core of the argument:

If the problems of Vermeule’s approach to constitutional law sound familiar, they should. Vermeule is undoubtedly right that “all legislation is necessarily founded on some substantive conception of morality,” but his vision of a state in which an unconstrained governing elite mandates its vision of the common good through the mechanism of law is the mainstream interpretive method of nearly all of the legal academy and Democrat-appointed judges. Although Vermeule differs from judicial progressives in the content of his values, he shares their devotion to a moralizing judiciary unconstrained by the people it rules. His cynical rejection of neutral principles of law makes him a neat fit with his left-wing Harvard Law faculty colleagues. And conservatives should oppose him for the same reasons we oppose them.

Indeed, it is not hard to find analogues to Vermeule on the other side of the partisan and ideological divide; if anything, it is hard to find people who are not analogous. That is precisely the problem. The entire notion of the “living constitution” was invented by Woodrow Wilson as justification for a “Darwinian” evolution of the fittest in society to govern everyone else. Like Vermeule, Wilson placed great faith in the elites of the administrative state to instruct their inferiors. Justice Stephen Breyer, hardly a marginal figure, wrote an entire book on how his vision of the common good should inform the Supreme Court’s reading of the Constitution.

And in conclusion:

What recommends originalism and the rule of written law is the same insight that recommends democracy, federalism, and free markets: They not only offer appealing results in the short run, but also offer a trustworthy process for reaching good results in future circumstances we cannot foresee.

Originalism has a long pedigree in American law, notwithstanding the fact that it was largely forgotten by the 1960s. That history gives it weight and force in our society, and should offer it the respect of those who value tradition. Alexander Hamilton argued that judicial review required strict fidelity to the constitution’s text. Abraham Lincoln was an originalist, and it is striking, if you re-read the debates over the Dred Scott decision, the extent to which all sides of the argument over whether black Americans could be citizens advanced their case in terms of what was understood at the time of the Founding. Vermeule may find Hamilton and Lincoln to be obsolete, but the structures they built have endured while the Catholic monarchies of their age have been swept away by stronger historical forces.

Vermeule ... would trade the secure guarantee of written law for a pure contest of strength and will. And that is a contest conservatives should neither expect nor want to win.


More on Vermeule's "Beyond Originalism," with a Response from Calvin TerBeek
Michael Ramsey

Andrew Hyman's post yesterday mentioned Adrian Vermeule's recent essay in The Atlantic, Beyond Originalism.  Because of the essay's importance, I thought it would be worthwhile giving some additional excerpts.

Professor Vermeule argues: 

[O]riginalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.


[C]onservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.

Specifically, a proposal for "common good constitutionalism":

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.

To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “moral readings of the Constitution.” Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.   

At A House Divided, Calvin TerBeek has this sharp response: The Maistre of Harvard Yard.  From the core of the argument:

Adrian Vermeule has long occupied an unusual position within the conservative legal movement. Though a thorough-going conservative, this former Scalia clerk and administrative law professor at Harvard often made sport of “originalism” as a thin guise for standard-issue GOP legal policy goals. Vermeule styled himself a serious scholar and originalism, for him, wasn’t serious. And there he may have sat, pumping out law review articles on administrative law and Schmittian-inflected monographs on executive power. But after his high-profile conversion to a traditionalist Catholicism in 2016, Vermeule has transformed himself into a full-blown public intellectual, throwing punches at liberals and (in his view) benighted conservatives alike. Now, with his recent constitutional manifesto in the Atlantic, intentionally meant to cause a stir, Vermeule has very publicly upped the ante. Shoving “originalism” to the side (it has “outlived its utility”), Vermeule’s “Common-good constitutionalism” is a call for a Catholic integralist Constitution with “a powerful presidency ruling over a powerful bureaucracy.” In short, this is a Catholic authoritarian governing system enforcing its particularized vision of the “common good.”

And further: 

The central cleavage is abortion. ... With a five vote ideological majority on the Supreme Court now in hand and the lower courts well-stocked with young turks filled with constitutional certitude, for cultural conservatives [merely returning abortion to the states] is no longer good enough. Social conservatives have long paid public fealty to originalism, but their central political goal has always been to ban abortion—simply returning the politics of abortion to the states does not ensure complete success. Originalism’s focus on text and history left little room for a “right” to life based on constitutional language.

Fair enough.  But Professor Vermeule's manifesto should send a message (and a warning) to commentators and scholars on the left.  Originalism is, as I have argued here before, an intermediate position.  The lack of a substantial element of conservative living constitutionalism in legal scholarship obscured this point and allowed center-left commentary to portray originalism as a right wing position.  But Vermeule's "common good constitutionalism" -- conservative social values that are as unconstrained by text and history as is the left's living constitutionalism -- is the right wing position.  Originalism constrains it, as it constrains other versions of living constitutionalism.  So long as conservative living constitutionalism was not a realistic position, the left didn't see the value in this constraint.  If Professor Vermeule's "manifesto" gains traction, perhaps they will begin to.


Recent Opinions From Harvard Professors Goldsmith and Vermeule
Andrew Hyman

A few days ago, Harvard Law School Professor Jack Goldsmith posted a piece at the Lawfare Blog arguing that the presidential succession statute is vulnerable to constitutional challenge, which he says is enough reason for Congress to amend it.  I agree. The piece is titled "A Presidential Succession Nightmare" and is co-authored with one of his students, Ben Miller-Gootnick.  
The succession statute, which dates back to the Truman Administration, ostensibly puts the leaders of the House and Senate into the line of succession, whereas the Constitution says, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."  One might suppose that the leader of the House or Senate could resign from the House or Senate to assume the presidency, but the Constitution suggests otherwise ("such Officer shall act" as President). Alternatively, one might suppose that the leader of the House or Senate could resign from ordinary membership in the House or Senate, while retaining the leadership position, which raises the old question of whether the House or Senate could pick a non-member to be its leader; I doubt it, because the Constitution provides that, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." It would seem absurd for the House or Senate to have a leader who is not sworn to uphold the Constitution. Anyway, no matter who is right about succession, it could be disastrous to have a succession struggle in the United States that the judiciary might not feel equipped to resolve.    
Meanwhile, Harvard Law Professor Adrian Vermeule has a piece up at The Atlantic suggesting that the philosophy of constitutional originalism was useful, but now conservatives and/or Republicans should emerge from their defensive crouch and adopt a better philosophy of constitutional interpretation.  The essay is titled "Beyond Originalism."  I disagree with Professor Vermeule, and I'll just note here two reasons why.  First, he says that the theory of originalism was "initially developed in the 1970s and ’80s" but this seems way off the mark, as explained recently at this blog by Robert Natelson who wrote: "Anti-originalists sometimes contend that originalism is a creation of modern conservatives. History renders this claim risible."  Natelson provides good evidence.  Another big disagreement I have with Professor Vermeule is when he says this:
The general-welfare clause, which gives Congress “power to … provide for the common Defence and general Welfare of the United States,” is an obvious place to ground principles of common-good constitutionalism.
That sounds very persuasive, until one looks at what lies beneath Professor Vermeule's ellipsis, and discovers that the Clause actually gives Congress this:
Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States
Congress obviously has no general power to provide for the general welfare. If it did, then the states would have no sovereignty, but rather would be instruments of Congress. Maybe this point of mine will become clearer from the following examples of how not to use an ellipsis while quoting the U.S. Constitution.... “[I]ntoxicating liquors….shall not be denied … by the United States or by any State on account of age….” “The power[]….of the President….shall not be questioned….” “The Senate shall have the sole Power to try….sex.”

And, here's one more, that's especially applicable to the incumbent president: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been….tried by….the Senate….”

Andrew Koppelman: Why Do (Some) Originalists Hate America?
Michael Ramsey

Andrew Koppelman: (Northwestern University School of Law) has posted Why Do (Some) Originalists Hate America? (42 pages) on SSRN.  Here is the abstract:

Imagine a regime whose fundamental law is only to be found in ancient archives, whose mysterious contents take years to unearth, layer by layer. Each new discovery brings about a revolution, as large bodies of established law are unexpectedly discarded and others, previously rejected, spring back into life as the scholars revise earlier conclusions. The operations of government are in constant confusion and disarray. And this state of affairs is likely to persist indefinitely.

That doesn’t sound attractive, does it? But that is where some prominent strands of modern originalist constitutional theory would lead us. This essay explores the methodological steps, each of which in themselves had a certain plausibility, that brought us here.

Well, it doesn't sound so bad to me, at least not compared with a system in which 5 lawyers decide what our fundamental law is based on what seems best to them at the time (if we are to have a battle of straw men).

UPDATE:  At Legal Theory Blog, Larry Solum has a brief observation on the article with which I entirely agree.


Eric Segall on Stephen Griffin on Optimistic Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Optimistic Originalism by Professor Stephen Griffin: A Must Read (commenting on this article by Professor Griffin).  From the introduction:

One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and harshly discriminate against women, such as Illinois' law barring women from being attorneys which the Supreme Court upheld in 1872. Yet, few Originalist scholars today are willing to live with those results (and it is unlikely any judge could be confirmed who took those positions). This problem has led to what Griffin accurately describes as "Optimistic Originalism."

Thoughtful and usually careful scholars Michael McConnell and Steve Calabresi are two among many whose historical work Griffin politely but convincingly demonstrates is more optimistic than accurate. McConnell wrote the seminal scholarly article arguing that Originalism and Brown v. Board of Education could go hand in hand. There have been many rebuttals to that claim by other distinguished scholars and Griffin collects those, adds his own original critique to that work, and shows persuasively that one must, in fact, pick sides--one can be a public meaning Originalist, or one can be a supporter of Brown, but one can't be both.

Griffin points to a host of other problems with how public meaning Originalists have looked at historical evidence to support their claims, and argues the following:

From their [public meaning Originalists] point of view, everyone who participated in the debates in Congress, indeed possibly everyone who lived in the nineteenth century, could have misunderstood their own law. I suggest we should be deeply uneasy about rendering irrelevant so much of the actual deliberation that occurred throughout the Civil War and Reconstruction. We should be uncomfortable with denying the reality of the War, so to speak. We should think about the implications of giving ourselves permission to bypass the way history actually happened. Doing this arguably denies us the explanatory and normative purchase that comes with appreciating the genuine difficulty of the constitutional questions that troubled nineteenth-century America. In approaching legal meaning in this way, public meaning originalism makes the fraught process of constitutional change disappear.

Griffin argues throughout the article that public meaning Originalists focus too much on text and not enough on historical context to support their arguments. The practitioners of public meaning Originalism fail to "consult the self understanding of the participants who enacted the amendments, " and thus "take on board an implausible set of meanings."

