The Originalism Blog

Andrew Koppelman: Justice Alito, Originalism, and the AztecsMichael Ramsey

Andrew Koppelman (Northwestern University School of Law) has posted Justice Alito, Originalism, and the Aztecs (15 pages) on SSRN.  Here is the abstract:

Justice Samuel Alito is anachronistically mistaken when he claims, in his Fulton v. Philadelphia concurrence, that the original meaning of the Free Exercise Clause of the First Amendment is a judicially enforceable right to exemption from generally applicable laws. The doctrines and practices of strict scrutiny, narrow tailoring, and compelling interests came into existence in the 1960s. Alito’s evidence for his originalist claims misreads his evidence and has extravagant implications. If judicially crafted exemptions are to be defended, this case must be made on nonoriginalist grounds.

More on the Independent State Legislatures ViewMike Rappaport

Recently, there has been a great deal written about the independent state legislature view – the view that the Constitution assigns to state legislatures (unconstrained by state constitutions) certain powers with respect to federal elections.  I wrote about this a while back, and so I thought I would briefly discuss my prior post.  My post should be thought of as a preliminary discussion, one that I am open to revising if I find some of the recent scholarship persuasive.

The post begins:

The Constitution’s frequent use of “state legislatures” requires two main questions to be answered.  One question involves whether an entity other than the state legislature can take an action when the Constitution assigns that action to the state legislature.  For example, the Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” the members of the electoral college.  Does that provision allow the state Constitution to override the state legislature’s decision as to the manner of appointing the electors?  And if it does, can the courts enforce that constitutional provision to the detriment of the state legislature? 

A similar issue that arises here occurs when the state, either through its constitution or some other means, assigns a decision of the state legislature to another entity.  For example, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  Does this provision allow the state constitution or the voters through a referendum to assign redistricting decisions to an independent commission rather than the state legislature?

My short answer to these questions is that the United States Constitution prevents the state constitution or the voters from assigning any of these decisions to anyone other than the state legislature.

The second question raised by the state legislature provisions involves which entity makes a decision when the state legislature is assigned that task.  Is the decision to be made by the state legislature proper – that is, both legislative houses but with no opportunity for the governor to veto it?  Or is it to be made by the state legislature with opportunity for a gubernatorial veto?  Sometimes the practice is for one (for example, state legislative ratification of constitutional amendments), at other times the practice is for the other (state legislative determination of the times, places and manner of holding congressional elections).  Is the practice correct, and if so, why?  Here, I argue that the Constitution draws a distinction between tasks for the state legislature that involve enacting laws and tasks that do not.

The remainder of the post attempts to justify these conclusions on textual grounds.  At certain points the issue can become tricky but I believe the answers I sketch are reasonable ones.    

Ilan Wurman: Beyond Formalism and Functionalism in Separation of Powers LawMichael Ramsey

Ilan Wurman (Arizona State University - Sandra Day O'Connor College of Law) has posted Beyond Formalism and Functionalism in Separation of Powers Law (Minnesota Law Review, forthcoming) (72 pages) on SSRN.  Here is the abstract:

The debate between formalists and functionalists over the constitutionality of the administrative state has stalled. On the one hand, formalists argue that modern administrative government violates the separation of powers by unlawfully combining legislative, executive, and judicial power. On the other, functionalists contend that governmental power in contested cases is too hard to classify as legislative, executive, or judicial, such that enforcing the separation of powers is impossible. It would be better to move beyond these conceptions of formalism and functionalism and orient our thinking around exclusive and nonexclusive powers.

The Constitution’s text and structure, and even more so historical practice under it, suggest that some powers strictly and exclusively appertain to a particular branch. Much governmental power, however, is nonexclusive: its exercise has some combination of legislative, executive, and judicial characteristics and, as a result, can be exercised by more than one branch. If functionalism is concerned with identifying the “core” functions of the three branches, the reorientation proposed here would require identifying “exclusive” functions. The central question, however, is not “balance” or “aggrandizement” but whether a function is or is not within a category of exclusive power as a matter of text, structure, and history. But this approach rejects the proposition associated with formalism that power must always be categorized as exclusively legislative, executive, or judicial.

Whatever else it may be, this approach is originalist. That is not to say the Founders specifically understood power in this way; there is little evidence they did so. And few judicial opinions have articulated anything like it. But it is to say that the distinction between exclusive and nonexclusive powers accurately reflects governmental power and is consistent with the Constitution’s text, structure, and history. Reorienting toward exclusive and nonexclusive powers further helps clarify many persistent doctrinal puzzles—from the nature of legislative rules and judicial deference to “quasi” powers and nondelegation. Other insights also emerge, for example with respect to James Madison’s suggestion that the Comptroller of the Treasury was neither executive nor judicial but “rather distinct from both, though it partakes of each,” and to the recently contested question of whether the Supreme Court can hear direct appeals from military courts.

Eli Nachmany on Delegation and the Northwest OrdinanceMichael Ramsey

Recently published, in the Illinois Law Review Online, Eli Nachmany (Harvard J.D. '22), The Irrelevance of the Northwest Ordinance Example to the Debate About Originalism and the Nondelegation Doctrine (2022 U. Ill. L. Rev. Online 17 (2022)).  From the introduction (footnotes omitted): 

The idea of the nondelegation doctrine’s return has sparked much scholarly interest, igniting a debate about whether Justice Gorsuch is correct that the original meaning of the Vesting Clause of Article I of the Constitution embodied the nondelegation principle. Professors Julian Mortenson and Nicholas Bagley published a thoughtful, provocative article in the Columbia Law Review arguing that the Constitution was not originally understood to contain a nondelegation doctrine. Professor Ilan Wurman penned a powerful response in the Yale Law Journal, taking the opposite view.

This essay argues that one of the core examples of “delegation at the founding” that Professors Mortenson and Bagley enthusiastically cite is inapposite to the nondelegation debate. In the professors’ article, the two recount how “early Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct.” One such instance was the Northwest Ordinance...

This essay argues that Congress’s passage of the Northwest Ordinance, as well as its passage of other early territorial legislation, is irrelevant to the question whether a correct, originalist interpretation of the Constitution compels application of the nondelegation doctrine. Congress passed the Northwest Ordinance, as well as other territory-related legislation, pursuant to its power under the Property Clause of the Constitution, not any one of its Article I legislative powers. The Property Clause is a differently worded, separately housed provision of the Constitution; an early Congress’s delegation of legislative power respecting the territories might bear on the original meaning of the Property Clause, but it cannot shed light on Article I’s restriction on delegation of legislative power.

Seems right to me.  At Legal Theory Blog, Larry Solum says: "Well argued and recommended."

Related: By the same author, at the Yale Journal on Regulation's Notice and Comment Blog, “Delegation at the Founding” and the Shifting Debate About Nondelegation and Originalism, including these thoughts;

Professors Mortenson and Bagley deserve respect for making their case in originalist terms. Perhaps they are wrong about the original meaning of the Constitution. But the very fact that they are doing originalist scholarship is a praiseworthy service to the law. In so doing, they have set the terms of the debate about nondelegation and originalism. And in rebutting the two, scholars (like Professor Wurman) can clarify—as a by-the-way—just how originalism is properly to be done. This process is how originalist inquiry is supposed to occur. It is difficult to overstate the impact of Professors Mortenson and Bagley on the way that scholars are beginning to think about the originalist argument for reviving the nondelegation doctrine, which has not been used to strike down a federal statute since 1935.

Professor Mortenson should get special credit—he has been willing to advance his views at Federalist Society events, including at a Harvard Federalist Society debate with Professor Wurman that I was honored to moderate. And as Professor Wurman admitted in the debate, Professors Mortenson and Bagley have at least changed the way some originalists view the contours of the nondelegation doctrine, even if they do not fully accept the Delegation at the Founding argument. Professor Mortenson has been a great sport, and his willingness to defend his views on opposing turf is laudable.

I agree with all this too.

Gerard Magliocca on the Original Meaning of the Amnesty Act [Updated with Comments]Michael Ramsey

At Prawfsblawg, Gerard Magliocca: The Correct Reading of the 1872 Amnesty Act (responding to the district court holding in the Cawthorn eligibility litigation that the Act provides prospective amnesty from Section 3 of the Fourteenth Amendment).  From the beginning:

Here is a concise explanation of why the 1872 Amnesty Act cannot be read to give prospective relief from Section Three of the Fourteenth Amendment. 

