08/25/2019

Judge Eric Murphy on Denying Equal Protection
Michael Ramsey

Judge Eric Murphy, concurring in the recent Sixth Circuit case Estate of Romain v. City of Grosse Pointe Farms, argues that claims that the police failed to give adequate protection should be understood as equal protection claims, not substantive due process claims (and citing, among other authorities, originalist scholars John Harrison and Christopher Green): 

At first blush, the Equal Protection Clause’s text—barring the State from “deny[ing] to any person . . . the equal protection of the laws,” U.S. Const. amend. XIV, § 1—may provide a more plausible textual hook than the Due Process Clause for claims that the police intentionally denied a specific person (a so-called “class of one”) the protection of the criminal laws that everyone else enjoys. Indeed, while it is now well-established that the Equal Protection Clause provides a general antidiscrimination mandate for all state acts, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam), some commentators have cited historical materials suggesting that remedial laws (like the laws implicated here) fall within the center of the “protection of the laws,” see John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1435–36 (1992) (citing 1 W. Blackstone, Commentaries *55–56). These protective laws stand in contrast to, say, public-employment decisions in which “the government acts in a more proprietorial and less regulatory capacity.” SECSYS, LLC v. Vigil, 666 F.3d 678, 690 (10th Cir. 2012) (opinion of Gorsuch, J.) (discussing Engquist v Ore. Dep’t of Ag., 553 U.S. 591 (2012)).

History supports this instinct too. “[T]he suppression of private violence [was] the core concern of the Equal Protection Clause.” Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. C.R. L.J. 219, 254 (2009). “The unwillingness of the law enforcement authorities in southern states to protect the newly freed blacks from white vigilante groups such as the Ku Klux Klan was an important motive for the enactment of the equal protection clause.” Del Marcelle v. Brown Cty. Corp., 680 F.3d 887, 889 (7th Cir. 2012) (en banc) (opinion of Posner, J.). For example, Congress enacted the 1866 Civil Rights Act to give “nonwhites ‘full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.’” David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 349 (1985) (quoting Act of Apr. 9, 1866, § 1, 14 Stat. 27, 27). And the framers enacted the Fourteenth Amendment to ensure this act’s constitutionality. Id. at 347–49. To be sure, the Equal Protection Clause’s primary target may have been racially discriminatory refusals to protect persons from private violence. Id. at 349. But, whatever its purpose, the Equal Protection Clause’s text is not limited to race-based denials of the protection of the laws. Cf. District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008); Crawford v. Washington, 541 U.S. 36, 61–62 (2004).

The Equal Protection Clause’s text and history suggest that the right question to ask is: When, if ever, do equal-protection principles give a specific individual the right to challenge a state officer’s intentional refusal to provide the protection of the laws that keep the public safe from private violence? Figuring out the right question is the easy part; determining the appropriate answer is much harder. ...

(Via How Appealing.)

08/24/2019

Legal Theory Lexicon: Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has updated his entry in the "Legal Theory Lexicon" for "Originalism." Here are some excerpts.  From the introduction: 

There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism."  Originalism is actually a family of constitutional theories, but two ideas are common to almost all versions of originalism.  The first idea is that the meaning of the constitutional text is fixed: the linguistic meaning of the words and phrases does not change over time.  The second idea is that the original meaning of the constitutional text is binding: judges and officials should consider themselves constrained by the text.

On the origins of originalism and the "New Originalism":

No one scholar or judge deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren Court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. The landscape changed again in the late 1980s, when Justice Antonin Scalia suggested that originalists should shift their attention from "the original intentions of the framers" to the "public meaning of the constitutional text" or "original meaning."

... [O]ne last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. One of the important moves was the shift from "original intentions" to "original public meaning," but two other developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court. (Ackerman does not call himself an "originalist," but many of Ackerman's former students do work that is implicitly or explicitly originalist.)  Second, Randy Barnett (the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists.  The most recent development in this dynamic is Jack Balkin's attempt to reconcile originalism with living constitutionalism.  Balkin's article, "Abortion and Original Meaning" (link provided below) elicited a good deal of commentary and criticism: his recent book, Living Originalism, further develops his take on originalist theory and applies it to a variety of topics.

And on "original public meaning":

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text. ...

08/23/2019

John McGinnis on Silent Originalism
Michael Ramsey

At Law and Liberty, John McGinnis:  Silent Originalism and the Reweighting of Precedent.  From the introduction: 

The most important practical question of originalism is how to deal with the huge number of non-originalist precedents. In its June decision in Rucho v. Common Cause, the Supreme Court showed one way: Refuse to give a flagrantly non-originalist precedent generative force while not overruling it or discussing it in any detail.

A five-member majority held in Rucho that political gerrymanders presented political questions that the Court would not disturb. Its majority reached the right result, although not as forthrightly as might be desired. There is no reason to raise the “political question” doctrine, since the federal constitutional case against gerrymander founders so clearly on the merits. The Fourteenth Amendment does not prevent states from imposing such gerrymanders. Indeed, as an original matter, the Fourteenth Amendment does not justify the Court’s “one-person, one-vote” decision in Reynolds v. Sims (1963), from which a decision prohibiting gerrymanders would have been an extension. Nevertheless, the gross legal infirmity of the reasoning in Reynolds was a silent factor influencing the Court’s Rucho decision.

Reynolds v. Sims, a Consciously Anti-Originalist Opinion

The original meaning of the Equal Protection Clause of the Fourteenth Amendment does not provide a rule of “one person, one vote”; indeed, it does not guarantee an individual right to vote at all. (The Guarantee Clause requires that states must provide a republican form of government, but at the Founding, republicanism was consistent with substantial restrictions on franchises for particular classes of individuals.) This reading is not a difficult or close one, but follows from the text of the amendment itself, the statements of its sponsors, and a subsequent amendment to the Constitution. ...

As a result:

It impossible to believe that any of the five justices in the majority of the Rucho Court would endorse the reasoning in Reynolds. While they did not overrule the latter, they refused to give it any generative force. They declined to extend the proposition that a citizen’s vote must not be diluted by formally unequal districts, to the proposition that it must not be diluted by effectively partisan districts.

And in conclusion: 

Rucho v. Common Cause provides an example of “silent originalism.” The Court does not revisit and overrule a precedent due to its inconsistency with originalism, but the precedent’s manifest inconsistency robs it of generative force. This decision shows that those who, like Professor David Strauss, consider constitutional law to be an essentially common law exercise in applying the Court’s own precedents rather than following the original meaning of the Constitution, miss something important. The strength of precedents depends on underlying theories about how the Constitution is to be interpreted. The rise of originalism is dramatically changing the weights that the Court gives to its precedents. And that reweighting can have the important effect seen in Rucho.

Agreed and endorsed.  I have some related thoughts from a while back in connection with the original meaning and modern application of the supremacy clause: The Supremacy Clause, Original Meaning, and Modern Law (arguing that it is possible to contain non-originalist precedents to their facts and basic implications without disrupting the coherence of modern law).

08/22/2019

Josh Blackman on Originalism in the Fifth Circult
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: The Fifth Circuit Divides on Qualified Immunity, and Originalism.  From the introduction:

Today the Fifth Circuit issued a divided en banc decision in Cole v. Hunter. The case considered whether two police officers who shot the Plaintiff were not entitled to qualified immunity. Nine out the sixteen active judges on the en banc court found that qualified immunity was not warranted. (Two senior judges who were on the original panel joined the majority.) Judges Ho and Oldham wrote a joint dissent, which was joined by Judge Smith (see pp. 54-64). Their decision warrants a careful study. It considers how lower court judges should, and should not be originalists.

First, the duo notes that modern qualified immunity doctrine has been criticized as "ahistorical and contrary to the Founders' Constitution." They cite Will Baude's article in the California Law Review, as well as a rejoinder from Aaron Nielson and Chris Walker.

Ho and Oldham, as lower-court judges, see no role in this debate:

As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

Second, Ho and Oldham highlight an important reason why originalism has gained so much salience in debates about criminal justice: it often operates as a one-way ratchet to help the accused, but not the police. Originalists on the right, and non-originalists on the left, are all-to-happy to form an alliance that advances these civil libertarian ends. Indeed, progressive groups have begun to craft "Gorsuch briefs" to peel off conservative votes on textualist grounds. ...

Plus much more, including a response from Judge Don Willett and a counter-response from Judges Ho and Oldham.

In conclusion: 

For some time, originalism existed primarily in the academy, and occasionally on the Supreme Court. No longer. As the number of originalist judges on the circuit courts continues to grow, these sorts of debates will occur with increasing frequency. I welcome these discussions, which I [that is, Professor Blackman] discuss in my new essay, Originalism and Stare Decisis in the Lower Courts.

08/21/2019

Matthew Steilen: The Constitutional Convention and Constitutional Change
Michael Ramsey

Matthew J. Steilen (State University of New York (SUNY) at Buffalo, Law School) has posted The Constitutional Convention and Constitutional Change: A Revisionist History (Lewis & Clark Law Review, forthcoming) (65 pages) on SSRN.  Here is the abstract: 

How do we change the federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes, and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland. 

Nearly everyone would agree, however, that most constitutional change is not formal constitutional change under Article V, but informal change — change by interpreting the Constitution, altering the workings of government, or even changing political practices. Because courts, executive agencies, and political parties do not represent the people the way conventions do, these mechanisms are sometimes said to be anti-democratic or even illegitimate methods of change. Yet they are dominant nonetheless. 

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and legislatures to be used for amendment, and, as it happens, all but one of the twenty-seven amendments to the Constitution have been made by legislatures. If conventions alone represent the people in their sovereign capacity, then why don’t we actually use them to change the federal Constitution? Are we to conclude that most of the amendments are in some way defective? 

To show why Article V might have permitted the use of legislatures to amend the Constitution, this paper examines a series of political texts on the convention, written between the seventeenth and eighteenth centuries. Writers in this line defended the power of Parliament or the American colonial assemblies to alter the frame of government. From their point of view, the people could be present in the legislature, and when they were, the legislature could establish fundamental law. 

This perspective helps to explain the rightful place of informal constitutional change in our system. The people can be represented by the institutions of government itself, and when they are, those institutions can claim an authority to alter the constitution. In this sense, the popular sovereignty described in McCulloch is dynamic: it can be present in different institutions at different times. Presidents have repeatedly claimed just this authority. From the perspective of the writers examined here, the legislature could too. It was when corruption stopped up legislative routes of popular constitutional change that the people could move outside government entirely, to a convention, where they might alter the constitution to better secure their property and liberty. 

The history set out here directly challenges the orthodox historical account, based largely on the work of Gordon Wood, that has dominated the legal academy for nearly 50 years. It focuses on the same key state — Pennsylvania — and argues in detail that Wood’s interpretation of the use of the convention there is incorrect. The paper emphasizes political context rather than ideology, and in so doing offers a more nuanced, and more realistic, view of the place of the convention in American constitutional change.

Via Larry Solum at Legal Theory Blog, where it is "Download of the Week" and "Highly Recommended."

08/20/2019

Corpus Linguistics and 2nd Amendment
David Weisberg

I agree completely with Neil Goldfarb’s conclusion that Heller was wrongly decided.  (My own reasoning is set forth in a paper, “A Unique, Stand-Alone Second Amendment Implies That Both Heller and McDonald Were Wrongly Decided,” available here on SSRN.) Nevertheless, I just as strongly disagree with his interpretation, based on corpus linguistics (“CL”), of the meaning of the Second Amendment.

Mr. Goldfarb’s Supreme Court brief asserts (at p. i) that CL “provides compelling reason to believe” that the Second Amendment was originally understood to protect “the right to serve in the militia, not a right of individual self-defense.”  The brief also states: “In light of that evidence [provided by CL], it is reasonable to conclude that the right to bear arms that the Second Amendment protects is a right that doesn’t merely relate to military service, but rather consists of the right to serve in the militia.” (p. 4, italics in original.)  

Thus, it seems fair to say that, from Mr. Goldfarb’s perspective, a proper CL interpretation of the Second Amendment’s original meaning would probably be: “The right of the people to serve in the well regulated Militia of a State, shall not be infringed.” 