The reason that public meaning Originalists largely ignore the subjective understandings of the people living in the 19th century is that numerous academic Originalists dropped original intent originalism after a series of devastating critiques launched at it by scholars like Jefferson Powell and Paul Brest. But by minimizing and at times ignoring what people at the time believed the Fourteenth Amendment meant, Griffin persuasively argues public meaning Originalists simply get the history and context of that Amendment wrong. 

I agree that Professor Griffin's article is an important challenge to originalism and that it fairly critiques some versions of originalism as they contend with the 14th Amendment.  As came out in the presentation of this article at the originalism conference in San Diego, however, it's odd that Professor McConnell ends up being a central target.  Although McConnell's methodology is nuanced, he is probably closer to an original intent approach than many contemporary originalists, and in any event he is not associated with the New Originalist school that heavily discounts the ratifiers' expected applications of their own text.  New Originalists do seem somewhat vulnerable to Professor Griffin's critique (that modern originalism exalts abstract text over history and context) but Professor McConnell's work is just the opposite -- it is heavily informed by history.  Perhaps Professor Griffin thinks that historical account is wrong, but that's a different critique from saying that originalists "largely ignore the subjective understandings of the people living in the 19th century."  There are versions of originalism that "largely ignore the subjective understandings of the people living [at the time of enactment]" but that is not a necessary principle of public meaning originalism, as practiced by Professor McConnell or by other central figures such as Justice Scalia.

Rather, I think there are two distinct schools of optimistic originalism.  One thinks that the (bad) intentions/expectations of the drafters and ratifiers of the 14th Amendment can be ignored or discounted because of a theory of the meaning of texts, which allows a (good) meaning to emerge irrespective of original intentions/expectations.  The second thinks that the supposed (bad) intentions/expectations of the drafters and ratifiers are overstated, and that in fact the drafters and ratifiers had bold aspirations that were part of the text but (it quickly became apparent) could not be realized in practice.  They may both be wrong, but they are wrong for different reasons.


Michael Morley: The Electoral College and the Constitutional Infirmities of the National Popular Vote Compact
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted The Framers' Inadvertent Gift: The Electoral College and the Constitutional Infirmities of the National Popular Vote Compact (Harvard Law & Policy Review, 2020) (60 pages) on SSRN.  Here is the abstract:

The National Popular Vote Compact requires member states to appoint presidential electors based on the outcome of the national popular vote in presidential elections. It enters into force when states holding a total of 270 votes in the Electoral College adopt it. The Compact has already progressed more than 2/3 of the way toward that goal. If it enters into force, the Compact will fundamentally change the nature of presidential elections without a constitutional amendment.

The Compact suffers from numerous constitutional flaws that have not been addressed in the literature. It violates the right to vote of member states’ citizens, by requiring those states to appoint presidential electors based on national vote tallies in which the votes of a member state’s eligible voters are diluted or even overwhelmed by votes of other states’ citizens who are ineligible to vote there. The Compact also violates the Equal Protection Clause as applied in Bush v. Gore because it requires all votes cast throughout the nation to be tallied together, even though they were cast under fifty-one different electoral systems, with materially differing voter qualification standards, voter registration and identification requirements, rules for counting and recounting ballots, and even policies on whether ranked-choice voting is permitted. The Compact also violates the Constitution’s implicit structural protections by undermining the special protection that the Electoral College affords smaller states and allowing a cabal of states to decide among themselves who the President will be, rendering other states’ electoral votes irrelevant. Finally, the Compact violates the Presidential Electors Clause by purporting to limit the inalienable plenary authority that the U.S. Constitution confers directly on state legislatures to determine the manner in which the state will choose its electors.

Even if the Compact were constitutionally valid, prudential and practical constraints counsel strongly against it. The Electoral College allows a presidential election to be resolved as a series of fifty-one discrete, parallel contests, rather than a single national election involving over 136,000,000 votes cast at thousands of locations. The Electoral College’s compartmentalization makes the system manageable, confines the scope of recounts or post-election litigation, and limits the consequences of any natural disasters, mistakes, or even fraud that may occur. Due to the geographical breadth of our modern nation and size of our population, the ability to elect a national leader through dozens of smaller, limited elections has become a largely inadvertent gift from the Framers that we should not squander.

Some of these arguments are more originalist than others.  The threshold originalist objection is that Article I, Section 10 says that "no State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State."  Modern law has watered down that clause somewhat in nonoriginalist ways (though not, in my view, enough to validate the National Popular Vote Compact); but for originalists (or even just textualists) the clause seems unavoidably conclusive.  Still, it's worth thinking about whether the Compact would be unconstitutional even if Congress approved it.

One further objection might be that the Compact, despite its name, is actually a treaty.  A different clause of Article I, Section 10 says that "No State shall enter into any Treaty" (presumably even with Congress' consent).  Though the Constitution thus recognizes a difference between treaties on one hand and agreements or compacts on the other, it is unhelpful on the difference.  I made some effort to work out the originalist difference in my long-ago article on executive agreements (where the issue also comes up) but that effort was not terribly satisfactory.


James Allan on Larry Alexander on Originalism
Michael Ramsey

James Allan (The University of Queensland - T.C. Beirne School of Law) has posted In Honor of a Simple-Minded Originalist (34 Constitutional Commentary 401 (2019)) (17 pages) on SSRN (reviewing Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (Heidi M. Hurd ed., Cambridge University Press. 2019).  From the introduction (footnotes omitted): 

In May, 2017 the Yale Law School’s Center for Law and Philosophy, together with the University of Illinois’ Program in Law and Philosophy, co-hosted a conference at the alma mater of Larry Alexander, Yale Law School. The conference brought together eminent legal scholars in the areas of criminal law theory, constitutional law theory, jurisprudence and moral philosophy. They were there to honor Professor Larry Alexander of the University of San Diego School of Law, and the result of that celebratory conference, or Festschrift (in these more globalist times), is this very recently published Cambridge University Press book. And my, oh my, it is a very good book indeed. I mean that not just in the sense of it being good compared to the usual book length edited collection of two dozen odd essays that have to be stuffed between two covers. I mean it is a really good book even by the standards of a well-crafted, sole-authored monograph. The editor, Heidi Hurd, has done an excellent job of fitting together into a coherent whole all 22 contributing authors’ essays or chapters, together with her own introduction and a last-word reply-to-everyone final say by Alexander himself.

The book has four Parts, namely (and in order) “Puzzles in Criminal Law,” “Problems in Constitutional Law,” “Perplexities in Jurisprudence,” and “Parodoxes in Moral Philosophy.” Given the usual interests of the readers of this journal, I will focus on just the middle two of those Parts, which in various ways elucidate important issues that bear on constitutional law...

... And most obviously that brings me to the question of constitutional interpretation because Larry Alexander is a leading proponent of originalism, of the old school (and these days very minority) intentionalist variety. As a self-described “simple-minded originalist,” Alexander embraces his position firstly as a thesis about how language is used, secondly as one about the nature of all interpretation, and thirdly in normative terms about why in interpreting we should defer to the intended meanings of the authors of legal texts—so it is all three for Alexander, semantic, pragmatic and normative....


Stephen M. Griffin: Optimistic Originalism and the Reconstruction Amendments
Michael Ramsey

Stephen M. Griffin (Tulane University Law School) has posted Optimistic Originalism and the Reconstruction Amendments (95 Tulane Law Review (2020-21, forthcoming)) (59 pages) on SSRN.  Here is the abstract:

This article critically examines the relationship of contemporary “public meaning” originalism to the legal achievement of the Reconstruction Amendments. It identifies an influential “optimistic” trend in recent originalist scholarship. A growing number of scholars contend that public meaning originalism can successfully address constitutional issues in light of the Reconstruction amendments. They argue that rightly understood, the Fourteenth Amendment’s original meaning aligns precisely with contemporary case outcomes, especially with respect to providing broad antidiscrimination rights to African Americans and women.

In this article I challenge originalism’s optimistic turn by examining it through a historical lens. Based on a wide-ranging review of recent historical scholarship, I argue that the theory of original public meaning in effect gives scholars permission to be optimists about Reconstruction by allowing them to sidestep its full historical context. This avoids the reality that relative to the point of view of Americans today, the constitutional law of the nineteenth century, which contained doctrines that both predated and outlasted Reconstruction, was unfortunate in many ways.

The argument presented in this article concerning the extent to which the Reconstruction amendments changed prior law has significance beyond the confines of the debate over originalism. The questions raised concerning the cogency of optimistic originalism suggests we should reassess the role of Reconstruction in contemporary legal scholarship. Many constitutional scholars are similarly “optimistic” about the Reconstruction amendments even though they do not count themselves as originalists. I have come to doubt whether the legacy of Reconstruction is as uniformly constructive as it is often represented – at least by legal scholars as opposed to historians.

I argue that the limits of Reconstruction become clearer once we focus on the question of whether there were constitutional reasons for its failure, reasons that were only later addressed, however incompletely, in the Second Reconstruction of the civil rights movement. My account suggests that if we are interested in understanding how constitutional law changes legitimately both inside and outside Article V, revisiting Reconstruction through the use of sound methods based in the practice of historians should steer us away from originalism and toward historicist theories of constitutional change.

The article proceeds in four parts. Because the debate between originalism and nonoriginalism is ongoing and multifaceted, Part I provides a necessary orientation to the debate and roadmap of the arguments and themes pursued in the rest of the article. Parts II and III are the heart of the article. Part II reboots the discussion of Reconstruction for legal scholarship by describing its historical context in a way that reveals its constitutional limits. I then use this context to critique prominent optimistic originalist accounts of the Fourteenth Amendment in Part III. I first present what I call the “sequencing argument,” detailing a problem that arises only for public meaning originalism. The remainder of Part III discusses two central issues for optimistic originalism: racial equality, especially with respect to school desegregation, and equal rights for women. Part IV draws on the historical discussion in the previous parts and the idea of “constitutional change as state building” to provide an overview of the failure of the First Reconstruction and show why the Second Reconstruction was legally necessary.

Professor Griffin presented an earlier version of this paper at the originalism works-in-progress conference at the University of San Diego in February (with Michael McConnell, an "optimistic originalist," as a commentator).