1. The Fourteenth Amendment did not give Congress that power. Nothing in the original public meaning or anything afterwards supports a prospective view of Congress's power to waive disqualification. Moreover, such a power would smack of the "dispensing" authority that was rejected in Angl0-American law after the Glorious Revolution of 1688 and be inconsistent with the interpretation of the pardon power.
2. To conclude otherwise would mean that Congress repealed Section Three of the Fourteenth Amendment in 1872. How can Congress repeal a constitutional provision by itself? This would be an unprecedented loophole in the Article Five process that should be viewed with considerable skepticism. ...

Plus four more reasons.

Here's the whole of the Amnesty Act:

That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.

COMMENT FROM ANDREW HYMAN: I tend to agree with Professor Magliocca that Congress cannot prospectively waive section three of the Fourteenth Amendment, but I don’t agree with all of his reasons.  Here’s what section three says (emphasis added):

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.  But Congress may by a vote of two-thirds of each House, remove such disability.

Unlike Professor Magliocca, I don’t think the pardon power is very relevant here. It’s likely that no presidential involvement is required for Congress to remove the section three disability, thus section three departs from Pardon Clause requirements, so there’s no reason to assume that a section three removal must be retrospective merely because pardons must be retrospective.
Section three speaks of congressional power to “remove” a disability, not prevent a disability or exempt anyone from a disability.  So, I agree with Professor Magliocca’s ultimate conclusion. Perhaps it’s possible to “remove” a disability from a person who hasn’t been born yet, but that’s not the most natural interpretation if the disability can only attach after someone is born because of some event in that person’s life.

Article II, Section 1 of the Constitution discussed a disabled president and what happens when “the Disability be removed.” The framers of the Fourteenth Amendment apparently borrowed that language, which obviously refers to a disability that attaches after someone is born, and a subsequent removal of the disability.

MICHAEL RAMSEY ADDS:  Agreed, and I also don't think the dispensing power, relied upon by Professor Magliocca, is very relevant.  The Crown's claim to a dispensing power, and the Constitution's rejection of that power in the take care clause, is relevant to issues of executive power but not so much to issues of congressional power.  Parliament could of course change any aspect of English law (including "constitutional" aspects of English law) by statute.  Congress was not understood to have this power under the original Constitution (as Marshall said in Marbury, that was a large part of the point of a written Constitution), but I don't see why Congress couldn't be given that power as to a particular subsequent part of the Constitution, if that's what the drafters provided.  I agree with Andrew, though, that that isn't the best reading of what the drafters of Section 3 provided.

I also agree with Professor Magliocca that the original meaning of the Amnesty Act didn't grant prospective relief from Section 3 of the Fourteenth Amendment.  The Act's reference to "Senators and Representatives of the thirty-sixth and thirty-seventh Congresses" (that is, the Congresses immediately before and during the civil war) shows that the Act was directed at a particular episode of insurrection, rather than being a general override of Section 3.

Kevin Tobia et al.: Ordinary Meaning and Ordinary PeopleMichael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law) & Victoria Nourse (Georgetown University Law Center) have posted Ordinary Meaning and Ordinary People (114 pages) on SSRN.  Here is the abstract:

Perhaps the most fundamental principle of legal interpretation is the presumption that terms should be given their “ordinary” (i.e., general, non-technical) meanings. This principle is a central tenet of modern textualism. Textualists believe a universal presumption of ordinary meaning follows from their theory’s core commitment: A law should be interpreted consistently with what its text communicates to the ordinary public. This Article begins from this textualist premise, empirically examining what legal texts communicate to the public. Five original empirical studies (N = 4,365) reveal a surprising finding: Ordinary people consider genre carefully and regularly take terms in law to communicate technical legal meanings, not ordinary ones.

This discovery carries implications for legal interpretation’s theory and practice. Modern textualists—especially at the Supreme Court—justify their theory through “democratic,” fair notice, and rule-of-law appeals to ordinary people. But the empirical studies reveal that fidelity to ordinary people does not imply an unwavering commitment to ordinary meaning. Instead, it requires interpreters to also look to technical meanings. On a practical level, the results support a new presumption of legal meaning and ground a new challenge to textualism’s claim to promote fair notice. As a case study, we consider Bostock v. Clayton County, Georgia, which held that both sexual orientation and gender identity discrimination are prohibited forms of sex discrimination. The Article’s empirics and theory offer a new justification of the Court’s landmark decision.

I don't agree that "the most fundamental principle of legal interpretation" is that terms should generally be given "general, non-technical" meanings, and I don't think that is the position of most textualists either.  Rather, textualists recognize that (a) legal terms often are used to impart technical legal meaning (that's why we need lawyers!), and (b) ordinary people commonly understand that.  (For example, this paper by John McGinnis and Michael Rappaport: The Constitution and the Language of the Law).  So I think the conclusion is correct but not as surprising as the paper makes it sound.

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

Michael Dorf on Extending PrecedentsMichael Ramsey

At Dorf on Law, Michael Dorf: The Distinction Between Failure to Extend a Precedent and Cutting Back on it -- A Comment on Egbert v. Boule (commenting on last week's Supreme Court oral argument).  From the core of the discussion:

But what's an extension versus an application? Under the current precedents, courts are supposed to first determine whether the plaintiff's claims arise in a "new context" or involve a "new category of defendants." ...

Justice Breyer asked Egbert's lawyer a series of questions about trivial differences that obviously should not amount to a new context: If the officers' conduct in Bivens occurred on a Wednesday, surely identical conduct on a Thursday would fall within Bivens rather than involving an extension. What about if instead of looking for drugs, the officers are looking for weapons? For undocumented immigrants?

To her credit, Egbert's lawyer conceded that the day of the week or month of the year couldn't possibly make a difference. But she began to push back when the law enforcement purpose shifted. I understand why she did so to try to win the case, but the move is at least somewhat perplexing. Whether we have a new context is not simply a descriptive question. It's also--indeed primarily--a normative one. The reason we think a Thursday search is not different from a Wednesday search is that nothing relevant turns on the day of the week. Does it matter whether the officers are searching for weapons rather than drugs? That's not an obviously irrelevant detail in the way that the day or month is, but neither is it obviously relevant. The answer could depend on any number of factors, including how dangerous the search is, how important the government interest is, whether Congress has indicated priorities, etc.

Figuring out whether some asserted distinction between the context of Case A and the context of Case B makes a difference or is instead what we lawyers call a distinction without a difference is extremely familiar. It's at the heart of the common law method and thus should be a natural fit for deciding the availability of a Bivens action, which is a question of federal common law. Indeed, even if this were not a federal common law question but instead a question of statutory or constitutional construction, the process of sorting between relevant and irrelevant distinctions would be familiar, because courts in the U.S. (and other legal systems descended from England) use the common law method in all manner of cases.

I mostly agree (see my discussion on establishing and extending custom here).  But I suspect Professor Dorf and I draw different conclusions.  My view is that the decision whether it's an extension or not (that is, whether the distinction matters) is a normative judgment unless essentially everyone would agree it's not.  As a result, precedent (and more broadly custom) can't provide an objective approach to adjudication except in relatively easy cases.  (Professor Dorf's reference to the common law suggests he might agree, but other things he's written make me think maybe he doesn't).  And, importantly for originalism, this view indicates that a precedent/custom-based system isn't a middle way between originalism and living constitutionalism.  It's really just living constitutionalism (if precedents and practices are read broadly) or else originalism limited by specific prior decisions and practices (if they aren't read broadly).

The Constitutionality of the Iran Nuclear Deal (Again)Michael Ramsey

With the impending revival of the nuclear agreement with Iran, I thought it might be useful to repost my (short!) article on nonbinding agreements, which among other things examines the constitutionality of the  original 2015 deal.  Core conclusion: if the agreement is truly nonbinding (and all parties clearly understanding it to be nonbinding), then there's no constitutional problem with it.  But then it is, of course, not binding, either on the US or Iran.

The article is Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements, 11 Florida Int'l U. L. Rev. 371 (2016).  Here is the abstract:

The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur. This high threshold for consent reflects the framers’ concern that treaties not be too easy to make. No one said the President alone could make treaties; many emphasized the contrary. James Wilson, for example, declared that “[n]either the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people”; Hamilton made similar observations in The Federalist.