The CL formulation raises two questions: one obvious, and one more subtle.  The obvious question: If that is what the framers meant, why isn’t that what they wrote?  They would have used 19 words (all of which are used in the actual amendment) rather than 27, and expressed themselves much more precisely to boot.  And the prefatory clause, which (as Justice Scalia noted) is unique to the Second Amendment, is rendered redundant and superfluous.  That the actual Second Amendment is very different from the CL interpretation suggests that that interpretation is a misinterpretation.

The more subtle question: Why is there a stand-alone Second Amendment at all?  If the CL interpretation is correct, the First  Amendment could have been drafted thusly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances; or infringing the right of the people to serve in the well regulated Militia of a State.

This formulation encompasses only 17 words, and the Bill of Rights would be condensed from ten amendments to nine.  So, why wasn’t the First Amendment framed in that way? 

The answer, in a tiny nutshell, is that the scope of “the right of the people to keep and bear arms” that is protected from federal infringement by the Second Amendment—and by “scope” I mean, e.g., whether or not the right is limited to keeping and bearing arms for service in the militia, or also includes self-defense, or also hunting, or also target practice, or etc.—is determined by each State’s law.  That is why the reference in the prefatory clause to “a free State” is important.  In contrast, the scope of each of the rights protected by the First Amendment (and also the rights protected in the Third thru Eighth Amendments) is not determined by any State’s law.  That difference makes it impossible to meld the Second into the First.

I think CL could never provide a satisfactory answer to either of the two questions I’ve highlighted.  I also believe that the key to a correct interpretation of the Second Amendment is an understanding of why it has the prefatory clause it has, and why the amendment as a whole stands alone.  That's why I think CL will never yield a correct interpretation of the Second.

Nelson Lund: The Destructive Legacy of McCulloch v. Maryland
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted The Destructive Legacy of McCulloch v. Maryland (McCulloch v. Maryland at 200, Gary J. Schmitt, ed. (forthcoming)) (36 pages). Here is the abstract:

McCulloch v. Maryland is probably the Supreme Court’s single most influential opinion, and certainly one of its most celebrated. As countless commentators have recognized, McCulloch’s importance arises from its doctrine of implied congressional powers, which has been applied even to constitutional amendments adopted decades after the McCulloch decision itself. Revered though it may now be, Chief Justice Marshall’s opinion provoked a hostile commotion when it was issued. So much so that he was moved to defend it in a series of anonymous newspaper essays. The opinion remained controversial for many years, and it deserves to become controversial once again.

Like Marshall, all of the current Justices can say that the abstract principle of limited and enumerated powers is “now universally admitted.” But the legacy of his opinion has been the effective destruction of that principle. McCulloch famously proclaimed that “we must never forget, that it is a constitution we are expounding.” This sonorous aphorism is frequently, if unnecessarily and improperly, taken to mean that it is merely a constitution, which judges are free (or obligated!) to amend under the guise of interpretation. That attitude has triumphed historically, and perhaps irrevocably. Constitutional law is widely regarded now as a branch of political philosophy or as a field on which to play junior varsity statesmanship. Or, not infrequently, as an arena for flamboyant moral posturing or as a weapon of partisan warfare.

Rather than submissively celebrate these developments, we could choose to stop forgetting that the Constitution was originally meant to be a law, and that it was meant to be more authoritative than what the Supreme Court says about it. If we did, McCulloch and its rank progeny would become controversial once again.

08/19/2019

The Original Meaning of Section I of Amendment XIV All in One Blog Post
Andrew Hyman

A primary purpose of Section One of the Fourteenth Amendment was to entrench, or establish a firmer constitutional basis for, various provisions in the Civil Rights Act of 1866.  The Citizenship Clause of the Fourteenth Amendment was modeled after the citizenship clause in the Civil Rights Act of 1866.  The framers of that statutory citizenship clause had worried that rights associated with statutory citizenship would be vague unless specified, and so they did specify them explicitly in that Act.  However, when it came time to write the Fourteenth Amendment later in 1866, those same legislators did not need to specify any rights of citizenship in the Fourteenth Amendment, because the whole-text canon of interpretation (described by the Eighth Circuit here) ensured that such specification of legal rights was already included elsewhere in the Constitution.  It is true that those older constitutional rights did not include all of the equality rights specified in the Civil Rights Act of 1866, but the Equal Protection Clause of the Fourteenth Amendment is broad enough to encompass every one of the equality rights listed in that Act; after all, the Act’s full title was “An Act to protect all Persons in the United States in their Civil Rights and liberties, and furnish the Means of their Vindication” (emphasis added).

With passage of the Fourteenth Amendment, the Citizenship Clause gave the freed slaves (and all other covered persons) benefit of every legal right that was already conferred by the federal Constitution upon white citizens, and Congress had probably never before the Fourteenth Amendment even attempted to define U.S. citizenship where it explicitly was mentioned in the Constitution (i.e. in the clauses regarding eligibility for federal office).  The Equal Protection Clause ensured that the freed slaves could also benefit from the equality rights specified in the Civil Rights Act of 1866.

The Equal Protection Clause has been correctly interpreted to extend way beyond matters of race (the clause does not mention race) but has been incorrectly interpreted in a way that shuts out Congress which was not the clause’s original meaning.  As Jonathan Mitchell (at pp. 1285-86) and myself (at p. 81) have both emphasized, the clause requires a state to provide equal protection “of the laws” rather than merely “of its laws,” and so federal statutes were meant to play a substantive role, alongside the judicial role of ensuring that Congress does not exceed its bounds.  If and when Congress does nothing under this clause, then a state is merely required to provide whatever meager equal protection its own laws may require, but Congress has implied power to ensure that whatever protection a state provides is provided equally.  Unfortunately, judges have written out the last three words of the clause, as Judge Jack Weinstein once inadvertently explained: “The Fourteenth Amendment to the United States Constitution provides that no state may deny equal protection to any person within its jurisdiction.”

As for the Privileges orImmunities Clause written in 1866, it simply gave to all U.S. citizens a guarantee that the rights conferred by the Citizenship Clause would bind the states, and not just the federal government.  In other words, the Citizenship Clause already implicitly guaranteed that the federal government would give people who are entitled to U.S. citizenship the "privileges or immunities of citizens of the United States," and the message of the next clause is simply that states must give them as well.  Unfortunately, the U.S. Supreme Court eventually construed this to mean that states must respect free speech only insofar as federal politics are being discussed, and must respect gun rights only insofar as the guns are used to carry out federal citizenship responsibilities, et cetera.  Taken to its logical conclusion, you may pray so long as you are praying for your federal government.  That absurd sort of limitation on Bill of Rights freedoms has no basis in anything anyone ever said during the period from 1866 to 1868 when the Fourteenth Amendment was drafted and ratified.

One occasionally hears that the Privileges or Immunities Clause does not include constitutional rights of persons, but by 1866 it was well-settled that the analogous Privileges and Immunities Clause of Article IV (sometimes called the Comity Clause) entitled visiting citizens from out-of-state to all fundamental rights of in-state citizens, without subtracting fundamental rights of in-state residents who were not citizens.  One also sometimes hears that the Privileges or Immunities Clause includes the vast array of unenumerated federal constitutional rights that citizens enjoy vis-à-vis the federal government in every state because of the limited nature of federal power, but actually those rights (and also certain enumerated constitutional rights that only apply within the states) are not enjoyed vis-à-vis the federal government in areas of plenary federal power such as the District of Columbia, and so they cannot be among the privileges or immunities of citizens of the United States.  Further, one sometimes hears that the Privileges or Immunities Clause includes a right to travel, but actually the Citizenship Clause (in particular its grant of state citizenship) reinforces the Comity Clause which grants to citizens visiting from out-of-state the same rights of ingress and egress as in-state citizens enjoy.  Notice that the Comity Clause does not apply to places like the District of Columbia, so it is not a nationwide federal legal right, and therefore is not a privilege or immunity of citizens of the United States; this clause was on shaky ground after the U.S. Supreme Court suggested in Kentucky v. Dennison (1861) that a state's compliance with Article IV may sometimes be optional, but the ability of Congress to enforce this clause was assured by Section 5 of the Fourteenth Amendment in conjunction with the Citizenship Clause’s grant of state citizenship (which impliedly includes the legal rights of state citizenship already contained in the whole text of the Constitution).

Finally, this brings us to the Due Process Clause, which of course replicated a clause in the Fifth Amendment.  That clause of the Fifth Amendment was obviously not incorporated against the states in 1868 via the Privileges or Immunities Clause as to non-citizens, and even as to citizens the Privileges or Immunities Clause did not prevent states from violating Bill of Rights liberties by methods other than making or enforcing laws.  That explains why the Due Process Clause was added, but does not explain what it means, which is a relatively easy mystery to solve.  

Originally, in England where this clause originated, “due process of law” meant judicial proceedings that are owed according to the law of the land, i.e. according to common law, customary law, or statute law (which was supreme).  But there were some misunderstandings about this subject in America during the Confederation period, and it came to be accepted that “due process” also meant judicial “procedures” (a narrower concept than judicial “proceedings” which may include substantive decisions) that are owed according to principles of liberty and justice (a broader concept than principles embodied in the law of the land).  The old English meaning and the newer American meaning both became accepted by the U.S. Supreme Court prior to the Civil War (instead of the word “procedure” the Court used the equivalent term “modes of proceeding”), but neither the Supreme Court nor the larger legal community as of 1866 predominantly accepted the hybrid notion pushed by some libertarians and state judges that “due process” should also mean substantive judicial proceedings that are owed according to principles of liberty and justice.  That latter hybrid notion, which is at once broader than the old English rule-of-law meaning and also broader than the procedural American meaning, ultimately caught on decades after the Fourteenth Amendment was adopted.  We are presently suffering with that hybrid doctrine (sometimes called “substantive due process”), and the judicial supremacy it implies, not only because of the gutting of the Privileges or Immunities Clause, but also because of either a mistaken belief that Chief Justice Taney employed such a doctrine in the infamous antebellum case of Dred Scott v. Sandford (1857), or because of a mistaken belief that Taney's alleged use of that doctrine should now be emulated.

Charles Barzun: Constructing Originalism (with Comments from Will Foster)
Michael Ramsey

I was going to give the Baude/Sachs thesis a rest for a while, but...

Charles L. Barzun (University of Virginia School of Law) has posted Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin (19 pages) on SSRN.  Here is the abstract: 

This Essay responds to Professors William Baude and Stephen Sachs’s recent article, Grounding Originalism, in which they offer replies to various criticisms I and others have made of the so-called “positive turn” in constitutional originalism. I argue that their replies still fail to address the core underlying problems plaguing their attempt to “ground” originalism in the legal positivism of H.L.A. Hart. In fact, their somewhat creative interpretation of Hart’s theory demonstrates even more clearly than did their earlier work that their true jurisprudential ally is the anti-positivist Ronald Dworkin.

Thanks to Will Foster for the pointer.  He comments: 

Prof. Barzun suggests in Part II of this fascinating paper that judges do not practice original-law originalism because "courts [do not] explicitly or implicitly demand (even if only indirectly)" that "constitutional and interpretive rules and methods trace their pedigree back to the founding" (p. 4). Barzun thinks many (although perhaps not all) judges "would not care much at all" if it turned out that "the customary features of an area of law developed slowly throughout the nineteenth century" and had no Founding-era pedigree (p. 7). I am not sure that is correct, and the following (admittedly fanciful) thought experiment shows the reason for my skepticism. Let's suppose the original Constitution of 1787 contained the following clause: "Nay Judgeth shalt maketh useth of any Precedent in any Opinion on a constitutional Questioneth." (I use hilariously archaic language here in order to make sure original meaning, and not modern meaning, is doing the work in the hypothetical.) Let's assume there are several dozen extant Founding-era writings from notable figures showing that this clause was understood to ban judges from relying on case precedents when construing constitutional provisions. Now, if stare decisis somehow managed to "develop[] slowly" over time among many judges, I find it hard to believe that "a good many [people] would not care much at all" (p. 7). I think virtually everyone would see stare decisis as an unlawful usurpation, precisely because most people would see that it contradicted the original meaning of the constitutional text. If people wanted to preserve the use of precedent in constitutional cases, they would advocate for an Article V amendment. 
 