Andre LeDuc on Lawrence Lessig's "Fidelity and Constraint"
Michael Ramsey

Andre LeDuc (Independent) has posted Who is to Be Master: Accounting for How the Supreme Court Reads the American Constitution (35 Constitutional Commentary, forthcoming) (41 pages) (Reviewing Lawrence Lessig, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution) on SSRN.  Here is the abstract:

The review essay begins by analyzing four central elements in Lessig’s account of the fidelity and constraint of meaning and role, the nature of social meaning and understanding, and the nature and role of constitutional translation and two-step originalism. First, the introduction of the concept of fidelity to role fundamentally changes Lessig’s theory. Fidelity to role not only provides a second, important source of constitutional decision; the introduction of the concept of fidelity to role changes how the original concept of fidelity to meaning functions within Lessig’s theory. Second, the introduction of the concept of fidelity to role fundamentally changes the nature of Lessig’s constitutional theory, from a traditional, systematic, holistic account to a pluralist account. Third, this change, while probably the most creative and profound part of Fidelity and Constraint (and perhaps the most creative contribution to constitutional scholarship in the past several decades) is so profound that Lessig himself doesn’t fully appreciate what he’s done. Fourth, articulating how fidelity to role operates and how it is reconciled with our normative discursive social practice of constitutional law are the biggest challenges that Lessig’s theory faces. In particular, the role of role has to be articulated in a manner that makes it consistent with the discursive, normative, performative character of our social practice of constitutional law and harmonizes that role with the demands of fidelity to, and constraint by, meaning. After having constructed a constitutional theory, Fidelity and Constraint undertakes four central missions. The first goal of the book is to redescribe our constitutional history. Many of Lessig’s redescriptions are powerful and persuasive. My focus, however, is on Lessig’s second and third projects. The second goal the book sets itself is to account for the Janus-faced character of constitutional decision, free to determine how to translate historical text yet constrained by that text and the role of the Court in our Republic. Lessig reconceptualizes our understanding of the nature of constitutional interpretation and decision. He makes three principal claims about fidelity to meaning. First, constitutional decision should maintain fidelity to the meaning of the constitutional text. Second, it is the social meaning of the Constitution to which fidelity should be maintained. Third, the original social meaning should be translated into the context of the current case. Lessig’s reconceptualization of constitutional adjudication and constitutional decision is even more brilliant and exciting than Lessig himself understands. Lessig remains enmeshed in the conceptual web of our traditional thinking about some of these questions. I suggest how we might cut him free of some of these constraints. Lessig argues that the fidelity to meaning must be tempered by a parallel fidelity to role. How could judicial decision proceed without some attention to what the Court can do? Constitutional adjudication is a practical, not a theoretical exercise. The resulting pluralist theory that incorporates the duty of fidelity to meaning and recognition of the judicial role is powerful. It captures the contingency of our constitutional decision-making and doctrinal development and, at least tacitly, what judges do when they decide cases. It captures the ebb and flow of doctrine in ways that the express arguments of the opinions don’t always make explicit. Lessig’s express methodological analysis is potentially instructive, but its contribution is undercut because Lessig invokes two radically different methods and resulting theories: those of econometrics and those of ethnography. Lessig’s theory gets enmeshed in methodological claims that he cannot, and need not, sustain. On the one hand, he claims to offer a falsifiable, predictive account of our constitutional practice, along the lines of an econometric model. On the other hand, he characterizes his account as a thick description of constitutional decisional practice over time. The first claim is overambitious and indefensible; the latter characterization of the account is apt and instructive, capturing what we should aspire to in our accounts of our constitutional practice. Those two models fundamentally conflict. Lessig appears unwilling or unable to resolve the manifest conflict between the two methodological models he invokes (it’s not clear that there’s a resolution other than to choose one or the other). The predictive, falsifiable theories produced by the methods of econometrics are fundamentally different from the interpretive theories produced by the methods of social sciences like ethnography and history. The methodological dissonance creates some conceptual static in his account. Lessig doesn’t conceptualize his theory as a pluralist theory. His failure to so conceptualize his account of meaning and role leaves him insensitive to the full descriptive, explanatory payoff that his account of the Constitution delivers. He sees only that it fails to offer a holistic account of our historic constitutional practice and aspirations. More fundamentally, Lessig’s account of social meaning and translation is articulated in a representational account of our constitutional language and knowledge. Lessig sometimes seems to believe that propositions of constitutional law are made true by corresponding with the constitutional text. His account of fidelity to role is inconsistent with such a correspondence account of truth. Lessig should recognize and acknowledge the performative role of the Court’s decisions. For the Court, saying makes it so. Introducing references to truth and correspondence for propositions of constitutional law into the context of the Court’s decision practice obscures far more than it illuminates. The third project of Fidelity and Constraint, to compare Lessig’s account with Bruce Ackerman’s comprehensive high theory of popular constitutionalism, is also illuminating. Lessig refines Ackerman’s theory in a powerful way. Lessig revises Ackerman’s theory, retaining the anti-formal, popular constitutionalist kernel of that theory, while excising the more sweeping theoretical claims that are at odds with our constitutional practices. Lessig accounts for constitutional flux without Bruce Ackerman’s radical theory of a discontinuous popular constitutionalism exercised by the People in constitutional moments that effect constitutional change outside the four corners of the Constitution (and Article V, in particular). Lessig’s implicit rehabilitation of Ackerman’s account on the more modest lines Lessig defends, excluding the New Deal from the litany of constitutional moment and informal constitutional amendments, is persuasive. Lessig’s account is more persuasive because it is a pluralist account; it recognizes that there are multiple sources of decision and constraint that must be taken into account in decision. By showing how such arguments maintain fidelity to role and to meaning, Lessig tacitly explains why such practice has proven so compelling and resilient. I am skeptical that he has shown that it is justified. Fidelity and Constraint’s fourth mission is to justify and defend the nature of the constitutional practice that we have. This may be the least developed argument in the book; Lessig acknowledges how fast his argument goes. I am skeptical that we need to justify our constitutional practice within this practice any more than we need to justify the Electoral College within our political electoral practice or judicial review within our constitutional decisional practice. The bedrock of all is the practice they are a part of.


Another Look at Goldberg v. Kelly
David Weisberg

Question: If the majority opinion in Goldberg v. Kelly is dangerously misleading and the case was wrongly decided, does it follow that the due process clause in the 5th or 14th Amendment has no application whatsoever to welfare payments provided by government?  Prof. Ramsey’s recent post, and Prof. John McGinnis’ essay which is discussed in that post, would both support an affirmative answer.  I disagree.  I think Goldberg was wrongly decided because the State did provide adequate due process, not because due process is inapplicable to termination of welfare benefits.    

In constitutional interpretation, I consider myself a textualist, not an original-public-meaning originalist (for reasons set forth here and here).  Originalists sometimes (not always) ascertain the time-dated meaning of a word or phrase by examining the practices that were current when the word or phrase became part of the Constitution.  A classic example is Justice Scalia’s dissent in the same-sex marriage cases, Obergefell vHodges: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” 

I agree that Obergefell was wrongly decided, but Justice Scalia’s reasoning is flawed.  It is true that in 1868 no one doubted the constitutionality of States limiting marriage to opposite-sex couples, but it is equally true that, at that time, no one explicitly affirmed that States could constitutionally prohibit same-sex marriage.  The whole truth is that, in 1868, no one even imagined same-sex couples marrying each other, so no one thought either way about constitutional issues concerning such marriages. 

If a certain set of facts (such as same-sex couples desiring to wed) was not, so to speak, in the public domain when a constitutional provision was adopted, what does the absence of any reference in that provision to that set of facts tell you about how the provision applies to those facts?  Nothing.  This is very different from a case involving facts with which the drafters were clearly familiar at the time of adoption.  Justice Scalia himself appreciated that important difference. 

In his book, A Matter of Interpretation, he discussed Maryland vCraig, 497 US 836 (1990), where the Court (over Scalia’s dissent) held that the 6th Amend’s confrontation clause was not violated when, in a criminal case of alleged child abuse, the young child testified in a room from which the defendant was excluded, while the defendant watched on closed-circuit television.  Justice Scalia wrote (p. 44, emphases in original):

[N]o extrinsic factors have changed since [the confrontation clause] was adopted in 1791.  Sexual abuse existed then, as it does now; little children were more easily upset than adults, then as now; a means of placing the defendant out of sight of the witness existed then as now (a screen could easily have been erected that would enable the defendant to see the witness, but not the witness the defendant).  But the Sixth Amendment nonetheless gave all criminal defendants the right to confront the witness against them[.]    

Prof. Ramsey asserts, with respect to Goldberg, that “the key is that ‘property,’ given its original public meaning, did not include rights to future gratuitous payments from the government.  Thus the due process clause does not protect welfare payments.”  This reasoning incorporates the same flaw found in Scalia’s Obergefell dissent.  I accept arguendo that, in 1791 or 1868, no one understood ‘property’ to refer to welfare payments, but that is not because in either of those eras people drew a sharp distinction between ‘property’ and ‘welfare payments’.  Rather, it is because in those eras the notion of poor people receiving gratuitous payments from government was not given serious consideration at all; it wasn’t, to use another phrase, on anyone’s radar.  

If the due process clause does not protect welfare payments, it would follow that government could distribute such payments in an entirely arbitrary manner, and no person would have a legal remedy.  Suppose the government decided to exclude people whose last names begin with “W” from an otherwise general welfare scheme.  Or, perhaps more realistically, suppose some government decided to bar all gun owners (whether legal or not) from an otherwise general welfare scheme.  If these exclusions had no reasonable relationship to the purposes of the welfare scheme, would they nevertheless be exempt from challenge under the due process clause?

I would argue that the due process clauses prohibit government from depriving anyone of anything of value without due process of law.  In 1791 or 1868, before the welfare state, the valuable things government might take from a person were life, liberty or property.  Today, an individual loses something of value if the government terminates welfare benefits.  The drafters of the 5th and 14th Amendments never rejected the idea that welfare recipients should be provided some due process upon termination; they never thought about that question at all.

One might ask: if the above interpretation is correct, why doesn’t the 5th Amend read: “…nor be deprived of anything of value without due process of law...”,  and the 14th: “…nor shall any State deprive any person of anything of value without due process of law….”?  One always wishes that one’s interpretation of a constitutional provision is identical to the actual provision.  That of course is the virtue of the stance Profs. Ramsey and McGinnis take: ‘property’ did not encompass rights to welfare benefits, so due process does not apply.

Here I can only reiterate that, when the 5th and 14th Amendments were adopted, welfare benefits from government were not something that was widely discussed—perhaps that idea had not even been conceived.  Is there anything in the 5th or 14th Amendment, or in any other provision of the Constitution, suggesting that it is permissible for a government to arbitrarily grant or deny valuable benefits?  To my mind, the Constitution is manifestly designed to prohibit arbitrary governmental action and to ensure that governments act fairly and reasonably.  So, I think the better view is that some measure of due process must be provided whenever government deprives anyone of anything of value.  In Goldberg, the plaintiff had a colorable cause of action, but the due process provided by New York State was more than adequate.    