In modern times, however, Presidents on their own authority have made international agreements that look much like treaties. 2015 provides two examples. First, the President negotiated an agreement with Iran, China, France, Germany, Russia, Britain, and the European Union regarding Iran’s nuclear development. Known as the Joint Comprehensive Plan of Action (JCPOA) and announced in July 2015, its principal goal was to limit Iran to non-military nuclear development in return for lifting U.S. and international economic sanctions on Iran. Second, the President joined with leaders of over 150 nations to produce the Paris Agreement on climate change, with a final version announced in December 2015. The Agreement attempted to promote and coordinate controls on carbon emissions in response to concerns over human-caused global warming. Both agreements appear to involve substantial commitments by the United States, but neither will depend on approval by the Senate (or Congress).

The President contends that these agreements are nonbinding under international law and so can be made on the President’s sole constitutional authority. This essay assesses that claim. It generally agrees with the President’s basic proposition but raises concerns about the application of that proposition to the Iran and Paris Agreements. It concludes that without adequate safeguards this approach can provide the President with substantial ability to evade the constitutional checks on the treaty-making power.

Originalism and the North Carolina/Pennsylvania Redistricting DecisionsMichael Ramsey

The Supreme Court on Monday declined to block the state-court-ordered redistricting plans in North Carolina and Pennsylvania, with three Justices (Alito, Thomas, Gorsuch) dissenting.  SCOTUSblog has an excellent summary, including these observations:

In a brief order on Monday afternoon, the court declined, without explanation, to intervene in the North Carolina case. Alito dissented from that ruling in a four-page opinion that was joined by Thomas and Gorsuch. Alito described the independent-state-legislature theory as “an exceptionally important and recurring question of constitutional law,” and he suggested that the justices “will have to resolve this question sooner or later, and the sooner we do so, the better.” Alito expressed sympathy for the Republican legislators’ position, writing that if the Constitution’s language “is to be taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”

Justice Brett Kavanaugh agreed with Alito both that the question is an important one and that it is likely to recur “until the Court definitively resolves it.” But in a separate opinion, Kavanaugh agreed with the court’s decision not to intervene now [based on the timing].

Rick Hasen has this post at Election Law Blog: Today’s Supreme Court Order Upholding the North Carolina Supreme Court’s Ungerrymandering of the State’s Congressional Districts, Could Well Be Temporary and Points to Big, Bad Election Law Precedent Potentially Coming Down the Line (commenting that "the Court is almost certain to take this case, when it comes up in the regular course (and not on the emergency shadow docket) for decision some time next year. It only takes 4 Justices to agree to hear such a case, and 4 said they want to hear it.").

Professor Hasen also relies heavily on this post by Mark Joseph Stern at Slate, who argues:

It [the independent state legislature rule]  contradicts the original meaning of the elections clause as well as historical practice reaching back to the early days of the republic. A mountain of evidence proves that Framers never intended to give states lone authority over federal elections, and instead expected state constitutions to impose substantive limits on election law. Exhaustive research demonstrates that—aside from a few opportunistic arguments raised by congressional partisans in the 19th century—state legislatures, state courts, federal courts, and Congress have all rejected the doctrine for more than two centuries.

He (Hasen) adds:

If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts' dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito's position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There's a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.

Note that center-left commentators have (once again) found a constitutional issue where they think (a) the original meaning of the text is dispositive of a current closely contested issue and (b) the original meaning should be binding on the current Court.  (See also articles linked here.)

Josh Blackman at Volokh Conspiracy comments here: Goodbye Roberts Brief. Hello Barrett Brief. (noting that Justice Barrett may well be the critical vote, quoting the above paragraph from Professor Hasen and adding: 

You get that? ACB can only agree with Justice Alito, and rule in favor of the [independent state legislature rule], if she ignores the Constitution's original meaning. Under the Constitution's original meaning, the maps drawn by the NC Supreme Court should stand. And advocates can put Barrett's face on the cover.

Hasen and Stern may be right about the original meaning, though the titles of their posts show that they are very heavily invested in the outcome and so might not be the best to neutrally assess the original meaning.  I don't doubt that the original meaning allows some state law procedural limits on how state legislatures manage federal elections, but that's very different from saying how the original meaning affects redistricting and especially the North Carolina/Pennsylvania cases.

We need a careful methodologically precise originalist paper on these cases that doesn't assume a particular outcome, speak in broad generalities or engage with an unrealistically extreme version of the independent state legislature rule.  It's pretty much guaranteed to be cited by the Court.

Gary Lawson: Equivocal OriginalismMichael Ramsey

Gary Lawson (Boston University School of Law) has posted Equivocal Originalism (Texas Review of Law and Politics, vol. 27 (2022 forthcoming) (33 pages) on SSRN.  Here is the abstract:

“Originalism” is a term shrouded in ambiguity and ripe for equivocation. A recent article by Stephen Sachs in the Harvard Law Review tries to clarify discussion by distinguishing between originalism as a decision standard – set of criteria for ascertaining the truth conditions for propositions – and a decision procedure – a mechanism for ascertaining whether those truth conditions are satisfied in any given context. That is a helpful distinction, but it still leaves much room for multiple and confusing uses of the term “originalism.” Jumping off from comments on Professor Sachs’ article by Mitch Berman and Judge Andrew Oldham, I suggest that a more basic distinction between originalism as a positive theory of interpretation – the ascertainment of communicative meaning – and originalism as a normative theory of action – a prescription for decision-making – is crucial to clear and productive discussion of originalism. Once one keeps focus on those two distinct enterprises, one sees the contours of distinct research agendas that may be difficult to fit together. Originalism-as-interpretation and originalism-as-adjudication ask very different questions and may well call for application of different skill sets, decision procedures, evidence sets, and standards of proof. The problems in linking those enterprises (and never mind the problems of executing either enterprise) may explain why originalist scholarship has not been as useful to originalist judges as jurists like Judge Oldham would like.

More on Elections and Independent State LegislaturesMichael Ramsey

Here are two more papers attacking (the strong version of) the independent state legislature theory.  Per my previous post, though, it seems that they do not engage the situation of the cases currently pending at the Court.

Michael Weingartner (independent) has posted Liquidating the Independent State Legislature Theory  (66 pages) on SSRN.  Here is the abstract:

Following the 2020 Presidential election, an obscure and potentially revolutionary constitutional theory re-emerged. The so-called “independent state legislature” theory posits that the Constitution vests state legislatures with plenary power to craft rules for Congressional elections and to direct the appointment of presidential electors, unbound by state constitutions and free from review by state courts. Though the Supreme Court rejected this theory in the past, in 2020 four Justices signaled their seeming approval.

The debate over the independent state legislature theory pits textual arguments against the longstanding practice of states throughout our history. Every state constitution dictates the procedure by which state legislatures may enact election laws, and state constitutions are full of provisions which regulate nearly every aspect of federal elections from voter registration to congressional redistricting to absentee voting. Nearly all these provisions were enacted with the affirmative participation of state legislatures, and since the Founding they have, though state court review, constrained the authority of state legislatures when enacting election laws.

This Article operationalizes this history by applying James Madison’s analytical framework of “constitutional liquidation,” recently endorsed by the Supreme Court in Chiafalo v. Washington to resolve whether states could control the votes of presidential electors. This framework posits that the meaning of indeterminate constitutional text may be liquidated—that is, settled—by longstanding and broadly accepted historical practice. Applying that framework here reveals that, while the constitution’s text may be unclear as to the role of state constitutions in regulating federal elections, subsequent practice and the acquiescence of state legislatures, Congress, and the public has settled the Constitution’s meaning and rejected the independent state legislature theory.

Carolyn Shapiro (IIT Chicago-Kent College of Law) has posted The Independent State Legislature Claim, Textualism, and State Law (50 pages) on SSRN.  Here is the abstract:

During the litigation surrounding the 2020 election, the independent state legislature claim (“ISLC”) , emerged as a potentially crucial factor in the presidential election. The ISLC rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Maximalist versions of the ISLC assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections, that state courts’ statutory interpretation of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts, and that delegations of decision-making authority to non-legislative bodies may be limited, albeit in unspecified ways.

This Article charts the emergence of this unprecedented reading of the Electors and Elections Clauses and examines both its justifications and practical implications. Its central claim is that the maximalist ISLC is an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law. Those promoting this maximalist interpretation skip the crucial step of statutory interpretation—asking what the state legislature actually did. As a result, the maximalist ISLC undermines its own claims to promote political accountability and predictability by failing to engage in the question of whether a legislature has in fact rejected the state constitution and other aspects of state law. The Article concludes with suggestions for the Supreme Court, Congress, state actors, and litigants, to protect the continued independence of state election law.