Perhaps I am wrong about this. But if I'm right, then it seems Barzun's argument is weakened. In my view, the apparent strength of Barzun's argument in Part II of the paper comes from smuggling in the epistemic difficulties inherent in becoming convinced that some feature was or was not part of the Founders' law. It's often really, really hard to get people to change their deeply held beliefs, and that applies no less in the constitutional context than anywhere else. But that is not inconsistent with the further proposition that, if and when someone does change their beliefs about the content of the Founders' law, they will change their views about the propriety of current judicial doctrine. (It's worth noting that there are at least some real-world examples of people changing their constitutional beliefs due to new historical evidence -- just look at the Second Amendment, which even some liberal professors began to embrace as an individual right in the late 20th century.) 
 
Barzun's article also contains some more technical discussion of H.L.A. Hart's positivist philosophy. Interestingly, Barzun interprets Baude and Sachs as conceptualizing original-law originalism as a subordinate legal rule, and not "itself part of our rule of recognition at all" (p. 7). I confess I had always thought original-law originalism was itself the rule of recognition under Baude and Sachs' theory. Barzun, however, thinks Baude and Sachs believe "the rule of recognition in the US is what Baude and Sachs call 'the official story' of American law, which includes things like 'We treat the Constitution as a legal text, originally enacted in the late eighteenth century'" (p. 7). Yet, as Baude and Sachs state in their "Grounding Originalism" abstract, "our system’s official story is that we follow the law of the Founding, plus all lawful changes made since." The official story, in other words, is that we practice original-law originalism. (The fact that we treat the Constitution as an 18th-century legal text serves, along with various other facts, as evidence that establishes the official story of original-law originalism.) And I think legal officials do seem to treat original-law originalism as the rule of recognition, even if they often apply this rule incorrectly. 
 
Finally, Barzun includes some fascinating discussion of positive law in Nazi Germany, and also makes the provocative claim that Baude and Sachs' theory shares more of an affinity with Dworkin than Hart. Although I do have some thoughts on these matters, I will leave it to Baude and Sachs to respond, as I suspect they will do in their article "The Official Story," apparently coming "soonish." Ultimately, though I'm skeptical of some of Barzun's contentions, I still wholeheartedly recommend his important and delightfully readable article!  

08/18/2019

Jack Balkin: Translating the Constitution
Michael Ramsey

Jack M. Balkin (Yale University - Law School) has posted Translating the Constitution (43 pages) on SSRN.  Here is the abstract:

Lawrence Lessig's recent book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019), restates and expands his important and influential theory of interpretive fidelity as translation.

This book review is in three parts. Part One explains why, although Lessig's theory is based on fidelity to original meaning, his originalism is unlike most contemporary versions. Indeed, despite his metaphor of translation, Lessig is not really a textualist at all. Unlike most contemporary originalists, he pays relatively little attention to parsing the words of constitutional text, or to their history. Instead, he is a purposivist and structuralist, who argues that fidelity to purpose and structure in changed contexts may sometimes justify departing from the text or adding things to the text.

Part Two examines Lessig’s use of the concept of social meaning to explain and justify many of the Supreme Court’s most famous liberal decisions, including Brown v. Board of Education, the sex equality cases, the reproductive rights cases, and the gay rights cases. Lessig's concept of "social meaning" actually refers to changes in elite consensus among the relatively small groups of elites who form the audience for Supreme Court Justices. Lessig's arguments are an imaginative restatement of the American Legal Process tradition, but using a different vocabulary. In an age of polarized elites like today, however, Lessig's social meaning account threatens to break down, as Lessig himself recognizes.

Part Three considers whether a purely internalist theory of constitutional change like Lessig’s is adequate to explain the growth and development of the American Constitution. It argues that Lessig’s account of change relies too much on how the world looks to the Justices, rather than on how the world actually changes; it also relies too much on winner's history. His account could be made stronger by focusing on the role of political parties, social movements, and state-building in constitutional change; and the long-term construction of judicial review by the political branches. The result would no longer be purely internalist. But it might be a more powerful account of the complicated processes of constitutional change.

(Via Balkinization).

08/17/2019

John O. McGinnis: The Court, the Fed, and Our Mixed Regime
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law) has posted The Court, the Fed, and Our Mixed Regime (29 pages) on SSRN.  Here is the abstract: 

This essay argues that the enduring political concept of the mixed regime is a better way than the separation of powers to understand the operation and dilemmas of the two institutions most central to our market, rule-of-law society—the Supreme Court and the Federal Reserve. The theory of the mixed regime asserts that combining popular and aristocratic elements produces a more stable and flourishing polity than relying on democracy alone. In our regime that aristocracy is the intellectual professional elite who dominate the functioning and culture of these institutions and largely determine how they will change. But in a society that appears on its surface to be democratic, the mixed regime gives rise to similar dilemmas for both these institutions, such as a countermajoritarian nature that is in tension with popular will, an insulated decision making that is in tension with benefits of broader inputs, and a discretionary power that in tension with stability that a mixed regime is supposed to deliver. These dilemmas lead to periodic pressures for both institutions to subject themselves to rules, such as originalism for the Court and the Taylor Rule (a fixed formula for interest rate changes) for the Fed. Because intellectual elites ultimately protect the independence of both institutions and underwrite their stability, their growing polarization threatens to undermine the continuity and beneficence of our mixed regime.

08/16/2019

Kian Hudson on Originalism
Michael Ramsey

At Liberal Currents, Kian Hudson (Deputy Solicitor General of Indiana): Originalism: Its Problems and Its Promise.  Here is the introduction:

In 2016 federal prosecutors charged Terance Gamble with violating the federal law prohibiting felons from possessing firearms. Gamble’s case could hardly have been more run-of-the-mill; federal prosecutors bringthousands of these felon-in-possession cases each year. Yet Gamble argued that because he had already pleaded guilty in Alabama to a felon-in-possession charge arising from the same incident, the Fifth Amendment’s Double Jeopardy Clause (which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”) barred the subsequent federal prosecution. Supreme Court decisions going back to the mid-nineteenth century, however, have held that criminal statutes adopted by different sovereign authorities necessarily constitute different offenses and that the Constitution therefore permits consecutive state-federal or federal-state prosecutions. Gamble’s case, which the Supreme Court decided last June, asked the Court to reconsider this “separate sovereigns” doctrine.

Putting aside precedent (a crucial issue we’ll return to below), how should a judge approach such a question? One method—commended by Ilan Wurman’s A Debt Against the Living: An Introduction to Originalism—would ask whether the Double Jeopardy Clause was originally understood to prohibit a prosecution under federal law when the defendant has already been prosecuted for the same conduct under an otherwise-identical state law. Other options include asking, a la Richard Posner, whether the Double Jeopardy Clause could be interpreted to bar such prosecutions and whether it would be goodpolicy to do so. Or a judge might channel Ronald Dworkin and ask whether prohibiting subsequent prosecutions is more or less consistent with the Double Jeopardy Clause’s underlying principles.

Although these and other alternatives continue to have their proponents (especially in the legal academy), the originalism defended by Wurman and others is ascendant. Many of the Supreme Court’s decisions in the latter half of the twentieth century partake not so much in the structured discipline of a classical symphony as in the self-conscious improvisation of a free-style jazz session. Today, however, Republicans have elevated self-proclaimed originalists Neil Gorsuch and Brett Kavanaugh to the Supreme Court, and scores of other originalist-minded jurists have joined the lower state and federal courts. Originalism can even claim bipartisan support: Elena Kagan, President Barack Obama’s second Supreme Court appointee, declared to the Senate Judiciary Committee that “we are all originalists,” explaining that every judge seeks to “apply what they [the Framers] say, what they meant to do.”

Originalism is not without its detractors, of course. In his recent Liberal Currents review of Wurman’s book, Adam Rust reprises many of the common critiques. Notably, Rust declines to raise two of the most popular criticisms: he argues neither that originalism produces outcomes that are practically or morally unacceptable, nor that it improperly subjects modern Americans to rule by the dead hand of the past, as Thomas Jefferson once mused. Rust instead says originalism does not work even on its own terms: he argues originalism is (1) practically impossible, (2) too beset by internal disagreements to give judges concrete guidance, (3) unable to cabin judicial discretion, and (4) a cover for conservative policy preferences.

Some of these arguments point to genuine problems for originalism—and Rust does not even mention the problem of precedent, perhaps the single greatest difficulty confronting originalists today. Yet these problems simultaneously underscore one of the theory’s great virtues: the problems arise because originalist decisions can be wrong and can be shown to be so. Originalist decisions are, in other words, falsifiable. And they are so precisely because originalism obliges judges to ground their decisions in objective evidence regarding what the Constitution’s provisions were originally understood to mean. No theory of constitutional adjudication can make judges unbiased or omniscient. But originalism’s falsifiability gives it the resources to identify and correct decisions that are unsubstantiated, inconsistent, or unprincipled. The problems Rust has identified, far from undermining originalism, underscore its promise—that constitutional interpretation, like the Constitution itself, can slowly become “more perfect.”

And in conclusion:

Judges’ ability to mask policy choices—via precedent or anything else—is an intractable problem of constitutional law. Not even originalism can fully solve it. It cannot prevent even the most conscientious of judges from exercising policymaking discretion—not least because a properapplication of originalism will interpret some constitutional provisions to require judges to account for policy considerations in applying the law to facts.

But that does not mean that we should discard originalism and embrace forthright judicial policymaking. There is a reason why courts generally do not announce that they are vindicating their personal policy preferences (at least unless the law authorizes them to do so). The occasional hypocritical opinion is, we might say, the compliment judicial vice pays to jurisprudential virtue.

Originalism’s promise is not that it will ensure judges will always reach the right answer. Its promise, rather, is that it leads judges to at least ask the same question. And, as Gamble (and United States v. Haymond, another recent criminal case with dueling originalist opinions) demonstrates, this—rather more limited—promise is already being borne out.

As noted in the introduction, the essay is a response to Adam Rust's essay (also at Liberal Currents) reviewing Ilan Wurman's book: Original Leanings: Wurman’s Originalism as Judicial Activism.

(Thanks to Adam Gurri, editor-in-chief of Liberal Currents, for the pointer.  Both essays are outstanding, and on a personal note it's great to become acquainted with the Liberal Currents site, which I hadn't known about before and which has a range of interesting content).

08/15/2019

Corpus Linguistics Briefing in the Supreme Court's Second Amendment Case
Michael Ramsey

A pointer from Neal Goldfarb (LAWnLinguistics): 

In New York State Rifle & Pistol Assn. v. City of New York, the Second Amendment case that's currently before the Surpreme Court, two of the amicus briefs filed support of have the City are based on corpus linguistics.
 
One of them is my brief, which argues that the corpus data undermines Heller and that Heller should therefore be revisited, but that this is not the case in which that should occur. The brief argues that with respect to the Second Amendment issue, the petition should be dismissed as improvidently granted.
 
The other one was filed by Dennis Baron (who was one of the amici on the linguists' brief in Heller), Stefan Th. Gries (a linguist whose specialties include  corpus linguistics), Jason Merchant (also a linguist), and Alison LaCroix (University of Chicago Law School).
 
Related:  His most recent in a series of posts on corpus linguistics and the Second Amendment is here: Corpora and the Second Amendment: “keep and bear arms” (Part 1).