Allen v. Cooper: When is a Precedent "Extended"?
Michael Ramsey

In Allen v. Cooper, decided Monday, the Supreme Court held unanimously (with some concurrences) that Congress lacked constitutional authority to abrogate state sovereign immunity for claims of copyright infringement.  The opinion relied heavily on the Court's prior decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, which held that Congress lacked constitutional authority to abrogate state sovereign immunity for claims of patent infringement.  That's notable because a number of the Justices think (or likely think) Florida Prepaid was wrongly decided.

My view is that stare decisis, whatever its strengths in other contexts, does not (and should not) require courts to extend erroneous decisions to new circumstances.  (See here).  Specifically for originalists, I've suggested that a way to implement originalism in the face of the many nonoriginalist precedents we have is to (at minimum) not extend nonoriginalist precedents.  That approach is likely to contain nonoriginalist precedents, as new issues arise that can be resolved on originalist principles, building a larger body of originalist law.  (The article linked above applies this idea to the supremacy clause and federal common law).

But what counts as an "extension"? I acknowledge this issue in the article but don't really deal with it.  For those who think Florida Prepaid was wrong, Allen v. Cooper raises this question (though the opinions don't discuss it much).  (To be clear, I'm not saying Florida Prepaid was wrong on originalist principles, just assuming so hypothetically).  Specifically as to Allen v. Cooper, does the decision "extend" Florida Prepaid from patents to copyrights?  Or does Florida Prepaid decide that Congress lacks abrogation authority under the "Intellectual Property Clause" (as the Court calls it), thus covering both patents and copyrights?

My tentative view is that the question is whether there's some meaningful difference between patents and copyrights on this ground, and my tentative view is that the answer is no (so it's not an "extension") but I'm not terribly confident.

RELATED:  At Prawfsblawg, Richard Re has some further thoughts on Allen v. Cooper: Is “Stare Decisis … for Suckers”?


John Vlahoplus: Bound Electors
Michael Ramsey

Recently published,  John Vlahoplus: Bound Electors (106 Va. L. Rev. Online 1 (2020)).  Here is the introduction (footnotes omitted):

In a decision hailed as “a masterpiece of historical analysis and originalist reasoning,” the Tenth Circuit recently held that the Constitution prevents a state from binding its presidential electors to vote for the winner of the state’s popular vote. The Supreme Court has agreed to review and resolve this important issue of constitutional law before the 2020 presidential election.

Far from being a masterpiece, however, the Tenth Circuit opinion is a selective reading of incomplete linguistic, historical, and judicial materials. It ignores centuries of controversy over interpreting the law governing presidential elections. It reaches an overly broad conclusion—that “the states’ delegated role is complete upon the appointment of state electors”—that is inconsistent with constitutional history and practice. It ultimately relies on background political principles that were contested at the adoption of the Constitution and remain contested today.

In addition, the opinion utilizes the disputed interpretive technique of attributing thick meanings to constitutional words to divine substantive results from open-textured or scant constitutional provisions. This technique includes attributing prescriptively thick meanings to words—meanings that implicitly generate substantive rules of law missing from the Constitution’s express text. The Tenth Circuit finds an unwritten constitutional rule that states may not abridge the freedom of presidential electors largely because it finds that at the adoption of the Constitution the word “elector” meant someone who has freedom when voting.

This Essay critiques the Tenth Circuit decision. It furnishes historical support for an interpretation that state power over electors continues after their appointment and may include the power to bind them to the result of a popular election. It identifies issues with attributing thick meanings to constitutional terms. It suggests that the Supreme Court should reject the Tenth Circuit’s reasoning and develop a coherent theory of the roles of the people, the states, and the federal government in the electoral process in order to resolve the dispute. Finally, it suggests a number of questions that the Court might consider in developing that theory.


Anuj Desai: The Dilemma of Interstatutory Interpretation
Michael Ramsey

Anuj C. Desai (University of Wisconsin Law School) has posted The Dilemma of Interstatutory Interpretation (77 Wash. & Lee L. Rev. 177 (2020)) (92 pages) on SSRN.  Here is the abstract:

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court then treats the two statutes as though they were one. The doctrine thus permits judges to use ordinary doctrines of intra-statute interpretation across the two statutes. Determining that two statutes are “on the same subject” thus gives interpreters a powerful tool of interstatutory interpretation.

How, then, should courts determine whether to treat two statutes as one? If we frame the question through the lens of the two currently predominant theories of statutory interpretation — textualism and intentionalism—we can see that the traditional approach of asking about the statutes’ “subject matter” in the abstract makes little sense. For textualist judges who care about objective meaning, it makes more sense to engage in interstatutory cross-referencing if and only if the audience for the two statutes—the appropriately informed objective reader of the statutes—is the same. For interpreters who care about subjective legislative intent, interstatutory cross-referencing would generally be appropriate if and only if the two statutes were drafted by and came through the same Congressional committees.

Even if one rejects my proposed approaches, thinking about how to fit interstatutory cross-referencing into modern theories of statutory interpretation raises some confounding issues for those theories. In particular, it requires textualists to articulate explicitly who the audience for any given statute is, for without doing so, the textualist has no theoretical basis for determining when interstatutory cross-referencing is appropriate and when it is not. Thus, irrespective of the specifics of my proposals, looking at the ancient doctrine of in pari materia through the lens of modern theories of statutory interpretation sheds light on important questions about statutory interpretation that courts and theorists have largely ignored.


Orin Kerr: Decryption Originalism
Michael Ramsey

Orin S. Kerr (University of California, Berkeley School of Law) has posted Decryption Originalism: The Lessons of Burr (134 Harvard Law Review, forthcoming) (58 pages) on SSRN.  Here is the abstract:

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr’s private secretary if he knew the cipher to an encrypted letter Burr had sent to a co-conspirator. Burr’s secretary pled the Fifth, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment’s ratification. The Article presents that reconstruction, and it concludes by applying Burr’s lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.


New Book: "The Revolution in Freedoms of Press and Speech" by Wendell Bird
Michael Ramsey

Recently published, by Wendell Bird (Visiting Scholar, Emory): The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox's Libel Act (Oxford University Press 2020).  Here is the book description from Amazon:

This book discusses the revolutionary broadening of concepts of freedom of press and freedom of speech in Great Britain and in America in the late eighteenth century, in the period that produced state declarations of rights and then the First Amendment and Fox's Libel Act.

The conventional view of the history of freedoms of press and speech is that the common law since antiquity defined those freedoms narrowly, and that Sir William Blackstone in 1769, and Lord Chief Justice Mansfield in 1770, faithfully summarized the common law in giving a very narrow definition of those freedoms as mere liberty from prior restraint and not liberty from punishment after something was printed or spoken.

This book proposes, to the contrary, that Blackstone carefully selected the narrowest definition that had been suggested in popular essays in the prior seventy years, in order to oppose the growing claims for much broader protections of press and speech. Blackstone misdescribed his summary as an accepted common law definition, which in fact did not exist. A year later, Mansfield inserted a similar definition into the common law for the first time, also misdescribing it as a long-accepted definition, and soon misdescribed the unique rules for prosecuting sedition as having an equally ancient pedigree. Blackstone and Mansfield were not declaring the law as it had long been, but were leading a counter-revolution about the breadth of freedoms of press and speech, and cloaking it as a summary of a narrow common law doctrine that in fact was nonexistent.

That conflict of revolutionary view and counter-revolutionary view continues today. For over a century, a neo-Blackstonian view has been dominant, or at least very influential, among historians. Contrary to those narrow claims, this book concludes that the broad understanding of freedoms of press and speech was the dominant context of the First Amendment and of Fox's Libel Act, and that it enjoyed greater historical support.

Thanks to Michael Perry for the pointer -- he has a blurb on the back cover:

"The Revolution in Freedoms of Press and Speech is itself revolutionary. The conventional historical view - defended most prominently by Leonard Levy - has been that as widely understood at the time the First Amendment was proposed and ratified, the freedoms of press and speech were quite narrow. But as Wendell Bird demonstrates in his magisterial new book, that view is utterly mistaken. As widely understood not only at the time the First Amendment was proposed and ratified but also for a generation before then, the freedoms of press and speech were significantly broader than Levy and many others have argued. Bird's book is a truly indispensable contribution to the ongoing debate about the original understanding of the First Amendment." -- Michael J. Perry, Robert W. Woodruff Professor of Law, Emory Law School, author of Human Rights in the Constitutional Law of the United States and of A Global Political Morality: Human Rights, Democracy, and Constitutionalism

Without having (yet) read the book, I would say just from the description that it is a very important project of enormous importance to originalism.  I have long distrusted Leonard Levy's account but without enough knowledge to squarely dispute it.


John McGinnis on Goldberg v. Kelly
Michael Ramsey

At Law & Liberty (recently redesigned!), John McGinnis, Brennan’s Best or the Court’s Worst? From the introduction:

Goldberg v. Kelly, a landmark Supreme Court decision creating constitutional rights for “new property,” like welfare, turns 50 this month. William Brennan, the leading liberal justice of the 20th century, called it one of his best, if not his best opinion. He described it as “injecting passion into a system whose abstract rationality had led it astray” and “declaring that sterile rationality is no more appropriate for our administrative officials than for our judges.”

Yet Goldberg‘s birthday is not one to celebrate—and not just because Brennan denigrates the formal methods of legal reasoning that are guardrails of the rule of law. The opinion elides the essential distinction between private property and government benefits. Indeed, read with full force, it may suggest that both welfare and private property have the same status: both exist at the sufferance of government. Their only protection, then, are the due process rights the Court chooses to grant. Moreover, the opinion embodies judicial overreach. The Court pretends that it can calibrate the procedures for determining continued eligibility for welfare benefits, although it has no expertise in the subject.

While the decision has been distinguished and cabined, it has never been overruled. Its blurring of the distinction between private property and government benefits could easily gain new energy from some future justices—like those appointed by a socialist, to take a purely hypothetical example!

As the post goes on to show, Goldberg is one of many examples refuting the common critique (see for example here from Neil Buchanan and Michael Dorf) that there's no material difference between modern originalism and nonoriginalism.  For an originalist, the key is that "property," given its original public meaning, did not include rights to future gratuitous payments from the government.    Thus the due process clause does not protect welfare payments.  Simple.  It may well be true, as Justice Brennan wrote, that welfare recipients have a "brutal need" for their payments -- even a greater need, perhaps, than property owners have for their property.  And it may be true that one can redefine "property" to include future payments from the government, as Charles Reich famously did in calling them the "new property" -- and that "property" is in that sense ambiguous.  These may be important, even decisive, questions for nonoriginalists like Brennan, and they might be reasons to consider a constitutional amendment, but for an originalist analysis they don't matter.