Helen White & Cameron Kistler on Originalism and Meaning of State LegislaturesMichael Ramsey

At Election Law Blog, Helen White & Cameron Kistler: “Will the Supreme Court’s Originalists Be Open to New Originalist Evidence and Reject the Independent State Legislature Theory?”  From the introduction:

After months of percolating, at least one redistricting case invoking the so-called “independent state legislature” theory has finally reached the Supreme Court’s “shadow docket.”  In the briefest terms, proponents of that theory assert that, because the Elections Clause of Article I empowers state “Legislatures” to “prescribe[]” the “Times, Places and Manner of holding Elections for Senators and Representatives,” the state legislature (and only the state legislature) therefore possesses near-absolute power to regulate elections, unconstrained by the state constitution, the state courts, or the state Executive.  Republicans in North Carolina are now invoking this theory in asking the Supreme Court to issue an emergency stay to prevent the use of congressional maps drawn by that state’s supreme court.  Yesterday, the Court received a flurry of responsive briefs, teeing up the possibility of a decision on the theory in a matter of days.

And on the key originalist point: 

One argument raised by both the Common Cause and League of Conservation Voters respondents relies on new historical research showing that the original public meaning of the term “legislature” necessarily included both the substantive and procedural constraints contained in state constitutions.  In their hot-off-the-press piece, Vikram and Akhil Amar explain that state constitutionalism was the “heart and soul, legally, of the American revolution.”  Through state constitutions, the people of each state delegated their sovereign power to state legislatures.  Thus, state constitutions were understood at the Founding to “define the scope of state legislatures’ legitimate authority” as delegated by the people.  At the most basic level, what a “legislature” is (how many members, selected how, with what processes and powers) can be defined only in relation to the constitution that creates it.  Thus, at the Founding, just as now, the meaning of the term state “legislature” is found not in a general dictionary definition, but in the powers, processes, and constraints included in each state’s constitution.

The League of Conservation Voters (and the Amars themselves) also relied on Hayward Smith’s new, exhaustive account of the Founding-era understanding of “legislatures.”  Smith recounts that two drafters of the “legislature” language in the analogous provision in the Electors Clause in Article II subsequently were heavily involved in adopting state constitutions that constrained state legislatures when exercising their power under the Elections Clause.  These drafters’ views are illustrative of a broader understanding among lawmakers and the public in the Founding Era; Smith found that six of the seven states that held a constitutional convention in the decade after ratification added constitutional provisions regulating federal elections.  (And yet another piece of recent originalist scholarship from Eliza Sweren-Becker and Michael Waldman offers one potential explanation why: the founding generation, in fact, were concerned that self-interested partisans would “twist[] election rules to benefit their faction.”  So given that fear, it’s both (1) unsurprising that multiple states in the early republic used their state constitutions to place certain election law topics beyond their state legislatures and (2) implausible to imagine that the founding generation that had those fears and enacted those limitations somehow meant to liberate state legislatures from their founding documents in the federal Constitution.)

The relevant clause is Article I, Section 4, clause 1:

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

I haven't looked at this issue closely.  On a quick reflection, it seems likely to me that this language was understood to give power to the legislatures of the states, acting pursuant to their (state) constitutional procedures.  So there's nothing remarkable about the proposition that early post-ratification state constitutions contained provisions regulating federal elections.  But it seems an entirely different matter to have, as the post itself describes it, "congressional maps drawn by [the] state’s supreme court."  The state supreme court is not the legislature.  That's a fundamental proposition of eighteenth century separation of powers.  The state supreme court can say, I would think, that a map drawn by the legislature is unconstitutional because it doesn't follow the requirements of the state constitution.  But the state court cannot itself draw the map (or order a particular map, other than one drawn by the legislature) to be used.  I bet there is no founding era precedent for a state supreme court prescribing the "Times, Places and Manner of holding Elections."

Eric Segall on Adrian Vermuele's "Common Good Constitutionalism"Michael Ramsey

At Dorf on Law, Eric Segall: Ten Observations About Adrian Vermeule's Book "Common Good Constitutionalism" 

Professor Adrian Vermeule of Harvard Law School is somewhat of a polarizing figure whose opposition to gay rights and same-sex marriage are, to this writer, unpersuasive and troubling. But those subjects make up only a tiny portion of his new book "Common Good Constitutionalism." On many matters of public policy and constitutional law, Vermeule's suggestions are, and he will hate this word, progressive. More importantly, his book contains a devastating critique of the never-ending debates between originalists and living constitutionalists--debates that have not furthered constitutional discourse in a helpful manner. We must stop dismissing people because we disagree with some of their ideas.

I have been attacked on Twitter for taking this book seriously. Some of those charges suggest that, because the man himself has said this or that allegedly offensive thing in the past, his book should be ignored. But I am discussing the book, not the man. Without minimizing my strong disagreements with Vermeule on some fundamental issues, the book is important and valuable because it presents a smart, sophisticated, and fresh (he would likely say ancient) perspective on the law. As a law professor, why wouldn't I be interested?

This blog post is not a full blown review. I will be writing one of those for the law reviews or some other forum. This post is motivated by my desire to wrestle with and learn from people with whom I disagree on some core matters and my belief that people shouldn't judge a book until they actually read it. There is so much for everyone in the book's 184 pages (before the footnotes).

Below are ten observations about "Common Good Constitutionalism" that I hope will motivate some people to read it....

I think they'll motivate originalists to distrust the book even more than they already do.  But they should read it anyway.

Joel Alicea: The Moral Authority of Original MeaningMichael Ramsey

J. Joel Alicea (Catholic University of America — Columbus School of Law) has posted The Moral Authority of Original Meaning (Notre Dame Law Review, Vol. 98, No. 1, 2022 (forthcoming)) (56 pages) on SSRN.  Here is the abstract:

One of the most significant developments in constitutional theory in recent years has been Adrian Vermeule’s critique of originalism from within the natural-law tradition. This Article is the first full-length response to Vermeule’s critique, presenting an affirmative argument for originalism from within the natural-law tradition. Although other theorists have offered natural-law justifications for originalism, they have not yet developed a theory of legitimate authority, which is essential both to the natural-law tradition and to originalism. This Article fills that gap by grounding originalism in the legitimate authority of the people-as-sovereign.

In doing so, it draws upon and adapts centuries-old natural-law arguments in favor of popular sovereignty that have rarely been mentioned in American law reviews and have never been presented as the basis for originalism. By creating a novel synthesis between this natural-law theory of popular sovereignty and originalism, the Article offers new responses to longstanding objections to popular-sovereignty-based originalist theories, such as the exclusion of women and enslaved Black people from the ratification process.

Finally, having answered those criticisms, the Article shows that obeying the original meaning of the Constitution is necessary to preserve the legitimate authority of the people, which is essential to achieving the common good. This allows the Article to confront the core of the Vermeulean critique: that originalism is incompatible with the natural law because it privileges the original meaning above the natural law when they are in conflict. The Article demonstrates that this critique overlooks the natural-law limits on judicial authority that undergird the common good. By grounding originalism in a moral argument drawn from the natural law, this Article shows that, far from being a morally empty jurisprudence, originalism is justified by the moral authority of original meaning.

Jennifer Mascott: The Ratifiers' Theory of Officer AccountabilityMichael Ramsey

Jennifer Mascott (George Mason University - Antonin Scalia Law School) has posted The Ratifiers' Theory of Officer Accountability (31 pages) on SSRN.  Here is the abstract:

This paper (currently still a preliminary draft) builds on my prior scholarship examining the original public meaning of the terms “Officer” and “Officer of the United States” in the Appointments Clause of Article II of the Constitution, Jennifer L. Mascott, Who Are Officers of the United States?, 73 Stan. L. Rev. 443 (2018). The project will mine public records of the State ratification debates in 1788 to examine the late 18th-century understanding of the role that “officers” were to play in the to-be-constituted federal government and the mechanisms that would ensure accountability to faithful and restrained public service.

That evidence suggests that in addition to the constitutional accountability mechanisms most commonly arising in modern public discourse such as impeachment and removal of federal officials, the ratifiers and 18th-century officials believed that federal authority would be restrained by a collective suite of new constitutional and statutory, along with preexisting common-law, mechanisms. Those mechanisms included the constitutional oaths clauses, the availability of preexisting common-law causes of action against federal officials, the posting of bond by executive officials involved in handling federal funds, statutory conflict-of-interest prohibitions, and transparency requirements imposed on Congress but not the executive.