08/14/2019

Claimants Win Contracts Clause Case in the Eighth Circuit
Michael Ramsey

In Association of Equipment Manufacturers v. Burgum (Judge Colloton, writing for himself and Judge Stras), with this discussion of the contracts clause's original meaning and subsequent history:

As a matter of the text and original meaning of the Contract Clause, there seems to be little doubt that the North Dakota law would be unconstitutional. The Clause’s terms are absolute: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .” U.S. Const. art. I, § 10, cl. 1. The Clause’s principal target was debtor-relief legislation that many States had passed in the wake of the Revolutionary War, see Sveen, 138 S. Ct. at 1821, but the text is not so limited, and historical context suggests that the Clause was “aimed at all retrospective, redistributive schemes in violation of vested contractual rights.” Douglas W. Kmiec & John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. L.Q. 525, 533-34 (1987). The Supreme Court, through Chief Justice Marshall, understood the Framers “to have intended to establish a great principle, that contracts should be inviolable,” and concluded in an early case construing the Clause that the Court should give these words their full and obvious meaning.” Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 205-06 (1819). Even where a state statute was designed to further a legitimate state purpose of assisting poor people who were oppressed by debts, the  Contract Clause forbade legislation that discharged contractual liability without performance. See id. at 206; Kmiec & McGinnis, supra, at 536-37. The Clause did not prevent a State from regulating health, safety, and morals, see Stone v. Mississippi, 101 U.S. 814, 817-19 (1880), but drew the line at efforts “to redistribute resources in violation of vested contractual rights.” Kmiec & McGinnis, supra, at 541; see also Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U. Chi. L. Rev. 703, 715-16, 730-40 (1984) (arguing that while the Contract Clause encompasses a modest police power limitation, “the transfer of wealth by special-interest politics” is the “evil to which the clause is directed”).

Modern jurisprudence, however, has taken a different course. The Court in Home Building &Loan Association v. Blaisdell, 290 U.S. 398 (1934), disavowed that “what the Constitution meant at the time of its adoption it means to-day,” or that “the great clauses of the Constitution must be confined to the interpretation which the framers . . . would have placed upon them.” Id. at 442-43. Blaisdell upheld  Minnesota’s mortgage moratorium law, a form of debtor-relief legislation, against a challenge under the Contract Clause. Id. at 447-48. Yet Blaisdell did not rest on a mere assertion of conceivable public purpose; the Court cited legislative findings, supported by an adequate factual basis, that documented the existence of an economic emergency. Id. at 421 n.3, 444-45; see also Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 486 & n.14 (1987) (upholding state statute where “the legislative purposesset forth in the statute were genuine,substantial, and legitimate”). 

Since Blaisdell, the Court has reaffirmed that the Contract Clause prohibits special-interest redistributive laws, even if the legislation might have a conceivable or incidental public purpose. Allied Structural involved a Minnesota law that sought to protect pension benefits for those who worked for a specific class of employers. See 438 U.S. at 238. A three-judge district court had “no trouble concluding” that the statute addressed “a problem of vital public interest,” namely, “protecting the economic welfare of its senior citizens by assuring the receipt of earned pension benefits as a form of retirement income.” Fleck v. Spannaus, 449 F. Supp. 644, 650-51 (D. Minn. 1977). But the Supreme Court reversed, observing that the law had “an extremely narrow focus” because it applied only to certain employers. Allied Structural, 438 U.S. at 248. The Court ruled that the statute could “hardly be characterized, like the law at issue in the Blaisdell case, as one enacted to protect a broad societal interest.” Id. at 248-49. As such, the Minnesota law was unconstitutional.

Judge Colloton goes on to hold (over a dissent) that the challenged law failed the Blaisdell test, applying a fairly demanding level of scrutiny,  (The dissent would have been much more deferential to the state).

I would describe the result a originalist-influenced, even though the court applies a non-originalist test created by the Supreme Court.  The Court in Blaisdell leaves open some question of how deferential a review it establishes; since in any event Blaisdell establishes a more permissive review than does the original understanding, originalism indicates that, at least, a court should apply a strict version of the Blaisdell test.

(via Volokh Conspiracy's "Short Circuit").

08/13/2019

More from Eric Segall on Originalism as Our Law
Michael Ramsey

At Dorf on Law, Eric Segall:  Originalism as Current Law? Yet Another response to Baude and Sachs.  From the introduction: 

Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role.

The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here. The third and fourth sentences of this essay state that "originalism is best understood as a claim about modern law-which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed."

Their entire essay (with one small exception discussed below) ignores the argument that the "law" of the past in constitutional law is composed of imprecise text, contested history, political practices that often lead to opposing perspectives about the issue of the day, and Supreme Court precedent which is mostly dictated by values, politics, and experiences, not history. In sum, once again, Will and Steve do not address in any serious way the realist critique. They are avoiding it like the plague (I have drawn their attention to it on numerous occasions in person and in writing). For two legal positivists, this avoidance is important. ...

08/12/2019

Two-and-a-Half Cheers for Baude and Sachs' Positivist Originalism (Part 2)
Will Foster

This is the second of two posts discussing Will Baude and Stephen Sachs’ positivist originalism, as explicated most recently in their article “Grounding Originalism.” My first post defended Baude and Sachs’ thesis (that a form of originalism is “the law” as a matter of social fact) against a powerful recent critique by Eric Segall entitled “Originalism Off the Ground.” In this second installment I wish to note some concerns I still have about Baude and Sachs’ project. 

First, earlier I characterized Baude and Sachs’ view as being that the original meaning of the Constitution is the ultimate criterion for constitutional law. However, a more precise statement of their current view is that they believe Founding-era law is the ultimate criterion for constitutional law (they have thus called their view “original-law originalism”) (Grounding, p. 1457). To succeed in their positivist quest, therefore, Baude and Sachs must prove that we really accept the Founders’ entire law (plus lawful changes) as binding. However, it could conceivably be the case that many Americans merely accept as law the “thin” original semantic meaning of the words found in the text, and do not care about the legal rules the Founders would have used to clarify vague provisions (perhaps most people think it’s fine to impose, say, Dworkinian moral readings so long as the text is not completely contradicted). Or maybe many Americans treat as controlling the Framers’ intended meanings, not the “original law” per se. Indeed, people don’t usually present originalism as a theory of lawful changes; they present it as a theory of meaning (whether derived from public meaning or subjective intentions). On balance, though, I think Baude and Sachs probably have the better view: That original interpretative rules do matter. For example, my intuition is that if irrefutable historical evidence were discovered that the Founders actually intended the Constitution’s text to be completely and entirely ignored after 20 years, then everyone would start ignoring the text, even the most die-hard “textualist” originalists. That said, the matter may deserve further study. 

Second, Baude and Sachs’ definition of what counts as an originalist argument, although in many ways quite sensible and attractive, is so capacious that it seems to swallow nearly every possible argument that someone might make in American constitutional law. Consider, for example, Sachs’ example of a non-originalist argument: “Suppose someone wanted to argue for the Reynolds [v. Sims] rule … [but] conceded that equal apportionment was not the law at the Founding, that it was not validly adopted in 1868, that it does not follow from applying rules to changing facts, that the Court had not been authorized to impose the rule on its own, that its decision does not deserve respect as a matter of stare decisis (or any other doctrine finding its roots in the Founding era), and so on. They just think, notwithstanding all this, that Reynolds is still the law … Whatever else you might say about that position, it isn’t originalist” (Sachs, p. 866).

 The definition of an originalist argument Sachs is using here is quite broad, to put it mildly. Through their “positive turn” in originalist scholarship, Baude and Sachs say they are trying to move away from the sorts of “conceptual” arguments about why originalism is essential -- e.g., the argument that originalism is the only coherent way to run a legal system based on a written constitution. Rather, Baude and Sachs treat originalism as a contingent result of the (potentially unique) way America’s legal system works. However, because their definition of an originalist argument is so broad it seems likely that most other countries also use lots of originalist arguments in their legal systems. So presumably they are originalist too. It is difficult for me to imagine how any remotely sensible legal system could not be originalist in the sense Baude and Sachs describe. (Baude has suggested some real-world possibilities (Baude, pp. 2401-02), but I remain a bit skeptical.) 

Under Baude and Sachs’ paradigm, it appears virtually any sort of reasoning the Supreme Court might use can be described in fundamentally originalist terms (although it might not be correct originalist reasoning as a historical matter). For example, David Strauss could argue that his common-law constitutionalism derives from the Founders’ law because, he could contend, the common-law method was known and expected at the Founding. Even an argument like the following one (only tangentially related to the constitutional text) would apparently be originalist: A primary goal of the Founding Fathers in enacting the Constitution was to promote happiness. Teddy bears promote happiness. Therefore, the federal government is constitutionally obligated to provide every citizen with a free teddy bear. To be sure, this might not be a very good originalist argument, because there is no historical support for it, but this change in nomenclature still marks a major shift from when the argument would not be considered originalist in any way, shape, or form. Chris Green seems to wholeheartedly accept the implications of a broad definition of what counts as an originalist argument, writing that “[b]y my lights, all 9 [Supreme Court] justices are originalist … Some are more explicit, but none of them has repudiated the commitment itself, which would require resigning from office.” I do not believe Baude and Sachs have explicitly stated whether they agree with that statement, but I cannot see any reason why they wouldn’t.

That sort of rhetoric would seem to render incoherent the frequent dichotomy drawn, particularly by conservatives and libertarians, between (ostensibly) principled originalist judges and (ostensibly) activist living constitutionalist judges. If most or all judges are originalist, then the difference between, say, Neil Gorsuch and Merrick Garland is essentially a difference in degree -- not, contrary to what is often assumed, in kind. In other words, the difference would be between good originalists and not so good originalists, rather than between originalists and non-originalists. (To be clear, I am not necessarily implying that Gorsuch is a better originalist than Garland; indeed, I suspect there are even some self-proclaimed originalists who would take the contrary position.) 

In a prior blog post, Segall has put it this way: “If judges are already deciding cases in an originalist fashion … then why the huge political and academic outcry for President Trump (really Leonard Leo on leave from the Federalist Society) to appoint originalist judges as if that would be a serious break from tradition?” I am not sure if I am entirely comfortable with the conclusion that the difference between Merrick Garland and Neil Gorsuch is merely one between different types of originalists. I am thus inclined to sympathize with Lawrence Solum’s statement that “the failure to draw a line between originalism and living constitutionalism engenders conceptual confusion and strong metalinguistic resistance” (Solum, p. 1277). Indeed, “the view that living constitutionalism is inconsistent with originalism … captures an important feature of the mainstream of constitutional discourse” (Solum, p. 1281). Chris Green has suggested on this blog the term “meta-originalism” to describe original-law originalism, “because it can encompass those who think that we have always had a common-law, intergenerationally-authored Constitution.” That all being said, however, I am not yet entirely sure whether Solum’s (or Green’s) preferred definition of originalism is any better than Baude and Sachs’ definition, despite the concerns the latter may raise. And indeed the difference between the definitions may not really be all that important, given that (in my view and that of most originalist scholars) the Founders’ law affirmed fixation and constraint with respect to the text’s communicative content. So even if “originalism” is properly limited to the communicative content/sense definition, it may be that this “originalism” is simply a straightforward corollary of Baude and Sachs’ “meta-originalism.” 

Another question about original-law originalism that I’m still struggling with is this: How can it be legitimate to rely on the law’s supposed “deep structure” to radically change current day-to-day practices? As Richard Primus has noted, the fact that people might accept originalism done badly (e.g., Obergefell’s unsupported conclusion about the original meaning of the Due Process Clause) hardly proves that they’d accept it done well. Even if people have a vague sense that the original meaning is the law, they might not be willing to do any serious historical research to find that original meaning. Baude and Sachs suggest that the sort of motivated reasoning found in half-hearted appeals to the Founders “still admits the force of originalist arguments that might wake us from our dogmatic slumbers” (Grounding, p. 1487).  “The deep structure of our legal system is a question of present law, not a prediction of future behavior,” Baude and Sachs say (Grounding, p. 1476). Perhaps, but as a practical matter the persuasive power of appeals to original meaning in our current culture seems quite weak (i.e., even if departures from original meaning are theoretically subject to originalist refutation, it’s not clear that this can actually happen very often). For example, most Supreme Court justices seem to ignore Justice Thomas’ solo originalist concurrences and dissents; if they were genuinely interested in finding the original meaning, it is hard to understand why they would not provide any citation or response to Thomas’ opinions in their own opinions. Then again, perhaps thinking about Supreme Court justices (most of whom are rather old and have well-settled beliefs) is not a representative example; perhaps appeals to original meaning would have greater persuading power among younger lawyers and scholars. On balance, I am still inclined to side with Baude and Sachs on this question, but it is a very difficult one. 