As importantly, if it turns out that I'm wrong (as I might be) and that future gratuitous payments were considered property when the clause was enacted, then the originalist analysis comes out differently -- again without regard to modern conditions that might cut the other way, such as the great expansion of the welfare state.

Goldberg is fundamentally a nonoriginalist opinion, an express contrast to originalism (as Brennan intended).  Its outcome could be defended on originalist grounds only by completely rewriting the opinion, and only if particular facts about the meaning of property at the time of enactment could be established (and I doubt they could be).  The idea that these two modes of analysis are essentially the same is, at best, odd.


Mark Frassetto: Meritless Historical Arguments in Second Amendment Litigation
Michael Ramsey

Mark Frassetto (Everytown for Gun Safety) has posted Meritless Historical Arguments in Second Amendment Litigation (46 Hastings Const. L.Q. 531 (2019)) (24 pages) on SSRN.  Here is the abstract:

Most law review articles attempt to address difficult or hotly contested legal issues. This is not one of those kinds of articles. Rather than address the hard questions about the originalist methodology or the complicated firearms regulatory landscape surrounding the ratification of the Second and Fourteenth Amendments, this article will address the frivolous arguments made by many plaintiffs in Second Amendment cases, some of which have unfortunately made their way into district and circuit court decisions. These arguments, often made in a misleading sentence or two, usually take a few paragraphs to effectively rebut, paragraphs which the state and local governments defending against challenges to gun laws generally do not have the time, necessary expertise, or word count to include in their briefing. This article aims to provide easy answers to these arguments, hopefully allowing both the courts and the parties to focus on the serious issues of debate.

This article is not asserting that all the historical issues surrounding the Second Amendment are simple, or subject to easy answers. There are serious arguments about history to be made by both sides in Second Amendment scholarship and litigation. Many have been made by the scholars contributing to this volume. Assessing the original public meaning of rights based on centuries-old legal traditions, which requires the analysis of case law and statutes drawn from an unfamiliar legal tradition and culture, is not easy work and does not yield simple answers. Unfortunately, these issues worthy of serious discussion are often obscured by frivolous arguments that require time-consuming responses and take focus away from the actual issues in the case.


2020 Federalist Society Student Symposium (Video)
Michael Ramsey

Here is the video for the Federalist Society's Annual Student Symposium, held (virtually) on March 14, 2020 (congratulations to the University of Michigan chapter for hosting).

And here is the schedule: 

Symposium: The Structural Constitution in the 21st Century

Panel I: The Compact Clause

The Compact Clause has received extra attention recently because of the Electoral College and the proposed state compact concerning the popular vote, but that is far from the only use of the compact clause. There are currently 200 active interstate compacts ranging from the significant to the almost trivial. The environment, metropolitan transportation authorities, and waterways are a few major areas where compacts are frequent. What can compacts properly cover? When are they constitutionally forbidden? When permitted, when do they promote good public policy, and what are the dangers posed by their use?

  • Prof. Michael S. Greve, Professor of Law, Antonin Scalia Law School
  • Prof. Roderick M. Hills, Jr., William T. Comfort, III Professor of Law, New York University School of Law
  • Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law, Case Western Reserve University School of Law
  • Moderator: Mr. Eugene B. Meyer, President and CEO, The Federalist Society

Panel II: The Proper Role of the Senate

Much has changed concerning the Senate since the adoption of the Constitution. It is now directly elected. The nature of its power has changed with the passage of the 16th Amendment.  And its unique role in confirmations and treaties and the nature of its role protecting smaller states all have undergone much discussion. The Senate has always played a key role in balancing purely democratic power. It has also protected the states and possibly served to defuse otherwise hostile geographical battles. Does or should this role change in our modern democracy? If so, how?

  • Prof. Lynn A. Baker, Frederick M. Baron Chair in Law and Co-Director of the Center on Lawyers, Civil Justice and the Media, University of Texas at Austin School of Law
  • Prof. Sanford V. Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas at Austin School of Law
  • Ms. Amanda Neely, General Counsel, Office of Senator Rob Portman
  • Prof. John Yoo, Emanuel Heller Professor of Law and director of the Korea Law Center, University of California at Berkeley School of Law
  • Moderator: Hon. Raymond M. Kethledge, United States Court of Appeals, Sixth Circui

Keynote Address by Hon. Paul D. Clement

Panel III: Do Changing Norms Undermine Support for Our System of Government?

Norms range from having quasi-constitutional force to simply being generally accepted modes of conduct that are more easily broken. Such norms include: The Supreme Court has nine members; Congress invites the President for the State of the Union message; the Senate acts on nominees; children are left alone in political campaigns; and the press ignores old sexual peccadilloes. In the area of congressional action, major new legislation historically required bipartisan support, but this did not occur with the Affordable Care Act. There are now battles over recess appointments for political purposes as opposed to the practical purpose of filling positions when Congress is in recess. Is there generally less self-restraint and more willingness to achieve short-term goals by whatever means with less respect for process? If so, does that pose a serious threat to our Constitution, and what might be done about it?

  • Prof. David E. Bernstein, University Professor and the Executive Director, Liberty & Law Center, Antonin Scalia Law School
  • Dean Vikram D. Amar, Dean and Iwan Foundation Professor of Law, University of Illinois College of Law
  • Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
  • Dean Evan H. Caminker, Dean Emeritus and Branch Rickey Collegiate Professor of Law, University of Michigan Law School
  • Moderator: Hon. Chad A. Readler, United States Court of Appeals, Sixth Circuit

Panel IV: Originalism and Interstate Relations

The Constitution famously says very little about interstate relations. Writing for the Court in Franchise Tax Board v. Hyatt, Justice Thomas suggested that the Constitution “reflects implicit alterations to the States’ relationships with each other, confirming that they are no longer fully independent nations.” How much of the law of interstate relations is truly settled by the Constitution? As for the rest, what kind of law governs instead? Is it federal or state, general or international, written or unwritten? And what does it provide?

This panel examines what originalism has to say, if anything, about questions of “horizontal federalism”—such as personal jurisdiction, choice of law, full faith and credit, extraterritorial regulation, state borders, sovereign immunity, and other areas of interstate dispute. How did the Founders understand these questions, either before the Constitution or after? What duties do the fifty states owe one another? And what are the roles of Congress and the courts in determining the answers?

  • Prof. William P. Baude, Professor of Law and Aaron Director Research Scholar, University of Chicago Law School
  • Prof. Douglas Laycock, Robert E. Scott Distinguished Professor of Law, University of Virginia School of Law
  • Prof. Stephen E. Sachs, Professor of Law, Duke University School of Law
  • Moderator: Hon. David R. Stras, United States Court of Appeals, Eighth Circuit

Presentation of the Annual Joseph Story Award

Prof. Stephen E. Sachs, Duke University School of Law, gives remarks upon accepting the Joseph Story Award.

(Via Will Baude at Volokh Conspiracy, who excerpts some of Professor Sachs' remarks).


Neil Buchanan & Michael Dorf: How Law and Economics Mirrors Originalism and Textualism
Michael Ramsey

Neil H. Buchanan (University of Florida - Levin College of Law) and Michael C. Dorf (Cornell Law School) have posted  A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism (106 Cornell Law Review, forthcoming) (74 pages) on SSRN.  Here is the abstract:

Two leading schools of thought among U.S. conservative legal elites — Law and Economics (L&E) and Originalism and Textualism (O&T) — both purport to use their formalist structures to guide analysis in ways that are objective, substantially determinate, and apolitical. Because they rest on very different theoretical underpinnings, L&E and O&T should only randomly reach similar policy or legal conclusions. After all, L&E implements neoclassical economics, a theory of utility maximization, whereas O&T is a theory of semantics. Yet as practiced, L&E and O&T rarely result in conflict. What explains the missing intra-conservative clash? Despite their respective pretenses to objectivity, determinacy, and political neutrality, neither theory delivers on its promises. Economic efficiency, the lynchpin of L&E, is incoherent because it relies on typically hidden but ultimately normative assumptions about preferences that would exist in an impossible world without law. O&T as it has been refined in response to devastating criticisms of earlier versions is indistinguishable from ostensibly less determinate rivals like Living Constitutionalism and purposivism. Accordingly, conservatives use L&E and O&T to obscure the role of normative priors, perhaps even from themselves. Liberals could use the same techniques for different results but heretofore generally have not, instead mostly settling for counterpunching against charges of result-orientation.

The proposition that modern originalism "is indistinguishable from ostensibly less determinate rivals like Living Constitutionalism and purposivism" has become something of a staple criticism among anti-originalist academics.  As someone who spends a good bit of time trying to figure out the original meaning, as opposed to the modern meaning, of various constitutional clauses, that seems to me not only wrong but kind of silly.  The whole point of living constitutionalism is that it encourages interpreters to examine a range of considerations that simply aren't relevant to an originalist analysis.  This is apparent in nonoriginalist scholarship on particular clauses, which addresses these considerations, and in originalist scholarship, which does not.  (This, though, is a minor quibble that does not necessarily resolve the paper's interesting question about why there is not more intra-conservative debate on interpretive approaches).


Underselling Originalism
Rob Natelson

Constitutional originalists frequently understate the case for constitutional originalism.

Professor John McGinnis is a prominent and persuasive exponent of originalism. However, in his posting, The Empire Strikes Back Against Originalism, which Michael Ramsey summarizes here, he misses some opportunities.

Consider his quotation of James Madison: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.” That’s fine as far as it goes, but here is Madison’s entire passage, written in a 1824 letter to Henry Lee:

With a view to this last object, I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption. Not to look further for an example, take the word “consolidate” in the address of the Convention prefixed to the Constitution. It then and there meant to give strength and solidity to the Union of the states. In its current & controversial application it means a destruction of the states, by transfusing their powers into the government of the Union.

Professor McGinnis’ extract might suggest Madison was merely making a theoretical observation, when he was actually launching a full-throated attack on what we would call “living constitutionalism.” The complete passage forces the question: Why should we apply to Madison’s constitution an interpretative technique he so roundly repudiated?

As a general matter, originalists tend to understate their case in at least three ways:

  • They understate how long originalism has prevailed in Anglo-American documentary interpretation;
  • they do not emphasize the degree to which originalism has prevailed, and still prevails, throughout Anglo-American jurisprudence; and
  • they downplay the role of the subjective understanding behind a document’s words in fixing the meaning of those words.