The ratifiers also repeatedly emphasized their view that electoral accountability was a critical constraint. That view drove the ratifiers to find assurance in their understanding that the U.S. House of Representatives, whose members were subject to reelection every two years, would hold the greatest share of the federal policymaking power. That principal policymaking role is embodied in provisions such as the requirement that all bills raising revenue originate in the House, see U.S. Const. art. I, § 7, cl. 1. Ratification statements suggest that the Executive Branch, in contrast, would have charge over a comparatively small share of domestic policy determinations, which heavily influenced the ratifiers’ willingness to approve a governing document vesting all executive authority in one unitary head of that branch. Rather than posing a threat of corruption, the specter of political accountability arises in ratification debate statements as a critical safeguard and source of comfort. As the Constitution has been amended and government practice has transformed over the years, some of the original accountability mechanisms themselves no longer exist in their 18th-century form, such as the ability of the President to stand for reelection after his second term, see U.S. Const. amend. xxii. Nonetheless, the uncovering of the understanding of the individuals who voted to make the Constitution the governing document of the nation and supreme law over consenting States provides rich context for evaluating the original public meaning of the text and accountability constraints applicable to contemporary federal officials.

Using Force in Ukraine Requires Congress' ApprovalMichael Ramsey

Commentators are suggesting that the U.S. establish a no-fly zone in Ukraine, and perhaps take even stronger military action, in response to the Russian invasion.  Putting aside the wisdom of those suggestions, the Constitution's original meaning requires that Congress approve them.

(1) The declare war clause (Art. I, Sec. 8, cl. 11) gives Congress exclusive power over war initiation.  This conclusion arises from the text, founding-era commentary and post-ratification practice. 

(a) We may think of a "declaration of war" as a archaic formal announcement of war previously (but no longer) issued before nations engaged in hostilities.  That is not the Constitution's original meaning, however.  In the eighteenth century, writers routinely referred to "declaring" war by action -- most evidently by the use of military force.  (Examples of this use are collected in my article Textualism and War Powers and in this article by Saikrishna Prakash).  In an early example from the seventeenth century, John Locke referred to  "declaring by Word or Action" (Second Treatise on Government, section 16)  And many wars of the time were not formally declared.  An armed attack on another nation itself created a state of war; the attack was as much a declaration as a formal pronouncement would be.  Thus when the Constitution's text referred to Congress having the power to "declare" war, that included both formal pronouncements (called formal declarations) and acts that initiated a state of war (called declarations by action).  

(b) Founding-era commentary described the declare war clause as giving Congress complete power over war initiation, a view shared by key framers Hamilton, Madison, Washington and Wilson, among many others.  For example, Wilson in the Pennsylvania ratifying convention observed: "This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large."  Hamilton in his 1793 Pacificus essay wrote: "It is the province and duty of the executive to preserve to the nation the blessings of peace. The Legislature alone can interrupt them by placing the nation in a state of war." And John Marshall in an 1801 case Talbot v. Seeman noted that "the whole powers of war" are "by the constitution of the United States, vested in congress." (All quoted, along with others, in Textualism and War Powers, pp. 1549-1550).  I'm not aware of anyone in the ratification or early post-ratification period arguing that the President had unilateral war-initiation power.

(c) Early post-ratification practice confirms this allocation.  All of the foreign conflicts in this period were authorized by Congress, notably the 1798 "quasi-war" with France and the 1801 conflict with Tripoli (plus, of course, the War of 1812).  All of the debates surrounding these conflicts assumed that Congress had general control over war initiation.  

(2) Congress' war initiation power included power over limited wars as well as general wars.  A limited war was still understood as a war, as the 1798 quasi-war shows.  In that conflict, Congress approved only limited uses of force against France, principally that the U.S. navy could attack French warships in U.S. waters or on the high seas.  (One might think of it as an eighteenth-century version of a no-fly zone: a no-sail zone).  The conflict's limited nature led some at the time to call it a "quasi" war.  In the 1800 decision Bas v. Tingy, the U.S. Supreme Court concluded that the conflict with France was indeed a war, notwithstanding its limited nature. And everyone (including Hamilton, the era's leading advocate of executive power, and then-President Adams) thought the decision to use limited force was within Congress' exclusive war power.  (For an engaging account of the debates, see David Currie's The Constitution in Congress: The Federalist Period.)

(3) Undoubtedly some limited uses of military force don't count as wars, and thus may fall under the President's independent constitutional powers as commander-in-chief.  But as the quasi-war shows, a sustained use of force against the armed forces of another country counts as a war for constitutional purposes, even if the scope of the force is limited.  The President also likely has constitutional power to respond to attacks on the United States -- as Madison said at the 1787 Convention, the President would have power to "repel sudden attacks."  Presumably that was because the state of war was created by the other country, and the U.S. necessarily would defend itself; thus Congress' war initiation power wasn't implicated.

(4) Put together, these points show that under the Constitution's original meaning, congressional approval is needed for the U.S. to enforce a no-fly zone or otherwise use force to thwart Russia's attack on Ukraine.  First, using U.S. military force in this way would create a state of war between the U.S. and Russia -- it would, in the eighteenth century sense of the phrase, "declare" a war with Russia.  Thus it would fall under Congress' exclusive war-initiation power.  Second, the fact that the use of force would be limited (to aerial attacks, for example) wouldn't change the analysis.  A limited war is still a war for constitutional purposes, as the quasi-war shows.  Third, though the President has some independent military powers, they don't apply in this situation.  In particular, the fact that the U.S. would be defending Ukraine against an attack is immaterial to the constitutional analysis.  (It would presumably make a U.S. military response legal under international law, pursuant to the collective self-defense provisions of Article 51 of the U.N. Charter, but that is a different matter.)  The Russian attack on Ukraine did not create a state of war between Russia and the U.S.  If the U.S. decides to counter the attack on Ukraine with its own attack on Russian forces, the U.S. attack  is what would create a state of war.  And therefore it needs Congress' approval.

Finally, I think there's wisdom in the framer's design here.  A U.S. attack on Russian forces in Ukraine -- even a limited one -- would be a perilous undertaking.  Whether the risks are justified by the moral and strategic considerations at stake seems a momentous decision best trusted to a deliberative assembly broadly representative of the people.  Congress can act quickly if it wants to, and it has acted quickly on war initiation decisions in the past.  Requiring Congress' approval does not mean the U.S. won't be able to use military force; it only means that our recourse to military force may be (somewhat) less hasty than if the decision were left to a single person.

David Schwartz: Mr. Madison's War on the General Welfare ClauseMichael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted Mr. Madison's War on the General Welfare Clause (57 pages) on SSRN.  Here is the abstract: 

The General Welfare Clause of Article I, section 8, clause 1 of the Constitution ("Clause 1"), though ambiguous, is most naturally read to grant Congress the power to "provide for ... the general welfare", that is, to legislate on all national matters. James Madison understood this and recognized that this "general welfare interpretation" of Clause 1 presented a major textual obstacle to his tendentious "enumerationist" interpretation of federal powers: that the "the essential characteristic" of the Constitution was to grant only limited enumerated powers to the federal government. Madison therefore waged a 50-year campaign to render the General Welfare Clause "harmless," as an essential element of his broader project to win his preferred enumerationist interpretation and erase the nationalist interpretations of his one-time Federalist allies. Madison achieved a partial victory in this political struggle for constitutional meaning, by taming the General Welfare Clause and establishing enumerationism as an ideology to which we pay continued lip service. But his arguments against the general welfare interpretation, based primarily on text and Framers' intent, were circular, fallacious, or disingenuous. The weakness of Madison's arguments on this critical issue of federal power may account for his puzzling drift toward embracing "compact theory""the view that states, and not the sovereign people of the United States, are the true parties to the Constitution. Madison's war on the General Welfare Clause casts doubt on the practice of treating his partisan views on enumerationism as authoritative statements of the Constitution's original meaning.

Debunking the enumerated powers interpretation of the Constitution is a heavy lift indeed, and I'm not at all persuaded.  A couple of quick nonexhaustive points: 

(1)  The text indicates that the general welfare subclause is not a general power.  Here's the whole clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Just on its own, the general welfare subclause looks like a limit on the power to tax (the main subject of the whole clause).  If it were otherwise, one would expect that it would be in a standalone clause (as the other main powers are), not in a subclause, and especially not in a subclause sandwiched between the main power (taxation) and a limit on the main power (that duties, etc., must be uniform).  I think it quite apparent that the clause says Congress can lay taxes in order to provide for the general welfare (and common defense), but not otherwise, and that moreover the taxes have to be uniform throughout the country.