Finally, it is important to consider the implications of the thesis that originalism is our law for judicial conduct. The optimistic view is that because virtually all judges are originalist, everyone is essentially on the same team, trying to do the same basic task (kumbaya!). The pessimistic view is that, because most (all?) judges are originalist but some presumably are not very good originalists, it might appear that some judges are basically incompetent at applying their own methodology (and perhaps should therefore be impeached). That is a rather startling conclusion, and perhaps there is some way to avoid it, but it does seem that characterizing interpretative methodologies as law (contra, e.g., Asher Steinberg) would have some consequences for how we view the Supreme Court (and other judges). Under a pluralist “modalities” conception of constitutional law, a certain amount of methodological disagreement can be tolerated. I am not sure the same can be said if originalism is our exclusive law. (To be sure, I am not necessarily saying this is a bad thing.) 

So, to sum things up: I agree with Baude and Sachs that the framework of positive law is the best way to justify originalism, and I believe that their project basically succeeds. However, as to the precise outlines of their theory I have a few concerns that I’m still struggling with, some semantic and some more substantive.

08/11/2019

Two-and-a-Half Cheers for Baude and Sachs' Positivist Originalism (Part 1)
Will Foster

In a new article entitled “Originalism Off the Ground,” Eric Segall inveighs against the efforts of scholars Will Baude and Stephen Sachs to prove that originalism is currently America’s constitutional positive law. “Our actual law,” Segall contends, is driven by “non-originalist values” (Segall, p. 102). Segall’s writing is, as always, thought-provoking and incisive. But although I have a few reservations about Baude and Sachs’ project, overall I am not convinced that Segall’s attack on positivist originalism is as devastating as he hopes. 

Segall’s own descriptive account of constitutional law is that “[t]here is substantial data … that strongly suggest[s] that where judges have legal discretion, their values, experiences, and politics determine the sum and substance of our law” (Segall, pp. 101-02). To a large extent it is difficult to disagree with that assessment. But is Segall’s descriptive account the right kind of descriptive account if we want to figure out what the law requires? I do not believe so, for the reasons Baude and Sachs give in the article to which Segall was responding, “Grounding Originalism” (see particularly the Al Capone thought experiment on page 1469). 

So what is our current law? Although this is not an easy question to answer, I agree with Baude and Sachs that current social practice points toward a form of originalism in which “the original meaning of the Constitution is the ultimate criterion for constitutional law, including of the validity of other methods of interpretation or decision” (Baude, p. 2352). (Actually, Baude and Sachs’ view is a bit more nuanced than that, but for now this definition will work best.) Assuming (as most do) that stare decisis was accepted by the Founders, this form of originalism permits judges to use a doctrine of precedent. 

Segall correctly notes (and Baude and Sachs do not deny) that the American people have accepted many Supreme Court rulings departing from the Constitution’s original meaning (Segall, p. 104). But, as Larry Alexander insightfully notes, “[The people] have generally acquiesced in those departures, even ones that they have disliked. But have they been aware that those departures were departures?” (Alexander, p. 24). Like Alexander, I believe the answer, on balance, is no. If I’m right, then those departures remain “vulnerable to originalist refutation,” at least in theory (Grounding, p. 1481). As Baude and Sachs have argued elsewhere at much more length, even if it’s true that the Supreme Court has frequently departed from the Constitution’s original meaning (Segall, pp. 103-04), that does not refute the thesis that the “deep structure” of current law is originalist. (Baude and Sachs’ evidence is summarized in a helpful seven-point list on pages 1477-78 of “Grounding Originalism.”) Segall responds that “the ‘deep structure of the law’ does not resolve cases, judges do” (Segall, p. 113). This is true, but largely irrelevant. The natural world does not conduct experiments, scientists do; yet no one describing the scientific method would say that scientific inquiry is focused mostly on observing the practices of scientists. 

Segall does correctly note that “[c]onstitutional law comes with a heavy mix of legal and policy content” (Segall, p. 107). This is a very powerful point. As Segall puts it, why shouldn’t we say “policy arguments are our law”? (Segall, p. 107) Arguments like those Segall describes -- “The Justices’ abortion decisions were wrong because the fetus is a human being,” “Citizens United increases the role of money in politics,” etc. (Segall, p. 106) -- do indeed appear to be commonplace in our culture. Perhaps this means the living Constitution has won, and the document’s meaning depends on the latest popular sentiments. Ultimately, however, I am not persuaded by Segall’s argument on this point. First, there may be a relevant distinction between the informal way lay people talk about the law and the actual, formal law. Second, it is not clear that even the general public views the law as reducible to partisan preferences, even if at a superficial level that may appear to be so. Take Citizens United, for instance. I would be very surprised to find someone who A) believes that the historical argument in Justice Scalia’s concurrence and the precedential analysis in Justice Kennedy’s opinion were spot-on but B) describes Citizens United as “wrongly decided.” I think when people make arguments that sound a little like “The case was wrongly decided because the practical consequences were so bad,” what they really mean is “The case was wrongly decided as a legal matter, and that is doubly unfortunate because the practical consequences are so bad.” Now, on the legal aspect, members of the public often simply defer (explicitly or implicity) to the statements of particular judges or law professors that they side with politically and therefore identify with. That is, I think, why it might seem at first blush like the standard of legal correctness in America has become good political consequences. 

A similar reply can be made to those who might argue that our culture treats Supreme Court decisions as ultimate law (Segall, pp. 109-10). It is undoubtedly true that many Americans say things like “Roe v. Wade secures a constitutional right to abortion.” However, I think most people who support a right to abortion probably believe or assume that Roe was a correct interpretation of the Due Process Clause’s original meaning, particularly given the powerful forces of confirmation bias and motivated reasoning. (To be clear, I express no personal opinion here as to Roe’s merits.) Even those who do not believe Roe was correct as an original matter likely still believe a doctrine of stare decisis is permitted by Article III’s original meaning, and therefore do not see themselves as violating the Constitution’s original meaning when they adhere to Roe. Admittedly, most people don’t explicitly draw the sort of connections to original meaning I’m making here. Still, I think the connections are present, even if they are sometimes obscured in a discourse chock-full of heuristics. (Sachs’ 2014 article “The ‘Constitution in Exile’ as a Problem for Legal Theory” has some excellent discussion along these lines on pages 2276-78.) 

I believe even the Supreme Court justices not typically considered originalist actually believe their decisions are in accordance with original meaning. For examples of them saying this explicitly in opinions, see Ginsburg’s NFIB opinion, joined by Breyer, Sotomayor, and Kagan; Stevens’ McDonald dissent; Stevens’ Roper concurrence, joined by Ginsburg; and Kennedy’s Obergefell opinion, joined by Breyer, Sotomayor, Ginsburg, and Kagan. Ginsburg and Kagan have also explicitly described themselves as “originalists.” Senator Dianne Feinstein’s statement during the Gorsuch hearings suggests that she too looks to the Founders’ authority: She believes the Constitution is a “living document” in part because to “evaluate our constitutional rights and privileges as they were understood in 1789” would in her view “ignore the intent of the Framers that the Constitution would be a framework on which to build.” (Incidentally, I seem to recall seeing a fellow group of students at my high school make a similar argument in a paragraph of their Civics paper this spring -- the Constitution is a living document precisely because that’s what the Founders allegedly wanted.) 

The historical claims made in favor of evolving interpretations must be put to the test, of course (cf. Segall, pp. 105-06). But the fact that they are made reveals the deep originalist strain in our constitutional culture. The fact that “because the Founders wanted us to” counts as a valid reason -- perhaps even a necessary reason -- to support a particular interpretative philosophy is a remarkable but unmistakable feature of our legal culture. (Perhaps this feature might be in some ways normatively undesirable, but it’s clearly present.) I have expressed some tentative sympathy for Baude and Sachs’ originalism on this blog in the past, and after reading their more recent work and thinking through some of the problems myself, I have come to agree wholeheartedly with their essential thesis. I believe current positive law requires judges to be Baude/Sachs-style originalists, and also that this fact is the best reason to be an originalist. It seems to me that some form of originalism is the only way to adequately account for the enormous cultural salience of the Constitution’s text. Ultimately, our constitutional practice is rooted in the choices the Founders made, to write certain things down, with certain meanings, and not other things. I am now a complete convert to positivist originalism. 

Well, almost. I do have a few reservations about Baude and Sachs’ project. I will discuss those in a second post coming soon.

08/10/2019

Nicholas Kahn-Fogel: Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism
Michael Ramsey

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism (43 pages) on SSRN.  Here is the abstract:

In Carpenter v. United States, the Supreme Court reaffirmed the continuing vitality of the privacy framework Katz v. United States established in 1967 for identifying Fourth Amendment searches. Justice Neil Gorsuch, in dissent, critiqued Katz as indeterminate, insufficiently protective, and inconsistent with democratic values. In this article, I analyze Justice Gorsuch’s proposed alternative framework, which he described as the “traditional approach” to determining Fourth Amendment interests. Instead of grappling with the indefinite and textually and historically unfounded “reasonable expectations of privacy” framework of Katz, Gorsuch asserted, this traditional test would require judges to focus on whether a “house, paper, or effect was yours under law.” Although Gorsuch offered preliminary thoughts on this rubric, his opinion left open important questions, including the sources of law to which the Court should look in identifying property interests; the breadth of the definitions of “papers” and “effects” and the kinds of property closely enough associated with the person for potential implication of Fourth Amendment rights; and the ways in which government conduct impinging on such property interests might trigger Fourth Amendment protection. Several passages in Justice Gorsuch’s opinion suggest that he would take a broad, flexible approach to each of these issues. Overall, whatever ambiguities exist in Gorsuch’s dissent, it is certain that his property model would be more expansive than the pre-Katz trespass test that the Court rehabilitated in 2012. If that is the case, however, then the results that courts would be likely to reach under this framework might closely resemble outcomes under a principled privacy-based analysis. Moreover, in situations in which the “traditional approach” fails to protect asserted Fourth Amendment rights, Gorsuch might be willing to rely on Katz despite its shortcomings. Finally, because a broad property rubric would involve a significant degree of judicial discretion, such an approach could negate its own ostensible virtues, such as greater determinacy and democratic legitimacy. Nonetheless, Justice Gorsuch might prefer a flexible “traditional approach” to Katz because its explicit attention to the language of the Fourth Amendment is more conceptually elegant and, at least aesthetically, more consistent with Gorsuch’s originalist sympathies.

08/09/2019

Mark David Hall on Andrew Seidel on the Founders and Religion
Michael Ramsey

At Law & Liberty, Mark David Hall (Professor of Politics, George Fox University): Unlearning The Founding Myth (reviewing [harshly] Andrew L. Seidel, The Founding Myth: Why Christian Nationalism is Un-American).  From the introduction:

Andrew L. Seidel, an attorney with the Freedom From Religion Foundation, is an atheist, and an angry one at that. His recent book, The Founding Myth: Why Christian Nationalism is Un-American, is, in his own words, “not a work of academic history but an argument, an attack. Specifically, it is an attack on Christian nationalism.” There is nothing wrong with attacking something that needs to be attacked, but if an author hopes to convince the unconvinced, he or she needs to use evidence fairly, make persuasive arguments, and perhaps even do these things in a winsome manner. Seidel’s book will make no converts.

Apparently believing that ridicule is a persuasive rhetorical strategy, Seidel offers a steady stream of it throughout his work. Two examples will suffice to make this point. In a discussion of the Torah, he likens the God of Abraham, Isaac, and Jacob to a chest-slapping gorilla who issues that First Commandment because he is insecure. Turning to the Gospels, he suggests that the “whole of Christianity may be predicated on Mary’s adultery.” One does not need to be a person of faith to be put off by such depictions, and it is puzzling that a self-described “forward-thinking” press like Sterling would publish them.

(The next section is titled "Misusing Sources," and the essay does not get any more complimentary after that).