First: Professor McGinnis’s posting provides an example of temporal understatement in his remark that originalism “has been around since the early republic,” citing Madison’s 1824 letter.

But by 1824 Anglo-American courts had been applying originalist methodology for centuries. Specifically, the “intent of the makers” had been the lodestar of documentary construction since at least the 1500s. My 2007 article on the subject contains many examples, but here is one from the Founding-era:  In 1782, the Virginia Supreme Court of Appeals decided Commonwealth v. Caton. It applied originalist methods to the Virginia constitution, with judges referring repeatedly to the “makers of the constitution” and what was “intended by the framers” (who were, in this case, also the document’s ratifiers). Participants in the Caton case included several Founders of the first and second rank, including Edmund Randolph (as an advocate) and Edmund Pendleton (as a judge).

Anti-originalists sometimes contend that originalism is a creation of modern conservatives. History renders this claim risible.

Second: Originalists need to emphasize that the “intent of the makers” standard is not unique to constitutional interpretation. It is, and long has been, the standard for interpreting documents generally. Pre-Founding-era and Founding-era legal sources show the “intent of the makers” guiding construction of documents of all kinds, with the notable exception of real estate conveyances. Of course, the identity of the “makers” varied with the nature of the instrument. For a statute, the “makers” were the legislators (not the legislative drafters); for a will, the testator; for a contract, the contracting parties; for a constitution, the ratifiers.

Today we usually refer to the “the intent of the parties” rather than the intent of the makers, but originalism remains the prevailing rule of documentary construction throughout the law. In fact, it has expanded its empire to include real estate conveyances, as I showed in my conveyancing treatise many years ago (Modern Law of Deeds to Real Property, Little, Brown &Co., 1992).

In my view, far too many constitutional commentators (both originalists and non-originalists) arrive at their positions without significant experience in other areas of the law. Exposure to a variety of legal subjects helps us understand the product of the framers, most of who had multi-subject law practice experience before they started writing constitutions. If we required law professors with constitutional ambitions to work first in fields such as contracts, property, and estates, then I think claims that originalism is unique or fabricated for conservative ends would largely disappear.

Third: Perhaps in reaction to Professor Jeff Powell’s much-cited 1985 law review article—or in reaction to Justice Scalia’s views of statutory interpretation—many originalists have unwisely distanced themselves from the ratifiers’ subjective understanding in favor of objective public meaning.

Yet in other areas of the law, when coherent evidence of subjective understanding is available, courts give it great, often decisive, weight. When the evidence demonstrates sufficiently that the written words differ from the subjective understanding, courts often employ the equitable remedy of reformation to ensure that the words comply with the understanding.

Contrary to Jeff Powell’s thesis, the jurisprudence of the 16th, 17th, and 18th centuries demonstrates that Anglo-American lawyers similarly valued the subjective understanding behind documents being construed. When good evidence of subjective understanding was available, courts used it to clarify the words. Occasionally—as the court did unanimously in the Caton case—subjective understanding could trump the words. Thus, the following maxims were common during the Founding-era: Ut verba serviant intentioni & non intentio verbis (“So that the words serve the intention and not the intention the words ”) and Qui haeret in litera haeret in cortice. (“Who sticks [only] to the letter sticks to the bark”).

I am not, of course, suggesting that courts re-write the text of the Constitution to conform to ratifier understanding. (Aside from perhaps one or two clauses, there is very little variance.) But where subjective understanding is clear, we should unapologetically apply it in construing the text.

Originalism is not some competing theory of fairly recent origin, or even of 19th century origin. It has been the dominant method of documentary interpretation in our legal system—and a central feature of the rule of law—for at least five centuries. Originalists need to start saying so.

Note: A fuller examination of constitutional and other documentary interpretation at the Founding appears in Robert G. Natelson, The Founders’ Hermeneutic: The Real Original Understanding of Original Intent, 68 Ohio St. L.J. 1239 (2007).


Cynthia Nicoletti: The Rise and Fall of Transcendent Constitutionalism in the Civil War Era
Michael Ramsey

Cynthia Nicoletti (University of Virginia School of Law) has posted The Rise and Fall of Transcendent Constitutionalism in the Civil War Era (106 Virginia Law Review __ (2020)) (62 pages) on SSRN.  Here is the abstract:

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty.

After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.


Robert Bloom & Eliza Walker: Rules and Standards in Justice Scalia's Fourth Amendment
Michael Ramsey

Robert M. Bloom (Boston College Law School) and Eliza S. Walker (Boston College Law School) have posted Rules and Standards in Justice Scalia's Fourth Amendment (University of Richmond Law Review, forthcoming) (46 pages) on SSRN.  Here is the abstract:

This article examines Justice Scalia’s effort to limit judicial discretion through the lens of the debate between rules and standards. It is the first article to situate Scalia’s goal of limited discretion within the framework of the debate between rules and standards, as well as the first to discuss this issue specifically with respect to his Fourth Amendment decisions. Rules are binding directives that leave little room for considering the specific facts of any given situation. Critics argue that they tend to be over- or underinclusive, but the value of rules is that by taking power away from the decisionmaker, they limit judicial discretion. Further, some argue that rules promote democracy because they properly leave the power to make decisions based on politics or value judgments to the legislature. On the flip side, proponents of standards argue that standards produce judgments that are less arbitrary and more substantively fair because they allow decisionmakers to consider all of the relevant facts and circumstances of the case.

Justice Scalia has been called the leading supporter of the “rules-as-democracy argument.” He argued that rules were preferable because they are more likely to ensure equal treatment among like cases, they make the law clear in a system where the Supreme Court can review only a small number of cases, and they ensure predictability.

How does this philosophy of limited judicial discretion manifest in the Fourth Amendment context? Because the Fourth Amendment specifically prohibits “unreasonable” searches—which arguably dictates a standard—Justice Scalia often sought to construct rules that could curb a limitless interpretation of “unreasonable.” Further, the Fourth Amendment context is unique because of the strong interest for police to have intelligible rules dictating the scope of any potential search.

Part One of this Article discusses Scalia’s Fourth Amendment cases in the criminal context. It first discusses his methodology when approaching Fourth Amendment cases, and then outlines the cases where he advocated for bright-line rules that would limit judicial discretion. Part Two demonstrates his departure from the rules approach in civil special needs cases and cases involving remedies for Fourth Amendment violations.


Stephen Sachs: The Unlimited Jurisdiction of the Federal Courts
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted The Unlimited Jurisdiction of the Federal Courts (Virginia Law Review, forthcoming) (56 pages) on SSRN.  Here is the abstract:

Federal courts are courts of limited jurisdiction — but only in part. While a federal court’s subject-matter jurisdiction is limited by the Constitution, its personal and territorial jurisdiction is not. A federal court’s writ may run as far as Congress, within its enumerated powers, wants it to go.

This claim is quite contrary to current doctrine, which borrows jurisdictional limits on federal courts from a body of principles that’s thought to govern state courts. This borrowing not only bars recoveries by injured plaintiffs, such as American victims of foreign terrorist attacks, but has become a font of confusion for procedure scholars, giving rise to incisive recent critiques of the Federal Rules.

It’s also a mistake. The Fourteenth Amendment didn’t invent personal jurisdiction doctrine; it enabled federal enforcement of doctrines that already applied. Retroactively forcing the Fifth Amendment into the mold of the modern Fourteenth transforms what was supposed to be an expansion of federal power into a strict constraint on federal authority.

The territorial authority of federal courts depends, in the first instance, on the powers of Congress. It may be that Congress can authorize fully global jurisdiction over any suit permitted by Article III; or, if not, there may be ways for it to make better use of its jurisdictional powers at home. Either way, the existing mix of statutes and procedural rules appears to be fully valid. If the Constitution didn’t impose limits on Congress or on the federal courts, modern doctrine shouldn’t either.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!")


Robert Natelson on Impeachment (Again, but Different this Time)
Michael Ramsey

In the Federalist Society Review, Robert Natelson: New Evidence on the Constitution’s Impeachment Standard: “high . . . Misdemeanors” Means Serious Crimes.  From the introduction (footnotes omitted):

The Constitution permits impeachment and removal of federal officers for “Treason, Bribery, or other high Crimes and Misdemeanors.” Records from the Founding tell us that the adjective “high” modifies both “Crimes” and “Misdemeanors.” Thus, the Impeachment Clause may be read as permitting removal if an official has committed (1) treason, (2) bribery, (3) another high crime, or (4) a high misdemeanor.

But what is a high misdemeanor? As I pointed out in a prior article in Federalist Society Review, commentators and scholars have agitated this question for many years. Exemplifying the disagreement was the testimony of the four constitutional scholars called to testify before the U.S. House Judiciary Committee during the impeachment proceedings against President Donald Trump.

My prior article suggested yet another standard: that a high misdemeanor is what modern lawyers call breach of fiduciary duty and Founding-era lawyers called breach of trust. ...


... The evidence consulted thus far when viewed in isolation is simply not determinative. This lack of determinativeness has led some scholars to conclude that ascertaining the precise meaning of high misdemeanors is not practical, that the process is inherently political, and that the grounds for impeachment should be worked out on case by case basis.

... [M]odern commentators read sources such as Madison’s convention notes in isolation from the wider legal background, without underlying legal terminology or concepts to clarify them. Yet they must be read against the contemporaneous legal background to be fully understood.

The Constitution is a legal document, the “supreme Law of the Land.” The majority of its framers were lawyers, as were most of those who explained the document in the ratifying conventions and to the American public—a public legally sophisticated by today’s standards. The document itself is laden with legal terms of art. These include not only obvious legal phrases like habeas corpus and trial by jury, but phrases that, while common in the eighteenth century, are not widely used in modern law. Examples are “Privileges and Immunities,” “necessary and proper,” and “regulate . . . Commerce”—phrases with specific legal meanings during the Founding era. That one must read the Constitution in the context of eighteenth century jurisprudence should be obvious, particularly to lawyers and law professors. But apparently it is not.

One of the few writers who have ventured beyond Blackstone is Raoul Berger. Berger was not a legal scholar but a Harvard political scientist who authored a leading book on impeachment. Perhaps because he wrote before electronic search methods were available, however, Berger’s investigation into contemporaneous law was cursory. His conclusion was that “high misdemeanors” were “words of art confined to impeachments, without roots in the ordinary criminal law.” But as this article demonstrates, this conclusion could not have been more wrong.