The rest of Article I, Section 8 supports that reading, because it contains a series of powers that are obviously in pursuit of the general welfare and/or common defense (e.g., interstate commerce, punishing counterfeiting, establishing post offices, granting patents and copyrights, declaring war, raising and supporting armies, providing for a navy, and calling forth the militia, just to pick a few).  Every single one of these grants is superfluous if Congress has a general power (not limited to spending) to provide for the general welfare (meaning, to regulate for the general welfare) and common defense.  To be sure, the Constitution has some redundancies, but this is more redundancy than can be reasonably credited.

(2) In Federalist 45, Madison famously wrote that "The powers delegated by the proposed Constitution to the federal government are few and defined."  Perhaps this was just Madison's "tendentious" view, but I'm not aware that anyone on the federalist side disputed it at the time.  As such, it was a core understanding on which the Constitution was ratified. And it is obviously inconsistent with the idea that Congress can regulate for the general welfare, and consistent with the idea that Congress' regulatory authority is limited to enumerated powers.

(3) In the bank debate, Madison and Hamilton famously debated the constitutionality of Congress chartering a national bank.  Hamilton said it was within Congress' power; Madison said it wasn't.  But they both argued on the assumption that Congress had only enumerated powers.  Hamilton said (in an argument repeated without attribution by Chief Justice Marshall in McCulloch) that chartering the bank was part of Congress' (enumerated) necessary and proper power.  

There are other points to be made, but I'll stop with these.  In this case, I think Madison (and Hamilton) had it right.

More from Vasan Kesavan on the Vice President's Tie-Breaking PowerMichael Ramsey

Responding to this post on the Vice President's tie-breaking power, Vasan Kesavan comments: 

I do think the VP has the casting vote on appointments under the Appointments Clause - no question.  Footnote 246 of my Electoral Count Act article wasn't complete and I think I straddled the VP-casting-vote-in-appointments question without embracing an answer -- I should have taken it further.  It's an easy, straightforward case as a matter of text.  It's only when one looks to The Federalist that there is confusion. Professor Tribe's op-ed and my footnote illustrate the dangers of quotation from The Federalist - the relevant sentence seems absolute. But, in the context of the whole paragraph it becomes clear that Publius (Hamilton) isn't talking about the Vice President at all.  Hamilton is comparing the power of the President with that of the governor of New York (the "power of the chief magistrate of this State").

 

It's worth remembering that Publius made some mistakes too, elsewhere - a topic for another day.  The VP's casting vote in appointments isn't one of them though.  There are good explanations for why it's still possible that no appointment could be made in the case of a tie - if the VP doesn't vote to support the President's nomination (as you point out, there was no "perhaps" about it - the VP was the President's rival or "chief opponent" as I do note in the footnote) or if the VP is absent.

 

Finally, looking back on n. 246, I'm not sure why I wasn't firmer about the VP having no casting vote in the contingency election for VP in the Senate under the Twelfth Amendment. It's clear that the VP does not have a casting vote in this circumstance.

 

I agree on all counts.  I feel better about this because, as my initial post indicated, I was concerned that he and I were reading the text differently -- but happily we aren't.  Professor Tribe is just wrong on this point.  (I don't worry about disagreeing with Professor Tribe, who's not really an originalist though sometimes makes excellent originalist arguments, but I do worry about disagreeing with serious originalists like Vasan Kesavan).

Jennifer Mascott on Bivens and Egbert v. BouleMichael Ramsey

Jennifer Mascott (George Mason) filed this originalist amicus brief in Egbert v. Boule (pending at the Supreme Court with argument March 2), which concerns the scope of Bivens remedies.  From her summary of argument:

There is no longstanding provenance for judicially implied constitutional causes of action like those created in Bivens. Rather, there was a historical tradition of federal courts entertaining state common-law damages claims against federal officials, typically for trespass. The nature and scope of that tradition demonstrates just how far afield from historical practice Bivens strayed when it announced a new cause of action assertedly derived from the Constitution itself in 1971. In the 18th and 19th centuries when federal courts considered cases involving longstanding state common-law causes of action, courts were not “fashioning” or “creating” or even expanding causes of action but instead applying longstanding law to defendants who happened to be federal officials. The suits sought to vindicate those longstanding common-law interests, not a separate category of allegedly constitutional rights. Indeed, from 1789 when lower federal courts under the new Constitution first opened their doors after their creation in the Judiciary Act, through the Civil War, constitutional questions rarely arose in the context of lawsuits against federal officials in Article III courts. Where they did, such constitutional questions tended to arise indirectly, as defenses, not as elements of the plaintiffs’ actions. The lack of federal question jurisdiction until 1875, see Act of Mar. 3, 1875, § 1, 18 Stat. 470, led to this procedural posture, and early suits against federal officers often necessarily arose in state court. Nonetheless, that jurisdictional vacuum facilitated a legal landscape in which there was no widespread early practice of federal judicial inferences of implied constitutional claims. And even scholars who note originalist support for the existence of federal common law pre-Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), often acknowledge the limited nature of such common-law authority—in contrast to a freewheeling ability for Article III judges to create and recognize developing causes of action as they saw fit based on policy considerations. See, e.g., Caleb Nelson, The Legitimacy of (Some) Federal Common Law, 101 Va. L. Rev. 1, 1–9 (2015) (suggesting that federal common law would not improperly stray into judicial lawmaking if it incorporated firmly grounded sources of authority “such as widespread customs, traditional principles of common law, or the collective thrust of precedents from across the fifty states”); Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 Va. L. Rev. 609, 610–16 (2015) (distinguishing federal judicial application of “general law” such as transnational legal authorities including “the law merchant, the law maritime, and the law of state-state relations” from the modern concept of “federal common law,” which the Supreme Court did not recognize “[f]rom the Founding through the nineteenth century”).

Bivens reversed course from the early practice. It created a direct cause of action for damages for violations of asserted constitutional rights—a cause of action unauthorized by any statute and previously unknown to the history and tradition of the federal judiciary. For the first time, federal courts were not just applying longstanding, generally applicable common-law damages actions to federal officials, but instead were creating new damages actions allegedly under federal law that applied solely to federal defendants. See Part I, infra. The limited nature of the federal government newly created under the 1788 Constitution is in irreconcilable tension with, and provides no basis for, a new 20th-century, judicially driven federal damages regime like the longstanding common law regime in place at the state level prior to federal constitutional ratification. The very nature of the bargain between state conventions ratifying the U.S. Constitution and the federal government was that the federal government would be constrained by the procedural and subject-matter limitations of the text that the popularly elected conventions ratified. Under that text and constitutional structure, statutes subject to rigorous Article I procedural requirements are the mandated principal source for new legal obligations, not judicially inferred damages actions from newly ratified substantive constitutional text.

Separation of powers principles inherent to that text explain why federal courts historically avoided creating damages actions absent statutory authorization from Congress. See Part II, infra. The core feature of the federal constitutional system is its character as a government of limited powers. See The Federalist No. 45 (James Madison) (“[T]he powers delegated by the . . . Constitution to the federal government are few and defined.”). The “legislative power” to create new federal causes of action is vested with Congress pursuant to Article I, not with the courts. Article III’s limitation of federal court jurisdiction to “cases” and “controversies” provides an additional indication that the courts were founded primarily to hear causes of action created via bicameralism and presentment, not to manufacture such actions in the first instance. Moreover, by inserting courts into judgments about sovereign and political trade-offs, Bivens claims are especially corrosive to separation of powers protections.

Liberty is best protected by enforcing the Constitution’s reservation of limited powers to each branch. “In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches.” Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016). Bivens is such an intrusion. Finally, disavowal of Bivens as lacking deep-seated historical origins would have no bearing on the lawfulness of recently reaffirmed equitable doctrines like the negative injunctive power countenanced in Ex Parte Young. The injunctive relief available under Young has been tied to origins dating back to the Judiciary Act of 1789, and even earlier in English equity history, and involves limited relief to halt unlawful and unauthorized government official actions rather than affirmative implications of private causes of action for monetary damages beyond the scope of clear legal text. See Part III, infra.

I think this is mostly right, at least as to the power of the federal courts to create federal constitutional causes of action.  It's complicated by the federal court's pre-Erie use of general common law, which might have supported a claim against federal officers acting unconstitutionally even in the absence of an express state law cause of action.  But broadly speaking the original understanding presumably was that federal officers who violated individual rights could be sued under state law, and if they were acting unconstitutionally they couldn't defend on the ground that they were engaged in federal business.  As a result, a cause of action based on the Constitution, as in Bivens, wasn't needed or appropriate.