08/08/2019

William Treanor on Gouverneur Morris and the Constitution
Michael Ramsey

At SCOTUSblog, William Treanor: The Framer’s intent: Gouverneur Morris, the Committee of Style and the creation of the Federalist Constitution.  From the introduction: 

As the federal constitutional convention drew to a close, the delegates appointed the Committee of Style and Arrangement to prepare a final Constitution from the textual provisions that the convention had previously adopted. Pennsylvania delegate Gouverneur Morris was assigned the task of drafting, and, with few revisions and little debate, the convention hurriedly adopted the committee’s proposed Constitution. For more than 200 years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have either failed to consider that possibility or concluded that Morris was an honest scrivener. Remarkably, however, there is no study that systematically compares the committee’s draft to the previously adopted resolutions. Also remarkably, even though in four decisions in the last 50 years the Supreme Court has concluded that the committee had no right to change the Constitution’s meaning and that any substantive changes it made should be disregarded, there has been little attention to whether the court’s approach is sound. My recently posted article, “Framer’s Intent: Gouverneur Morris, the Committee of Style and the Creation of the Federalist Constitution,” is the first article to focus on the committee’s draft and the ways in which it departed from the text the convention had previously approved and to examine the legal significance of those important changes.

Although largely forgotten today, Morris was a “genius,” in the admiring judgment of both Alexander Hamilton and James Madison. He spoke more often at the convention than any other delegate, and he was a logical choice to be the drafter. Although the committee had other talented members (including Hamilton and Madison), Morris’ speeches evidenced an unmatched gift for language, and he was the committee member with the deepest experience as a constitutional drafter, having been one of the three principal authors of the New York Constitution.

As drafter for the Committee of Style, Morris made a series of subtle changes that his fellow delegates missed (or thought stylistic) when they considered the Committee of Style’s draft but that advanced goals that he had not been able to win during the floor votes. The most prominent examples appear below, but the article discusses 12 substantive changes that Morris made. His changes became central to many of the great constitutional debates of the early republic, and, for originalists, they are central – or should be central – to many of today’s most significant constitutional debates.

An earlier version of Dean Treanor's outstanding paper was presented at the Originalism Works-in-Progress conference in San Diego in February.

08/07/2019

Robert Natelson: More News on Powers Reserved Exclusively to the States
Michael Ramsey

Recently published, in the Federalist Society Review, Robert Natelson (Independence Institute): More News on Powers Reserved Exclusively to the States (20 Fed. Soc. Rev. 92 (2019)).  Here is the introduction (footnotes omitted): 

This essay updates and supplements an article published last in the Federalist Society Review entitled The Founders Interpret the Constitution: The Division of Federal and State Powers.  That article explained how during the Constitution’s ratification debates (1787-90), leading Federalists (the Constitution’s advocates) issued authoritative enumerations of powers that would remain outside the federal sphere under the Constitution if ratified. Most of the enumerators were highly respected American lawyers. The two most important non-lawyers were Tench Coxe and James Madison. Coxe was a Philadelphia businessman and economist, member of the 1789 Confederation Congress, and future assistant secretary of the treasury.

Coxe’s ratification-era writings were highly influential among the general ratifying public—perhaps as influential as the essays in The Federalist. Subsequent interpreters of legal texts generally give considerable weight to representations of meaning presented by a measure’s sponsors. The Federalists enumerating powers the Constitution denied to the central government clearly intended that the ratifying public rely on their representations. These representations squarely contradict claims by some commentators that the Constitution conferred near-plenary authority on the federal government.

This essay serves two purposes. First, it briefly addresses and refutes claims that near-plenary federal power lurks within two seemingly straightforward constitutional grants: the Commerce Clause and the Necessary and Proper Clause. Second, it summarizes how materials reproduced in three newly published volumes in the Documentary History of the Ratification of the Constitution of the United States reinforce the conclusion of last year’s article.

Plus, pp. 94-96, a direct counter to John Mikhail's expansive theory of the necessary and proper clause (see John Mikhail, A Tale of Two Sweeping Clauses, 42 Harvard J. L. & Pub. Pol’y 29 (2018); and John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045 (2014)).

08/06/2019

The President and Withdrawal from Treaties
Michael Ramsey

Last week the United States withdrew from the Intermediate Range Nuclear Forces (INF) Agreement with Russia, pursuant to the Treaty's six-month notification period for withdrawal (the notification was sent in February).  The President directed the notification and withdrawal on his own independent constitutional authority.

I have not seen any substantial constitutional objection to this action -- which is a little surprising given widespread constitutional objections to various presidential actions and the fact that the Constitution says nothing directly about the power to withdraw from treaties.  Perhaps it's assumed that the President has this power as a result of longstanding practice (as discussed by Curtis Bradley here).  But that does not resolve the Constitution's original allocation of the power.

One might say that treaties can be terminated by the President only with the Senate's consent -- the same process by which treaties are made.  But that seems unlikely: appointments are (generally) made by the President with the Senate's consent, but it's not thought that the Senate must consent to removals.  (Some people made that argument in 1789 but they were small minority).  And if the power to appoint does not imply the power to remove, it seems unlikely that the power to make treaties implies the power to unmake them.

Or one might say that Congress has the power to withdraw from treaties.  To an extent, this is surely true.  If a treaty interferes with Congress' exercise of an enumerated power, Congress would seem to have the necessary and proper power to remove the obstacle of the treaty.  Indeed, pursuant to what we now call the "later-in-time" rule, Congress can simply violate a treaty by passing inconsistent legislation.

But this only takes us so far.  First, that Congress has this power does not show that the President lacks it.  Treaty withdrawal could be a concurrent power.  Second, and more importantly, this reasoning only extends to treaties that are within Congress' enumerated powers.  (Some people argue that treaties cannot reach subjects beyond Congress' enumerated powers, but I think the textualist and originalist evidence is firmly against that view, as discussed here).  Assuming treaties can reach beyond Congress' enumerated powers, there seems little basis to say that Congress can withdraw from them.

That brings us back to the President.  But the President's specific textual powers do not seem helpful either.  The power to make treaties with the consent of the Senate surely does not imply the power to withdraw from treaties without the Senate's consent.  The power to receive ambassadors also seems unhelpful, both because treaty withdrawals are not necessarily communicated through ambassadors and because this clause seems an odd place to hide the withdrawal power.  Perhaps treaty withdrawal is a form of law execution (treaties are the supreme law of the land, by Article VI, and withdrawing from a treaty in accordance with its terms might seem like a form of executing it).  So maybe the power comes from the take care clause.  But I think not.  First, I don't think that clause gives any power at all: it describes a duty, not a power. Second, it's a bit awkward to say that one executes a treaty by deciding to no longer execute it.  To be clear, I don't think the take care clause prohibits the President from withdrawing from a treaty (as long as he doesn't violate it), but I also don't think it empowers him to do so.

The solution to this puzzle, in my view, is the executive power vested in the President by Article II, Section 1.  As I've argued at length (e.g., here), this clause (a) is a substantive grant of power and (b) contains, in addition to the power to execute the laws, a variety of foreign affairs powers not otherwise allocated in the Constitution.  Generally speaking, this executive foreign affairs power amounts to the power to manage diplomatic interactions with foreign countries.  And managing relations with treaty partners, including withdrawing from treaties where appropriate, seems to fit well within this power.

So presidential withdrawals from treaties do not worry me as a constitutional matter.  (Presidential violations of treaties are another matter, but that is not today's topic).  But they are a substantial challenge for scholars and commentators who do not accept the Article II, Section 1 executive power in foreign affairs.  It seems highly unlikely that the Constitution provides no way to withdraw from treaties (especially treaties that specifically contemplate withdrawal by notification).  If Article II, Section 1 is not the source of this power, what is?

08/05/2019

Thomas Bettge: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins
Michael Ramsey

Thomas Bettge (independent) has posted Marbury in the Vanishing Cabinet: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins (Willamette Law Review, Vol. 55, No. 1, 2018) (45 pages) on SSRN.  Here is the abstract: 

Although originalism has occasioned substantial rethinking of many facets of our constitutional law, the doctrine of judicial review articulated in Marbury v. Madison has gone largely unquestioned. This article explores the uncertain place of judicial review in the original Constitution, and systematically lays out the consequences of that uncertainty for today's originalism.

The article unfolds the problems originalists face if judicial review was not part of the original constitutional framework. While many scholars in both the originalist and nonoriginalist camps believe that judicial review's place in the original Constitution is well established, this paper scrutinizes the leading scholarship on the history of judicial review and shows that, contrary to popular belief, judicial review's historical bona fides are fundamentally uncertain. Because judicial review cannot be justified on originalist grounds, originalists need to seek other reasons for engaging in it, and must reconcile those reasons with the basic tenets of originalism. To an extent, they have already done this, but significant gaps remain. The article considers what reasons originalists could invoke, and concludes that it will be difficult, absent historical legitimation for the practice of judicial review, for originalists to make an argument for judicial review that favors originalism over competing interpretive theories.

Regular readers know that I am highly unpersuaded by the originalist argument against judicial review so I will refrain from further comment.  But the article's "thought experiment" is interesting -- what if the Constitution's original meaning really does not grant the power of judicial review?  The obvious originalist response of course is: then there is no power of judicial review.  I wonder, is that the only possible originalist response?  I think it is, but it's a question worth asking.

08/04/2019

Andrew Jordan: The (Ir)relevance of Positivist Arguments for Originalism
Michael Ramsey

Andrew Jordan (Judicial Attorney, Ohio Supreme Court) has posted The (Ir)relevance of Positivist Arguments for Originalism (37 pages) on SSRN.  Here is the abstract:

In a series of recent Articles William Baude and Stephen Sachs argue that as a matter of positive law — that is, as a matter of our convergent social practices — a form of originalism is in fact our law. Having provided an account of the content of the law they presume to also have provided an account of sound adjudication. But I argue that this inference requires showing that an account of the content of the law is explanatorily prior to an account of sound adjudication, and I argue that we need not accept this assumption. Indeed, if the positivist view endorsed Baude and Sachs is true, this assumption will turn out to be false. I then provide an account of how the contingent social practices that constitute positive law bear on the further question of how a judge ought to decide a case. And I argue that properly understood the normative relevance of these social practices cannot ground anything like a general duty to apply positive law. Thus, I argue that Baude and Sachs’s positivist arguments have no bearing on the concerns that animate most normative constitutional theorizing — a concern to provide a theory of sound adjudication. Authors who have been concerned about the normative merits of different constitutional theories can safely ignore the positive turn.

08/03/2019

David Rivkin and Andrew Grossman on Originalism and Libel
Michael Ramsey

In the Wall Street Journal, David B. Rivkin Jr. & Andrew M. Grossman: An Originalist Libel Defense.  From the introduction: 

Mr. Trump said in 2016 that he wanted to “open up” libel laws, and in February Justice Thomas wrote a solo opinion arguing that [New York Times v.] Sullivan departs from the Constitution’s original meaning. He has a point: [Justice' Brennan’s reasoning [in his opinion for the Court in that case] is all policy. For decades, originalists like Justice Antonin Scalia have criticized it as an exercise of raw judicial power. Yet there’s a good originalist case for limits on libel law.

And from further along: 

[P]laintiffs often did have to prove actual malice to prevail. The law recognized circumstances in which a libel defendant could assert a “qualified” or “defeasible” immunity from damages and thereby put the plaintiff to the burden of proving “express” or “actual” malice under more or less the same standard Sullivan prescribed. One musty treatise, published in 1877, reports such immunity applies whenever the speaker has a “legal, social, or moral” duty to comment on another’s character, fitness or conduct, including in matters of business, crime, morality or religion. Moreover, libel claims concerning government officials’ conduct were often subject to the actual-malice standard, as were claims for punitive damages. Sullivan’s reasoning was loose, but it didn’t fashion actual malice out of whole cloth.

In conclusion:

Modern originalism is young, and answers to these questions of original meaning often involve some doubt. Yet the Sullivan court might have stumbled onto a standard that comports with the Constitution.

(Thanks to Michael Perry for the pointer).

08/02/2019

Josh Blackman and Seth Barrett Tillman on Equity and Causes of Action in Some Prominent Recent Cases
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman: What is the Plaintiffs' Cause of Action in the Wall Litigation? From the introduction:

On Friday, the Supreme Court stayed the District Court's decision in Trump v. Sierra Club, which had halted the administration's plan to construct a border fence. The Court's short entry on the "shadow docket" offered only a single explanatory sentence:

Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005.

What is the Plaintiffs' cause of action in Sierra Club v. Trump? ...

Ultimately, the Ninth Circuit found there were two possible causes of action: 

Plaintiffs may bring their challenge through an equitable action to enjoin unconstitutional official conduct, or under the judicial review provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., as a challenge to a final agency decision that is alleged to violate the Constitution, or both.