My earlier conclusion was wrong too. Founding-era legal materials reveal that “high misdemeanor” was a frequently used legal term of art with a fixed and specific meaning. By adopting it, the Founders raised the bar for impeachment well above the House of Commons’ standard in the then-current Warren Hastings case and well above the standards codified in most state constitutions.

Here is a link to Professor Natelson's earlier article (whose conclusions he is now rejecting), and here is a recent short essay summarizing his conclusions.


Ian Bartrum: On the Intellectual Origins of American Judicial Power
Michael Ramsey

Ian C. Bartrum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted The People's Court: On the Intellectual Origins of American Judicial Power (125 Dickinson Law Review, forthcoming) (73 pages) on SSRN.  Here is the abstract:

This article enters into the modern debate between “constitutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we must expand the traditional conception of the “separation of powers” to include not just distinct institutional functions, but also the structured division of the sovereign prerogative itself, both within and without the institutions of government. It then becomes possible to read Article III as part of a larger effort to unbundle the metaphorical sticks of traditional sovereign power, and to vest what I call the revolutionary prerogative in an independent judicial branch.

This prerogative establishes an institutional form through which the Court might invoke John Locke’s famous “revolution principle” on behalf of the sovereign People. It thus allows for what James Wilson celebrated—and what Sir William Blackstone could not conceive—the possibility of legalized revolution. In other words, the revolutionary prerogative allows for formal, independent appeal of the terms of the constitutional contract, by which the People delegated limited and contingent authority to their legislative and executive agents. Indeed, it is the final legal step before constitutional amendment or dissolution. Of course, the People retain the ultimate sovereign prerogative to declare the state of exception, but once constituted, the meaning of our fundamental law remains firmly, and solely, a matter of judicial discretion.


Mark Moller & Lawrence Solum: Corporations and the Original Meaning of “Citizens” in Article III
Michael Ramsey

Mark Moller (DePaul University - College of Law) and Lawrence B. Solum (Georgetown University Law Center) have posted Corporations and the Original Meaning of “Citizens” in Article III (71 pages) on SSRN.  Here is the abstract:

Article III grants confers the judicial power of the United States over controversies between "citizens" of different states. In Section 1332(c) of Title 28 of the United States Code, Congress has provided that for the purposes of diversity jurisdiction, corporations are citizens of the state in which they are incorporated and the state in which their principal place of business is located. This raises the question whether corporations are citizens within the original public meaning of Article III of the Constitution. This Article demonstrates that in 1787 the word "citizen" referred only to natural persons and therefore that corporations cannot be considered "citizens" within the original public meaning of Article III. As a consequence, Section 1332(c) is unconstitutional from an originalist perspective.

I read an earlier draft -- it's an outstanding paper, as important (if not more so) for its detailed methodology as for its conclusions.


John McGinnis on Originalism's Enemies
Michael Ramsey

At Law & Liberty, John McGinnis: The Empire Strikes Back Against Originalism (from last week, but I was on vacation).  From the introduction:

The nation’s legal culture ultimately determines how the Constitution is interpreted. When originalism had fallen into desuetude, the Warren Court decided cases without substantial, if any, consideration of very plausible originalist positions. It did not even deign to respond to overwhelmingly powerful originalist arguments, such as those made by Justice John Marshall Harlan in dissent in Reynolds v. Sims. That kind of performance is no longer conceivable because originalism has established an important foothold in the legal culture.


The culture of originalism has been strengthened by three forces working in combination. The first is the appointment of originalist justices and judges. President Trump has especially accelerated this force by appointing lower court judges who pursue originalism in their own opinions, using original meaning to cabin nonoriginalist Supreme Court precedents. The second is the Federalist Society which provides a forum for debate and a hospitable shelter for originalist scholars who live in a still inhospitable academic world. Finally, originalist legal scholars, while relatively few, have been exerting an outsized influence, refining theories of originalism in dialogue with one another and unpacking the legal meaning of provisions, like the Due Process Clause, that may seem opaque to the casual reader.

But the legal and opinion establishment is decidedly not originalist, and it is striking back at all these sources of influence. First, a committee of federal judges whose membership leans heavily against originalism, has circulated a draft opinion (discussed in more detail here by Ed Whelan and here by Mark Pulliam) suggesting that judges cannot be members of the Federalist Society because it may call their impartiality into question. ...

Second, in my admittedly subjective sense, since sometime before Trump’s election, law schools have become less willing to hire originalists than they once were, despite the increasing importance of originalist arguments in the courts. ...

But perhaps most representative of the growing establishment pushback on originalism is the appearance of Emily Bazelon’s full-length article in the New York Times Magazine, the house organ of the liberal establishment, attacking originalism. The concern expressed at the end of the article—that originalism is even making inroads with liberals—suggests that the piece is an attempt to keep the virus from spreading.

And in conclusion:

Bazelon’s article ironically shows that originalism has a powerful appeal that no amount of editorializing can squelch. Contrary to Bazelon’s claims, it has been around since the early republic. As James Madison stated: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.” It continues to exert a hold on popular sentiment: That’s the reason that all sides in the Donald Trump impeachment debate, as in the Bill Clinton impeachment debate, appealed to original meaning. Today, this tradition and common sense are reinforced by scholars and judges more than at any time in the last century. We do not yet have a fully originalist legal culture, but the currents are moving in that direction.


T.T. Arvind & Christian Burset: A New Report of Entick v. Carrington (1765)
Michael Ramsey

T. T. Arvind (York Law School) and Christian Burset (Notre Dame Law School) have posted A New Report of Entick v. Carrington (1765) (64 pages) on SSRN.  Here is the abstract:

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation, and for more than 130 years, the Court has read Entick carefully to learn the original meaning of the Fourth Amendment. But the Court has been reading a flawed version of the case. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, as well as how this new discovery might challenge prevailing assumptions about the Fourth Amendment and Entick’s place in British and American constitutional history more broadly. Although we leave a full reevaluation of Entick for future scholarship, we show that any future judicial or academic discussion of the case must take this new report into account.


Zachary Pohlman: Stare Decisis and the Supreme Court(s)
Michael Ramsey

Zachary B. Pohlman (Notre Dame Law School JD '21) has posted Stare Decisis and the Supreme Court(s): What States Can Learn from Gamble (95 Notre Dame Law Review (2020), forthcoming) (34 pages) on SSRN.  Here is the abstract:

The Supreme Court has recently begun to explore the theoretical underpinnings to its long-adhered to stare decisis doctrine. In 2019, Justice Thomas explained his views in his concurrence in Gamble v. United States, offering both a scathing critique of the Court’s current application of stare decisis and a detailed account of his own textually grounded approach to precedent.

While Justice Thomas’s concurrence is understandably aimed at the Supreme Court, the current literature on stare decisis is likewise focused on federal law. Given their comparative caseloads—the Supreme Court hears roughly eighty cases per year, while 75,586 cases were filed with state supreme courts in 2016 alone—treatment of precedent at the state level deserves greater doctrinal development. This Note attempts to advance that discussion by proposing new stare decisis considerations for state courts of last resort.

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble provides the framework for each approach, a framework based on the genesis and development of stare decisis from its English common-law roots.

Specifically, this Note argues that even if the Supreme Court does not accept Justice Thomas’s approach, state supreme courts should when deciding state statutory and constitutional questions. The distinct nature of state constitutions, the state legislative process, and state legislative power in general call for a textually grounded approach to stare decisis of the kind Justice Thomas proposed in his Gamble concurrence. Conversely, this Note argues that state supreme courts should adhere to traditional stare decisis formulations when resolving common-law disputes because the doctrine of stare decisis itself developed at common law and has greater legal and practical significance in the common-law context.

Drawing upon Justice Thomas's Gamble concurrence and recent stare decisis literature, this Note takes the current discussions of stare decisis that are occurring at the federal level and distills from them a principled approach to precedent for state courts of last resort.


Eric Segall on Justices Making Up Law
Michael Ramsey

At Dorf on Law, Eric Segall, Teaching Constitutional Law in a World Where the Justices Just Make Up the Law.  From the introduction:

I am often asked by other law professors how I teach constitutional law given my hyper-critical views about the Supreme Court. I respond by saying that: 1) the subject is on the bar exam so of course I emphasize and make clear the black letter "law;" 2) the class is wonderful for helping students improve their critical thinking; 3) if you are going to practice constitutional law you need to learn how to talk the talk of formalism and legal rules; and 4) I disclose my priors to students on the first day of class so they have an idea what the course is going to be like.

Nevertheless, I understand why I get this question all the time. As Professor Christopher Sprigman recently said ..., he tried teaching constitutional law but stopped "because my students were unhappy when I would point out how the Supreme Court was making it up, often incoherently. Students want to believe in what is in reality a bad discipline." Numerous other professors have complained about the same frustration to me over the years.

Professor Sprigman's charge that the Justices are just "making it up" needs to be unpacked just a bit because many Supreme Court experts likely disagree or perhaps phrase what the Justices do less insultingly. But Sprigman is exactly right. In most constitutional law cases, there is no helpful text or history and the Justices (and lower courts) spend most of their time discussing prior Supreme Court decisions (where there was also no helpful text or history).

I will support Sprigman's descriptive account with 10 representative examples that show how judge-made constitutional law is little more than the aggregate of the Justices' value preferences or, on some occasions, the results of bargaining among the Justices to reach a five-vote result that makes little sense. I could provide 100 examples if space and the readers' patience allowed. I did provide many more examples in my first book. After the examples, I explain why judge-made constitutional law is different from judge-made common law and then close with a few more thoughts about teaching.

The examples are, unfortunately for the Court, pretty effective.

Though Professor Segall disagrees, one might think textualist originalism is a partial solution.  Judges will still have strong temptations to continue making up the law, but if the legal culture gives them a (somewhat) objective standard to meet, they'll be better at resisting the temptation.  Alternatively, if the legal culture embraces judges making up the law, then they will make even more of it up, with the consequence of an increasingly politicized judiciary.


Seila Law: Constitutional Case of the Year?
Michael Ramsey

From the Wall Street Journal's editors: Constitutional Case of the Year; Brett Kavanaugh gets his moment on the separation of powers (discussing Seila Law LLC v. Consumer Financial Protection Bureau, argued to the Supreme Court Tuesday).  From the introduction:

... This [case] goes to the heart of the separation of powers and whether the administrative state is accountable to the people.

Seila Law v. CFPB concerns whether a President can remove the bureau’s director only for “inefficiency, neglect of duty, or malfeasance in office.” This should be an easy call, but far more important is the remedy and whether the Justices merely sever the bureau’s mutant head from its unconstitutional body.