However, as I've argued on this blog, the later point only makes sense today if the traditional state law remedies are still in place, which they aren't.  The brief acknowledges this point (with a cite to the Originalism Blog): 

To the extent that some remedy is perhaps deemed constitutionally necessary to address government official actions taken without any lawful scope of authority, ... the solution is not to rely on a mode of judicial creation of relief that is in tension with underlying constitutional requirements for the creation and regulation of federal subject-matter jurisdiction. Rather, the more appropriate reconsideration would be of the constitutionally proper scope of Westfall Act limitations on relief and preemption of traditional common-law damages actions against federal officials. Cf. Michael Ramsey, “Don’t Fear Bivens,” The Originalism Blog (Nov. 12, 2019), https://originalismblog.typepad.com/the-originalismblog/2019/11/dont-fear-bivensmichael-ramsey.html (contending that “absent a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims,” in analysis contending for the constitutionality of Bivens).

I agree with that statement: the Westfall Act, if interpreted to bar state law remedies for unconstitutional acts of federal officers, is unconstitutional (though not necessarily because "some remedy is ... constitutionally necessary," but because it's not necessary and proper for Congress to bar such remedies).  My point in the blog post was that Bivens basically stands in the shoes of the traditional common law remedies, so it is not such an anomaly as its critics suggest.  Rather, the anomaly is that today federal officials can avoid liability for constitutional violations of basic common law rights (unless they can fit their claims within the increasingly narrow scope of Bivens).

The issues presented in Egbert are:

(1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

My answer is that there should be a remedy if state law provides a remedy, and if you need Bivens to get there, that works for me.  I wouldn't extend Bivens beyond what state law would provide (which it sounds like the first issue might be trying to do). But the second issue is a straightforward trespass claim, and as an originalist matter I can't see why it should be barred just because it's in the immigration enforcement context and so not exactly like Bivens.

John McGinnis on the Harvard Admissions Case and the Original Meaning of Title VIMichael Ramsey

At Law and Liberty, John McGinnis, Precedent Does Not Protect Preferences. From the introduction:

This fall, the Supreme Court will hear claims that two colleges are engaging in racial discrimination in their admissions programs in violation of Title VI of the Civil Rights Act. In Students for Fair Admissions v. Harvard, students of Asian descent have alleged discrimination and shown, among much other evidence, that Harvard admits a slightly smaller percentage of Asian Americans ranked in first academic decile (based on scores and grades) than it does African Americans ranked in the fourth decile from the bottom. Students for Fair Admissions v. University of North Carolina raises similar issues. For instance, in the fifth academic decile, the admission rate of African American students is over forty percent greater than whites and students of Asian descent.  

Title VI reads simply: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title VI applies to all colleges that receive federal funds, including student aid. Because almost all colleges get some federal money, this is the most important case for higher education in decades.

The Court will consider whether to overrule its past cases, including Regents v. Bakke, Grutter v. Bolinger,  and Fisher v. University of Texas, that permitted race-based affirmative action in admissions so long as it promoted “diversity” and was carried out through “holistic methods” rather than quotas. Thus, one of the central issues in next term’s cases will be the stare decisis effect of these prior cases. It will likely be argued that the earlier holdings should be reaffirmed because of a rule that gives particularly heavy weight to statutory precedent as opposed to constitutional precedent. But reliance on stare decisis to insulate these cases from reconsideration would be mistaken, regardless of whether the Court determines that underlying issue is statutory or constitutional.

And from later on:

Title VI is unambiguous when it comes to preferential admission on the basis of race. It tells us that “No person” can be “excluded from participation in, or be subjected to discrimination under any program . . .  receiving Federal financial assistance” on the ground “of race, color, or national origin.”

The language could hardly be clearer. Nevertheless, the earlier courts have not followed the text, but have instead interpreted the language as if it read like the Fourteenth Amendment’s somewhat broader “equal protection of the laws,” rather than the pellucid command of Title VI. But there is no relevant ambiguity in the meaning of “excluded from participation in” or “race, color, or national origin” that importing the Equal Protection Clause helps clarify. Title VI could have been written to follow the constitutional provision, but did not.

Indeed, far from clarifying any ambiguity, the decision to interpret Title VI’s clear language to follow the Equal Protection Cause necessarily made the cases more difficult. The Clause is more abstract and less specific than the statute. The Court majorities in Bakke and subsequent cases were thus more easily able to claim that, while the Clause imposed substantial scrutiny on any race-conscious programs, the benefits of diversity met that heavy burden.

And if there was any doubt about whether this statute precluded the affirmative action that the Court claimed the Equal Protection Clause permitted, as Justice John Paul Stevens noted in his dissent, the comments in the legislative history made clear that it prohibited discrimination regardless of the race of those discriminated against.

Harvard Law Review Note on State Power over Presidential ElectionsMichael Ramsey

The Harvard Law Review recently published this interesting student note: “As the Legislature Has Prescribed”: Removing Presidential Elections from the Anderson-Burdick Framework.  From the introduction (footnotes omitted):

... The Supreme Court has provided many guideposts to navigate [the issue of state limitations on ballot access], the most important of which is the Anderson-Burdick balancing test. ...  The balancing test requires courts to weigh the injury to an individual’s First and Fourteenth Amendment rights, left undefined, against the state’s interest in imposing a given election regulation.

... [T]he more damning flaw in Anderson-Burdick is conceptual: it does not recognize that, as a matter of constitutional theory and actual practice, presidential elections, more than other elections, are left to the discretion of the states.

By returning to the Constitution’s text and revising presidential election caselaw to better accord with it, the Court may be able to solve these problems. This Note argues that a better approach lies in deference to the constitutional authority of states to make their own decisions with regard to presidential elections. Echoing the Supreme Court’s 1892 decision in McPherson v. Blacker and then–Justice Rehnquist’s dissent in Anderson, this deferential approach would strike down state restrictions only when they contravene a separate provision of the Constitution, with those provisions being read in the context of a system where the President is not popularly elected. Thus, while provisions like the First Amendment or the Presidential Qualifications Clause might still limit state authority, those limits would not create a general-purpose balancing test. In addition to ensuring greater textual fidelity, this approach would reduce uncertainty — there would be little doubt that most restrictions implemented by states were constitutional.

Anderson-Burdick applies to all restrictions on all elections, and that one-size-fits-all approach is one of the framework’s key shortcomings.  But this Note focuses specifically on presidential elections, to which the framework is particularly ill-suited. If the Supreme Court chooses to strike the test down, the different constitutional provisions governing congressional elections would not require the same level of deference to states. Judicial opinions often assume the existence of a right to vote, but that right need not manifest equally in all elections. Ballot access restrictions help frame this distinction because they are easily differentiated even in simultaneous elections. But the principles discussed below would be equally applicable to state laws, like voter ID laws or laws regulating polling places, that exclusively governed the casting of presidential ballots. ...

Part I reviews the constitutional basis for state authority in presidential elections, noting how states have historically exercised this power. Part II reviews Supreme Court decisions that have articulated restraints on the ability of states to manage their presidential elections. Part III argues that many of these decisions are inconsistent with the Constitution, and suggests an alternative approach based on deference to states. Part IV briefly surveys constitutional constraints on state authority that would remain under this approach. This Note concludes that, though a hands-off approach carries risks for democracy, it is nonetheless required as a matter of textual fidelity.

The relevant text is Article II, Section 1: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..." (Oddly, this isn't the text quoted in the note's title.)

The note seems correct in saying that this text establishes a discretion in the state legislatures, subject to other specific limits elsewhere in the Constitution's text (e.g., a state can't exclude a candidate from the ballot based on the candidate's speech).  The Anderson balancing test is just something the Court made up.  (In support of that view, Anderson was 5-4, with Rehnquist, White, Powell and O'Connor in dissent.)

Via Jay Willis at Balls and Strikes, who seems unduly worked up about the argument and also about the Harvard Law Review's quaint practice of publishing student notes anonymously.  Surely the merits of the article turn on its arguments and the author isn't important, unless of course one is interested in trying to punish the author for advancing views with which one disagrees, which is sadly all too common these days.