Slip op. at 4 (bold added). The Sierra Club argued that "Plaintiffs have an ultra vires cause of action." The brief adds, "For two centuries, this Court has permitted judicial review of ultra vires executive action without invoking a zone-of-interests test."

This argument closely resembles the briefing in the Emoluments Clauses cases. In District of Columbia & Maryland v. Trump, for example, the two plaintiffs framed their constitutional causes of action in a very similar fashion. They contended that "[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England." Both of these cases invoke "equity" in some fashion. However, it is unclear if plaintiffs are referring to the type of remedy sought (i.e., injunctive relief) or the jurisdiction of the court to hear a class of cases (i.e., equitable jurisdiction). The two concepts are related, but they are not the same.

And from the core of the argument:

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc. (1999) recognized that "the equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act, 1789 (1 Stat. 73)." In order to invoke the equitable jurisdiction of the federal courts, a plaintiff must put forward a cause of action within (or analogous to) the jurisdiction of the High Court of Chancery in England as it stood in 1789. 

At that time, as a general matter, litigants could invoke the court's equitable jurisdiction to stop ultra vires actions by government officers, but only if plaintiff's rights or duties regarding its own property (i.e., as the legal or beneficial owner) were at issue. Alternatively, the court's equitable jurisdiction could be invoked if a cause of action were otherwise supplied by the common law (such as contractual rights or obligations) or by statute.

A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction. Likewise, even if the plaintiff has an Article III injury-in-fact, his bare assertion of illegal or ultra vires conduct by federal officers is insufficient to invoke the federal court's equitable jurisdiction. As a general matter, such a claim could only go forward if there is an invasion (or imminent invasion) of the plaintiff's property rights, or if the case presents an analogous concrete dispute involving the plaintiff's rights or duties regarding his own property. For example, the plaintiff relies on a cause of action within (or analogous to) the jurisdiction of the High Court of Chancery in England as it stood in 1789.

In other words, in both the Wall litigation and Emoluments Clauses cases, the plaintiffs must identify a cause of action (or an analogous cause of action) that would have been available under the equitable jurisdiction of the High Court of Chancery in England at it stood in 1789. Plaintiffs have not even attempted to make such a showing. Indeed, the United States attempted and failed to make such a showing in Grupo Mexicano. As a result, the government's request for relief was rejected. Plaintiffs' purported equitable cause of action, based only on an ultra vires claim, would have been unknown to William Blackstone, Chancellor Kent, or Justice Story.

08/01/2019

Eric Segall on Originalism and Legal Realism [Updated]
Michael Ramsey

Ar Dorf on Law, Eric Segall: Original Intent, Original Meaning, or Let's Call the Whole Thing Off.  From the introduction:

Michael Rappaport and John O. McGinnis, two of our country's leading academic originalists, recently stated in an essay for a Northwestern University Law Review Originalism symposium that "the debate over original intent and original public meaning has launched scores of law review articles." This observation is both accurate and unfortunate, but not for the reasons provided by the authors.

...

I am writing about their essay for a different reason, however, than taking sides in the debate over intent versus meaning. Both Rappaport and McGinnis have devoted their enormous energies to books, law review articles, blog posts, essays, and op-eds, discussing how originalists should go about their business.  I will assume for sake of argument, and I think their book "The Good Constitution" supports this hypothesis, that they are talking normatively, not descriptively. Neither man would argue that originalism of any stripe has been the dominant method the Supreme Court has used over time to decide constitutional cases.

As a theoretical matter, their original methods originalism has properly drawn much academic attention because, and, I'm obviously a case a point, originalism is all the rage right now. But if they expect judges deciding real cases that matter to real people and implicate real laws and policies to adopt their interpretative model, they will be sorely disappointed. As I've written many times in this space, the Justices care little about original meaning and/or original intent when reaching their conclusions (as opposed to after-the-fact rationalizations) and mostly about the actual consequences of their decisions. Paraphrasing retired Judge Posner, constitutional law is about values, politics, and experiences, not text, logic, or history. Ironically, the main example used by Rappaport and McGinnis in their essay to support their interpretative preferences also demonstrates how little "interpretation" matters to judges deciding real cases or even to people debating pressing constitutional questions. ...

And in conclusion:

The constitutional language that gives rise to most litigated cases, phrases such as "equal protection," "due process," and "freedom of speech," have no core original meaning when facts and circumstances change so dramatically. What "equal protection" means when applied to today's affirmative action programs cannot be and has not been decided by judges with regard to what the words meant in 1868 before generations of segregation and apartheid were put in place. What "due process" meant in 1787 or 1868 can't be meaningfully applied to the myriad issues regarding technology and modern trials that judges face today. And, as Rappaport and McGinnis concede in their essay, the rise of the internet will inevitably require new constitutional constructions concerning freedom of speech that cannot be answered through the lens of 1787 or 1868 America.

The on-going academic debates over original intent and original public meaning do not matter to judges resolving these kinds of issues because, contrary to THE core assumption held by originalists of all stripes, the meaning of the text at issue in today's constitutional disputes is not fixed (I'll have an upcoming essay devoted exclusively to this point). Constitutional meaning changes as the Justices on the Court and the society around them change, as even the controversy over the bank, occurring shortly after the Constitution's ratification, dramatically shows. And the inevitable evolving nature of constitutional meaning may in fact be the only thing about constitutional law that has never and will likely never change, no matter how many intramural fights smart and engaged academics engage in over the proper methods of constitutional interpretation.

As is usually true of Professor Segall's insightful critical commentary on originalism, I sort of agree and sort of don't.  I agree that politics and values (or maybe I would say ideology and intuition) play and have always played a big role in constitutional law.  But I don't agree that this reality makes originalism an academic exercise.  Originalism does not depend on the proposition that politics has not been part of judging for a long time, nor on the proposition that politics can be entirely removed from judging.  Rather, its aspiration is to make judging less political than it is under living constitution approaches.

I would also like to hear more about what Professor Segall thinks about fixed meaning, but I think he may misunderstand how originalists use that term.  I don't think most originalists claim there is only one possible meaning of a text, in the sense that no one could ever perceive a different meaning in it.  Rather, the core proposition of originalism is that there was a single best meaning of the text (in at least some cases) at the time of enactment, and that that meaning should be "fixed" as the legal meaning despite later attempts at reinterpretation.  Of course it's inevitable that (a) those whose interests are disfavored by the original meaning will push for reinterpretation; and (b) the original meaning of  some text, as applied to some situations, will not yield a definite answer.  Neither proposition is inconsistent with originalism. 

UPDATE:  Professor Segall comments: 

I think that it is hard to believe there was a “fixed” or “best” meaning of the imprecise text that is often litigated for all the reasons Saul Cornell and other historians suggest. I also think the issue isn’t whether there was a “fixed meaning” or “best meaning” but whether there could be such a “fixed meaning” or “best meaning” when imprecise text has to be applied by judges to ever changing circumstances. The concession that many Originalists make that new applications of meanings are both inevitable and even desirable supports, in my opinion, that there is no “there there” when folks use the phrase “fixed meaning.”

My further comment: if that's correct, then in my view the case for constitutional judicial review is greatly weakened, as in effect judges are merely declaring new constitutional rules without the institutional legitimacy to do so.  The core argument in Marbury was that judges have to apply the Constitution when it irresolvably conflicts with a statute (or executive action).  But if the Constitution has no fixed meaning, then there is no irresolvable conflict between it and the challenged actions of the political branches. The judge's preferred meaning is merely one among many.  Why should it prevail over other meanings?  (I think Professor Segall would largely agree with this point, based on his prior writings, but I would not want to speak for him).

07/31/2019

Lino Graglia: Creative Constitutional Interpretation as Justification for Rule by the Supreme Court
Michael Ramsey

Recently published, in the Arizona State Law Journal, Lino A. Graglia (University of  Texas Law School): Creative Constitutional Interpretation as Justification for Rule by the Supreme Court (51 Ariz. St. L.J. 109 (2019)).  Here is the abstract:
 
Contemporary constitutional scholarship presents the puzzling phenomenon of scholars endlessly writing and debating methods of constitutional interpretation as the central issue to be decided despite the apparent fact that the Constitution plays very little role in the Supreme Court’s so-called constitutional decisions. Constitutional law is the product of judicial review, the extraordinary power, suspect in a democracy, of unelected judges to overturn social policy choices made by elected legislators and other officials of government ostensibly on the ground that they are prohibited by the Constitution. The reality is that our very old and very brief Constitution, even as amended, does not and cannot provide answers to contemporary controversial social problems. It precludes very few policy choices. The Supreme Court’s rulings of unconstitutionality are, therefore, necessarily almost always the result of the policy preferences of a majority of the Justices and their willingness to substitute them for the preferences of legislators.1 The central issue of constitutional law, therefore, is not how the Court should interpret the Constitution, but whether the Court should be the most important institution of American government with the power to remove from the ordinary political process any policy issue it chooses and assign it for final decision to itself. In essence, it is whether decision making by majority vote of a committee of nine unelected officials effectively holding office for life and deciding for the nation as a whole from Washington, D.C., is an improvement of the system of representative self-government in a federalism with separation of powers created by the Constitution. The function of unusual alleged methods of constitutional interpretation is to obscure that issue.
 
(Thanks to Mark Pulliam for the pointer).

07/30/2019

Saul Cornell on Originalism and History (Again)
Michael Ramsey

In the Law and History Review, Saul Cornell: Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning (Law and History Review, August 2019).  From the introduction (footnotes omitted): 

Recent originalist scholarship presents a case study in the problem of interdisciplinary inquiry in contemporary law. Borrowing insights from outside of the law without fully engaging with the relevant theoretical debates in other fields has resulted in a misapplication of key concepts. Rather than help originalists develop a more sophisticated approach to history and respond to earlier critiques of their methods, much recent originalist scholarship has used these insights as a means to avoid direct engagement with these earlier criticism. The result of such borrowing has been greater distortion of the historical meaning of the Constitution, not less.2 Nothing better illustrates the problems inherent in recent originalism than Second Amendment scholarship and jurisprudence. The Supreme Court’s ruling in District of Columbia v. Heller relied heavily on originalist scholarship, and leading originalists have praised the case as the best example of their method in practice. Yet, scholars from across a wide ideological and methodological spectrum have criticized Heller’s many historical errors and anachronistic interpretations of Anglo-American legal texts. Rather than praise the “gravitational pull of originalism,” as one prominent originalist and Heller defender has done, it might be more apt to characterize originalism as a scholarly black hole that has systematically warped legal and constitutional texts, in some instances almost beyond recognition.

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding Era texts that draws on the best interdisciplinary methods available. Despite paying lip service to ideas about reading the Constitution historically, originalism continues to invoke the authority of history without actually engaging in a genuinely historical practice. The assumptions at the root of most originalist inquiry are dubious at best, and in many instances demonstrably false. Originalists continue to treat eighteenth-century constitutional speech and communication as if it were little different that ordinary interpersonal communication, but virtually all of the texts consulted by originalists were generated as part of a rhetorical public debate that shares little with everyday speech situations. Other originalists claim to avoid the problems of this linguistic approach by adopting one focused on the legal, not the ordinary, meaning of the text. This approach also ignores the profound differences between American law in the eighteenth century and modern law.

Originalism has already gone through two major paradigm shifts during the last generation.6 Originalism 1.0 was focused on intent. By contrast, originalism 2.0 eschewed intent and instead focused on public meaning. Originalism appears to be morphing yet again: version 3.0 is still somewhat inchoate, but its champions have turned away from an emphasis on linguistic meaning, stressing instead legal meaning.  Either conceived in terms of the “language of law” or as “an inclusive originalism” the most recent variants of originalism continue to approach the contentious and discordant constitutional and legal culture of post-revolutionary America from the perspective of an outdated model of consensus history that few serious historians would recognize as accurate. All of these variants of originalism have failed to deal with the remarkable vitality and diversity of the intellectual and cultural world of the Founders. The result is a flat one dimensional account of Founding Era constitutional debates. As the Heller decision attests, the stakes in this debate are not merely academic.