Democrats created the CFPB in 2010 as an independent agency within the Federal Reserve. Yet unlike other independent agencies, it was designed to be politically insulated. The bureau gets funding automatically upon its director’s request from the Fed, so it doesn’t need Congressional appropriations.

Most agencies are led by a multi-member bipartisan commission, but the CFPB has a single director whom the President can only fire for cause. Congress gave the bureau broad enforcement power to investigate and penalize almost any business with any relation to finance. But its rules and orders are exempt from review by the Fed, and it needn’t consult the White House budget office. The director, in short, is President of his own little government.

And in conclusion:

If the Supreme Court lets the CFPB stand as it is, and merely skirts around the edges of its illegality by barring the “for cause” provision, this will not be the last such agency that Congress creates. The administrative state will become even less accountable to political control than it already is.

Tossing the whole law would invalidate all CFPB actions to date, but the Court also did this when it overturned Barack Obama’s illegal recess appointments in Noel Canning (2014). In the CFPB there may be fewer reliance interests since reverting to the pre-Dodd Frank status quo would leave other independent agencies to enforce consumer financial laws.

Our suggestion is that the Court strike down the law but delay the ruling’s implementation for a year or so to give Congress and the President time to amend the law if they see fit. If the current Court is serious about reviving the original meaning of the separation of powers, the CFPB is an ideal opportunity to send a shot heard ’round Washington.

Agreed.  Except, really, the Court should "delay the ruling’s implementation for a year or so"?  I don't think courts can (or at least should be able to) work that way.

A wide-ranging opinion would be nice, but I suspect the decision will be narrow, as John McGinnis suggested last week.


Getting It Right on Preemption: Kansas v. Garcia
Michael Ramsey

Also in the category of getting small things right (see yesterday's post), yesterday's Supreme Court decision in Kansas v. Garcia is a good step toward getting preemption doctrine right (or at least not making it worse).  The question was whether the federal Immigration Reform and Control Act of 1986 preempts Kansas statutes criminalizing identity theft, as applied to persons not lawfully present in the United States who used false documents to obtain employment.  The Court (5-4, per Justice Alito) found no preemption.  The majority first rejected the argument that the federal law expressly preempted state prosecutions (obviously it didn't), rejected field preemption (an unstable and rightly rare doctrine) and on the central point concluded that the possibility of interference with federal prosecutorial decisions resulting from overlapping state and federal enforcement was not enough for preemption.  The key passage:

The mere fact that state laws like the Kansas provisions at issue overlap to some degree with federal criminal provisions does not even begin to make a case for conflict preemption. From the beginning of our country, criminal law enforcement has been primarily a responsibility of the States, and that remains true today. In recent times, the reach of federal criminal law has expanded, and there are now many instances in which a prosecution for a particular course of conduct could be brought by either federal or state prosecutors. Our federal system would be turned upside down if we were to hold that federal criminal law preempts state law whenever they overlap, and there is no basis for inferring that federal criminal statutes preempt state laws whenever they overlap. Indeed, in the vast majority of cases where federal and state laws overlap, allowing the States to prosecute is entirely consistent with federal interests.

In the present cases, there is certainly no suggestion that the Kansas prosecutions frustrated any federal interests. Federal authorities played a role in all three cases, and the Federal Government fully supports Kansas’s position in this Court. In the end, however, the possibility that federal enforcement priorities might be upset is not enough to provide a basis for preemption. The Supremacy Clause gives priority to “the Laws of the United States,” not the criminal law enforcement priorities or preferences of federal officers. Art. VI, cl. 2.

This conclusion goes a fair ways in getting preemption doctrine back on track after the unfortunate decision in Arizona v. United States, 567 U. S. 387, 403–407 (2012) , which might be read to say that prosecutorial discretion of the federal executive branch could preempt state criminal law.  (The majority describes Arizona more narrowly).

Justice Thomas, joined by Justice Gorsuch, concurred, calling for a more sweeping overhaul of preemption doctrine on originalist grounds: 

The founding generation treated conflicts between federal and state laws as implied repeals. PLIVA, Inc. v. Mensing, 564 U. S. 604, 622 (2011) (plurality opinion). Then, as now, courts disfavored repeals by implication. See, e.g., Warder v. Arell, 2 Va. 282, 299 (1796) (opinion of President Judge); 2 T. Cunningham, A New and Complete Law Dictionary (2d ed. 1771) (defining “Statute”); 4 M. Bacon, A New Abridgment of the Law 638 (3d ed. 1768). To overcome this disfavor, legislatures included non obstante clauses in statutes. See Nelson, Preemption, 86 Va. L. Rev. 225, 237–240, and nn. 42–44 (2000) (collecting examples). Courts understood non obstante provisions to mean that, “[r]ather than straining the new statute in order to harmonize it with prior law, [they] were supposed to give the new statute its natural meaning and to let the chips fall where they may.” Id., at 242.

The Founders included a non obstante provision in the Supremacy Clause. It directs that “the Judges in every State shall be bound” by the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. If we interpret the Supremacy Clause as the founding generation did, our task is straightforward. We must use the accepted methods of interpretation to ascertain whether the ordinary meaning of federal and state law “directly conflict.” Wyeth v. Levine, 555 U. S. 555, 590 (2009) (THOMAS, J., concurring in judgment). “[F]ederal law pre-empts state law only if the two are in logical contradiction.” Merck Sharp & Dohme Corp. v. Albrecht, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 2); see also Nelson, supra, at 236–237.

The doctrine of “purposes and objectives” pre-emption impermissibly rests on judicial guesswork about “broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law.” Wyeth, supra, at 587 (opinion of THOMAS, J.); see also Arizona v. United States, 567 U. S. 387, 440 (2012) (THOMAS, J., concurring in part and dissenting in part). I therefore cannot apply “purposes and objectives” pre-emption doctrine, as it is contrary to the Supremacy Clause.

Justice Thomas has been pushing this argument for some time; with Justice Gorsuch solidly on board as well, preemption arguments are going to be increasingly difficult to win at the Court (as they should be).  Narrowing and formalizing preemption doctrine reduces judicial discretion and thus reduces the opportunity for policy-driven decisions; in that sense it is like the cutback of federal common law (again, per yesterday's post) and a small step toward decreasing the politicization of the courts.


A Tough Week for Federal Common Law
Michael Ramsey

Last week was a tough week for federal common law at the Supreme Court.  I don't like federal common law (at least, I don't like preemptive federal common law) so that should make it a good week for the Court.  But it's a little more complicated.

To take the uncomplicated case first, in Rodriguez v. Federal Deposit Insurance Corp. the Court (in a unanimous opinion by Justice Gorsuch) stamped out a noxious weed called the Bob Richards rule (named after a Ninth Circuit case, In re Bob Richards Chrysler-Plymouth Corp., 473 F. 2d 262 (1973) that started it all).  (SCOTUSBlog analysis by Daniel Hemel here.)  Preposterously, the Bob Richards rule, as currently applied, had held that when the IRS issues a tax refund to various private entities, the allocation of the refund is governed by federal common law (because allocating a tax refund among private entities is an area of unique federal interest, or something).  Justice Gorsuch had little patience:

This case grows from a fight over a tax refund. But the question we face isn’t who gets the money, only how to decide the dispute. Should federal courts rely on state law, together with any applicable federal rules, or should they devise their own federal common law test? To ask the question is nearly to answer it. The cases in which federal courts may engage in common lawmaking are few and far between. This is one of the cases that lie [ed.: pretty sure that should be "lies"] between.

Yes.  Of course I'd never heard of the Bob Richards rule before but I'm happy it's gone.  It may seem like a small thing.  But Justice Scalia used to say, you should be happy when the Court gets small things right -- because it won't ever get the big things right if it can't get the small things right.

The more difficult case is Hernandez v. Mesa, the cross-border shooting case (SCOTUSBlog analysis by Amy Howe here).  The Court, in a 5-4 opinion by Justice Alito, refused to extend the common law damages remedy of Bivens v. Six Unknown Federal Narcotics Agents to cross border shootings (because cross-border shootings are different from non-cross-border shootings, or something).

I'm fine with that as far as it goes, because Bivens -- as federal common law -- lacks originalist foundation.  (On this basis, Justice Thomas, joined by Justice Gorsuch, concurred in Hernandez to call for overruling Bivens).  The problem, though, is that the Constitution presupposed a damages remedy for federal officers who act unconstitutionally -- not a federal common law remedy, but a state law remedy.  I wrote in an earlier post on Hernandez:

True, the Bivens case itself is poorly reasoned from an originalist perspective, and the Court's description of the Bivens process as an implied right of action under the Constitution is unfortunate.  But the basic proposition that persons harmed by federal officers acting unconstitutionally can bring claims against them was central to the framers' understanding of constitutional limits on federal power.  In the framers' world -- and indeed the world until Bivens was decided -- these claims would typically be state common law claims.  And, so long as state common law claims remained viable, Bivens was indeed an anomaly. 

But then (post-Bivens) Congress abolished state law claims against federal officers in the Westfall Act.  In my view, absent  a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims based on unconstitutional behavior.  Congress lacks power to eliminate a remedy for unconstitutional behavior, as that action is not necessary or proper in support of any constitutional power.  The Westfall Act is constitutional only because Congress likely assumed Bivens remedies would remain in place.  Thus in the post-Westfall Act world, Bivens remedies take the place of the common law remedies assumed by the framers.  Sharply curtailing or eliminating Bivens, as Justice Scalia wished, would radically alter the checks on federal officers, as compared to the original constitutional design.

Will Baude makes a similar point about Hernandez at Summary, Judgment:

Justices Thomas and Gorsuch are right about the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas’s concurrence notes, it’s not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:

From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen’s constitutional rights. Suits to recover such damages were generally brought under state law.

What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress’s 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we’re entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?

Agreed.  Actually I would say, our eighteenth-century remedies: the idea of damages suits constraining illegal law enforcement conduct was a foundation of eighteenth-century English law as reflected in the celebrated case of Entick v. Carrington (1765) and in Blackstone.  Anyway, it doesn't advance the originalist project to eliminate (or sharply curtail) Bivens without making some effort to restore the original design here.

On further reflection, I think the solution is to declare the Westfall Act immunity unconstitutional, as applied to constitutional violations by federal officers.  The whole mess should go back to the states. 

Except in the cross-border situation it's even more complicated, because the applicable law is probably Mexican law, and it's not clear that a federal officer violates the U.S. Constitution by causing injuries in Mexico.  So maybe the Westfall Act isn't unconstitutional as applied to the Hernandez injury -- and maybe the Court got it right in Hernandez after all.