Although a few left-leaning examples of originalism have emerged, the approach continues to be largely the province of the political right. Indeed, originalism has been effectively weaponized by those eager to advance an ideological agenda that not only includes advancing the cause of gun rights, but ultimately aims to undo much of the modern regulatory and administrative state. Instead of addressing the fundamental historical problems with their methodology, leading originalists have turned to a variety of theoretical fixes. Some originalists have borrowed from modern philosophy of language, analyzing constitutional communication as if it were essentially little different than ordinary face-to-face communication between social equals engaged in a rational exchange of ideas. Another prominent group of originalists favors the use of ideal imaginary readers constructed by modern legal scholars from Founding Era sources. Finally, supporters of originalism 3.0 claim that by treating the Constitution as a legal text or a text written in the “language of law” one can arrive at an objective fixed meaning: the long sought after originalist holy grail. None of these theoretical fixes solves the core problem with originalism: the absence of a rigorous historical methodology for dealing with the complexity of Founding Era constitutional thought and culture. Reading legal texts historically will require that originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues
is a separate task from the process of uncovering the legal meaning of Founding Era constitutional texts. Deciding what, if any, relevance such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.

The article continues with some particularly strong criticism for the work of Larry Solum, Randy Barnett and John McGinnis & Michael Rappaport.

(Via How Appealing).

07/29/2019

Ingrid Wuerth: The Due Process and Other Constitutional Rights of Foreign Nations
Michael Ramsey

Ingrid B. Wuerth (Vanderbilt University - Law School) has posted The Due Process and other Constitutional Rights of Foreign Nations (Fordham Law Review, forthcoming 2019) (57 pages) on SSRN.  Here is the abstract:

The rights of foreign states under the U.S. Constitution are becoming more important because the actions of foreign states and foreign state-owned enterprises are expanding in scope and the legislative protections to which they are entitled are contracting. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals, but to deny categorically such protections to foreign states.

A careful analysis of Article III and of the Fifth Amendment shows that the conventional wisdom and lower court cases are wrong. Foreign states are protected by Article III’s extension of judicial power to foreign-state diversity cases, the purpose of which was to protect foreign states from unfair proceedings and to prevent international conflict. The Article III “judicial power” over “cases” also presupposes both personal jurisdiction (over any kind of defendant) and other process-based limitations. The Fifth Amendment overlaps with Article III in important ways. It also protects foreign states. They are “persons” due the same constitutional “process” to which other defendants are entitled. Modern scholars have struggled to see the connection between due process and personal jurisdiction. The cases involving the immunity of foreign states makes the connection clear for all defendants. “Process” only reached defendants within sovereign power, or jurisdiction, of the issuing court. 

Examining the Constitution from the perspective of foreign states thus reveals the document in a new light, illuminating its core features in ways that advance our historical and theoretical understanding of the Constitution, with significant implications for several additional areas of modern doctrine. The analysis of separation of powers and due process also lays the groundwork for determining whether foreign states have additional constitutional rights.

(Via Lawfare, where the author gives a summary of the paper).

I read an earlier draft, and it's an outstanding and thought-provoking contribution.  Despite the apparently narrow focus suggested by the title, its implications call for a broad rethinking of the original understanding of judicial jurisdiction.  (And as a further aside, many of the constitutional aspects of civil procedure are ripe for substantial originalist rethinking -- this is a great start.)

07/28/2019

John McGinnis on Justice Thomas and Precedent
Michael Ramsey

At Law and Liberty, John McGinnis:  Why Justice Thomas Is Wrong about Precedent.  From the introduction:

This term Justice Clarence Thomas wrote an important concurring opinion on stare decisis in Gamble v. United States, the case on the scope of double jeopardy. There Thomas rejects stare decisis for both constitutional and statutory cases except in cases where the precedent is not “demonstrably erroneous.” Thomas recognizes that judges in England at the time of the Constitution applied a more robust doctrine of stare decisis, but rejects the notion that federal judges have the authority to follow a similar doctrine today in statutory and constitutional cases. For Thomas, the difference is that English common law was judge-made, but “we operate in system of written law in which courts need not—and generally cannot—articulate the law in the first instance.”

The problem with Thomas’ historical argument is that judges in England also interpreted written law in the form of statutes. And parliamentary supremacy debarred them from “articulating the law in the first instance” in that context as well. Nevertheless, English courts regularly applied stare decisis to matters of interpreting the written law of statutes. Thus, it is not true that the change to written law put the traditional use of stare decisis outside the scope of judicial power that judges possess according to Article III. ...

07/27/2019

Richard Primus on Locke and Justice Gorsuch
Michael Ramsey

At Balkinization, Richard Primus: John Locke, Justice Gorsuch, and Gundy v. United States.  From the core of the argument:

In Part II [of his dissent in Gundy v. United States], Gorsuch builds his theory about nondelegation from the fundamentals of constitutional argument, going back to the text and the Founding.  In the third paragraph of his account, by way of explaining how the Framers thought about the separation of powers, Gorsuch quotes a passage a bit more than a hundred words long from John Locke’s Second Treatise of Government.  Locke was not a Framer of the Constitution: he lived in the wrong century and also in the wrong hemisphere.  But Gorsuch nonetheless confidently presents the passage from Locke as a statement of the “particular arrangement” on which the “framers insist[ed].”  Locke, says Gorsuch, was “one of the thinkers who most influenced the framers’ understanding of the separation of powers[.]” 

                Was he really?  Gorsuch’s dissent, which has a hundred and seven footnotes, cites no authority for the proposition that Locke shaped the dominant Founding conception of the separation of powers.  Other than his say-so, Gorsuch gives the reader no reason to think that the Framers meant to erect just the system of separated powers that Locke articulated in this quoted passage, written a hundred years before and three thousand miles away.  And there is serious reason to doubt that the Framers had any particular commitment to following Locke on the point.  Locke was, to be sure, an influential thinker in the English-speaking world during the eighteenth century: there’s a famous phrase in the Declaration of Independence that sure seems like a riff on his work.  But the fact that Jefferson riffed on Locke in the Declaration does not mean that Locke was pervasively influential in the formation of the Constitution. 

                For several decades now, leading scholars have cast considerable doubt on the idea that Locke’s political writing was particularly influential for the Founders.  (John Dunn and Mark Goldie are good examples, and what follows in this paragraph largely tracks their work.)  ...

07/26/2019

Josh Blackman: Originalism and Stare Decisis in the Lower Courts
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted Originalism and Stare Decisis in the Lower Courts (14 pages) on SSRN.  Here is the abstract:

The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court’s unique status, which is perched atop our judiciary, affords its members leeway to make either decision. 

Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare. 

An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process. 

In short, it’s tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist. 

07/25/2019

John Harrison: Executive Power
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted Executive Power (53 pages) on SSRN.  Here is the abstract:

This article presents a new conceptualization of the executive power conferred by Article II of the Constitution. That conceptualization is a more detailed version of the Whig understanding of executive power, which was common among Americans when the Constitution was adopted. The executive power is the capacity to use the resources of the government to perform the functions of the government, subject to the affirmative requirements and limitations imposed by law. Executive officials operate in a legal environment of rules that empower and constrain them, but those rules do not come from the executive power itself. They come from elsewhere in the Constitution and laws. Possession of executive power by itself confers no policy discretion, no authority to use the government’s resources, and no privileges to invade private interests. Military functions are executive, and members of the military are likewise subject to rules that empower and constrain them, including especially the law of war. The President’s status as Commander in Chief makes him the highest commander while leaving him, like all commanders, subject to the law. The article identifies possible constitutional sources of executive policy discretion other than the executive power itself, and explains that presidential control of the executive branch is consistent with the limited conception of executive power it espouses. In addition to being familiar at the time of the framing, the Whig understanding of executive power figured prominently in the Federal Convention's drafting and has been a mainstay of debates about the executive throughout the Constitution’s history.

Professor Harrison is blogging about the article at Volokh Conspiracy -- here is the first post.

07/24/2019

Further Responses to Jesse Merriam on Originalism and Legal Conservatism
Michael Ramsey

At Law and Liberty, two further responses to Jesse Merriam's essay Is Legal Conservatism as Accomplished as It Thinks It Is?:

Michael O'Shea (Oklahoma City): Normative Foundations of Originalism.  Here is the introduction:

Law & Liberty has become a major source of analysis of the future of legal conservatism and its signature doctrines. Back in April, Michael Greve’s “Originalism as Ideology”[1] diagnosed contemporary originalism as an “ideology” in the specific Hegelian sense: a timely idea that gets treated as timeless, with the result that its contingency and motivations are overlooked or denied. Greve argued that originalist practice “would benefit from candor and reflection,” and especially from more effort to “connect semantic theories to a substantive theory of the Constitution and of constitutional politics.”

Now comes Jesse Merriam’s thought-provoking Liberty Forum essay for July, which  draws the very kinds of substantive connections Greve called for. Merriam places the recent trajectory of originalist theory in the larger context of a critique of the fecklessness of the American conservative movement. He concludes that the apparent triumphs of the Federalist Society and originalist theory have not, in general, produced victories for conservatism—particularly not for the traditionalist branch of conservatism that focuses on “faith, family, and community.” Rather, originalism and its associated institutions like the Federalist Society have increasingly fostered a flexible, abstraction-heavy interpretive approach of “original public semantic meaning” that (especially in the academy) has been used to assimilate and validate past progressive cultural victories, while empowering present and future courts to reach ideologically libertarian results congenial to many elite lawyers and law professors.

I share the view held by Greve and Merriam (also by alert progressives like Eric Segall) that originalist theory has been evolving in ways that are more prone to obscure the exercise of judicial discretion than to constrain it. And I agree with Merriam that this development has not been particularly positive, either for legal conservatism or for the broader conservative project in America. The prior contributions to this Forum have engaged at a relatively broad level the issues raised by the possible tension between originalism and conservatism. Here, I’d like to supply some detail. My hope is to flesh out the discussion by examining a particular way that a subset of originalist theory (one with close ties to the institutions of legal conservatism) is becoming, not merely detached from conservative goals, but inimical to them.

And Jeffrey Pojonowski (Notre Dame): Conservatives and Originalism: Their Relationship, Reconsidered.  Here is the introduction:

Jesse Merriam argues that the unifying thread in the modern legal conservative movement is a commitment to originalism, especially in constitutional interpretation. If, as Merriam also argues, the jurisprudential analogue to fusionism is under pressure, originalism’s conservative bona fides will be a central point of contention. 

Merriam cautions against equating the rise of originalism with a triumph of conservatism: Originalism’s indeterminacy leaves room for liberal outputs—and professors, including those labeled “conservative,” will make those cases. This claim fits with the broader story he tells, in which the legal conservative movement garners victories for economic and social libertarianism but leaves social conservatives’ dreams deferred and regards economic populism as heresy. His Liberty Forum essay argues, provocatively, that the conservative legal movement is in result, if not in aim, a classically liberal project.

This response asks whether, and how, originalist interpretation can be conservative. This might appear to be the wrong question. Originalism is an interpretive method, not a worldview or governing philosophy. Many originalists emphasize that the method lacks any political valence. It is, in fact, this disconnect between originalist interpretation and conservative politics that makes Merriam’s unease about originalism and the legal conservative movement possible.

Yet originalism had its revival in that movement, and the method remains its fighting interpretive faith. To be sure, there are originalists who are not conservative or who regard the political outputs of originalism as irrelevant to the project. There are also a few “black swan” academic conservatives working in legal interpretation who have little time for originalism. But it is worth pondering why a method that is putatively separable from a political theory has a center of gravity resting firmly in the conservative legal movement. Hardened realists will say this naïve question answers itself, but I am more willing to take defenders of originalism at their word and consider whether there is in fact a connection between originalism and conservatism that runs deeper than crude results-orientation. 

I will argue that there is a strong conservative case for originalism as an abstract, formal matter. Nevertheless, the conservative case for originalism as applied to our particular constitutional order at this particular time is less certain and more complex. This essay is not a conservative case against originalism. Rather I will be thinking out loud about unresolved questions that have been nagging at me. I believe that for those who, like me, are sympathetic to originalism and the conservative disposition, these are worries worth confronting.