Eric Segall on the Originalism Conference and Engaging with DisagreementMichael Ramsey

A Dorf on Law, Eric Segall: Of Originalism, Political Polarization, Tolerance, and the Importance of Talking to the Other Side. From the introduction: 

Last Friday and Saturday I attended the 13th annual Originalism Conference at the University of San Diego. There were seven papers presented by legal academics and discussed over two days in a room full of approximately 45 self-identifying originalists, two non-originalists (myself and Professor Tom Colby), and one person who as a matter of self-identification straddles the line (an ice storm in the Midwest and Covid issues led to slightly fewer non-originalists at the conference than usual). For the record, my guess is that most of the professors there were members of the Federalist Society, though that organization had nothing to do with the conference. 

I commented on six of the seven papers and, as you'd expect, most of what I said was critical of originalism in general and the way the papers used originalism in particular. Although there was the expected pushback from almost everyone in the room, the conversations were friendly, civil, and I think helpful to the presenters. In any event, the debates helped me get a better understanding of numerous legal issues and how originalists viewed them. There was also substantial and robust debate and disagreement between and among the 45 or so originalists, all in the service of healthy academic discourse. 

I am pretty sure Professors Michael Rappaport and Michael Ramsey, who run run the program, would appreciate me saying the conference is open to all and non-originalists and anti-originalists are more than welcome to attend and are even appreciated. Given how much originalist discourse is going to (sadly) be presented to judges in the future, I recommend this conference highly to everyone, especially those who believe, as I do, that judicial focus on originalism is quite undesirable. 

All of which brings me to Ilya Shapiro, Elie Mystal, the Federalist Society, and our current state of social media and academic discourse. . . .

And in conclusion:

We need to listen to people who disagree with us, even to those who do so strongly, much more than we need to surround ourselves with people who think just like us. That is why I went to the Originalism Conference full of people with whom I mostly disagree. It is in those fora where I learn the most, and maybe, just maybe, do the most good.

Agreed, and thanks to Professor Segall for his kind words about the conference and for his participation in it.  There's a lot more of value in the post, most of which I agree with as well.

Katharine Young: Human Rights OriginalismMichael Ramsey

Katharine Young (Boston College Law School) has posted Human Rights Originalism (Georgetown Law Journal, Vol. 110, No. 5, 2022) (92 pages) on SSRN.  Here is the abstract:

Are human rights to be found in living instruments and practices that adapt to changing circumstances, or must they be interpreted according to their original meaning? That question, so heavily debated in the context of the rights of the U.S. Constitution, was never seriously on the table until 2020. But when former Secretary of State Mike Pompeo called for “fresh thinking” about human rights, and its connection with “our nation’s founding principles,” he brokered a return to two landmark instruments of human rights—the Declaration of Independence of 1776 and the Universal Declaration of Human Rights of 1948. His Commission on Unalienable Rights obliged, presenting the familiar tropes of fixed sources, venerated authorship, and national identity, in order to accomplish a drastically different presentation of the meaning of human rights. The end result is an act of fusion—the powerful political and cultural valence of America’s constitutional originalism, applied to the human rights of American foreign policy.

This Article identifies this innovation as “human rights originalism.” Although the Report of the Commission on Unalienable Rights has, at least for now, been shelved, human rights originalism may be one of the most enduring legacies of the Trump Administration. As an interpretive theory, human rights originalism promises many of the same benefits as its constitutional counterpart—simplicity, popular reach, and control of rights’ unruliness and proliferation—this time wrested from unaccountable United Nations institutions and experts rather than courts. As a substantive departure from contemporary human rights, human rights originalism elevates the importance of religious freedom and property rights, and provides a selective diminishment of women’s rights, LGBTQ+ rights, and racial equality, mirroring and further cementing current trends in originalist constitutional doctrine. The four standard epistemic communities that supply “meaning” to human rights—in the international, comparative, transnational, and philosophical domains—are all rejected by originalism, just as those domains are themselves inimical to it.

This homegrown form of human rights argument is significant for human rights law and foreign policy, but so too is it significant for originalism itself. In propelling originalism into the uncompromisingly global domain of human rights, originalism’s proponents expose the nationalism and exceptionalism that are perhaps its most unsettling features. At the same time, originalism’s own malleability is highlighted in its adaptiveness to the modern administrative state and the promises of the postwar period.

Lawrence Solum on Constitutional PrinciplesMichael Ramsey

At Legal Theory Blog, Legal Theory Lexicon: Principles in Constitutional Theory.  From the introduction:

When studying constitutional law, students are likely to be exposed to the idea that interpretation of the United States Constitution may include reference to what are sometimes called "constitutional principles"--general and abstract normative ideas that can aid or guide attempts to glean meaning from the text and may even provide "extraconstitutional" or "nontextual" reasons for decisions in constitutional cases.  For example, interpretation of the equal protection clause of the fourteenth amendment might be guided by an "antisubordination principle" or an "equal citizenship principle."  Similarly, the federalism provisions of the constitution might be interpreted in light of a principle of "dual sovereignty" or a principle of "state sovereign immunity."

What are constitutional principles?  How do they relate to legal theory more generally?  Where do they come from?  What role can they play in constitutional interpretation and the decision of particular cases?  This entry in the Lexicon explores these questions and examines the role of principles in constitutional interpretation. 

And from later on:

Most readers will immediately grasp the theoretical significance of the distinction between direct and textualist use of constitutional principles.  Some theories of constitutitional interpretation insist that the text of the constitution plays an essential role in constitutional law.  "Textualism" or "original meaning originalism," for example, insist that the linguistic meaning of the constitution is given by the "original public meaning" of the constitutional text.  It might be thought that these theories are inconsistent with constitutional principless, but, as we have seen, this is not necessarily the case.  If constitutional principles are used to resolve ambiguity or vagueness, then their use may be entirely consistent with an approach that gives pride of place to the original public meaning of the constitutional text.

On the other hand, there are alternative constitutional theories that seem more consistent with the direct use of constitutional principles.  For example, some forms of original intentions originalism conceptualize the original intentions of the framers as general principles: these principles (or intentions) can then be applied directly to resolve particular cases.  Similarly, Ronald Dworkin's approach to constitutional interpretation could be understood as consistent with the direct approach to constitutional principle.

Regular readers won't be at all surprised that I'm very skeptical (to put it mildly) of "constitutional principles" stated in the abstract and unconnected to the Constitution's text.  There are of course principles incorporated into the text (as in "the freedom of speech" referenced in the First Amendment) and there are principles implemented by the text (such as separation of powers).  And there are background legal rules that the Constitution may have implicitly adopted because they were widely assumed at the time of enactment.  But I have a hard time seeing how abstract constitutional principles are identified apart from the text or the specific background assumptions of the relevant time.  One can say, for example, that privacy and personal autonomy are constitutional principles, and maybe they are -- but maybe they aren't, and I'm not sure how that would be proved (other than by the text or widely shared background assumptions of the relevant time).  More often, it seems to me, "constitutional principles" are those that the speaker thinks ought to be incorporated into the Constitution, even though they aren't.  (See, e.g,, here).  Because if they were incorporated into the text, they wouldn't need to be "constitutional principles" -- they would just be part of the Constitution.

New Book: "Common Good Constitutionalism" by Adrian VermeuleMichael Ramsey

As foreshadowed, and now published: Common Good Constitutionalism by Adrian Vermeule (Polity 2022).  Here is the book description from Amazon:

The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the “living constitutionalism” of progressives. Is it time to look for an alternative?

Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as “a reasoned ordering to the common good.” In this view, law’s purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of “common good constitutionalism.”

This erudite and brilliantly original book is a vital intervention in America’s most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.

From the reviews, Jack Goldsmith says it "is destined to infuriate, and to reorient."  And for just $17.96.

Patrick Borchers: Ford Motor Co. v. Montana Eighth Judicial District Court and 'Corporate Tag Jurisdiction' in the Pennoyer EraMichael Ramsey

Patrick J. Borchers (Creighton University School of Law) has posted Ford Motor Co. v. Montana Eighth Judicial District Court and 'Corporate Tag Jurisdiction' in the Pennoyer Era (Case Western Reserve Law Review, Vol. 72, No. 1, 2021) (46 pages) on SSRN.  Here is the abstract:

In its seventh personal jurisdiction decision since 2011, the Supreme Court in Ford Motor Co. v. Montana Eight Judicial District Court ruled for the plaintiff and found jurisdiction, after six straight victories for defendants. All eight of the participating Justices found the "minimum contacts" test (which has been the central test for personal jurisdiction since 1945) satisfied, though the rationale was splintered with five signing Justice Kagan's majority opinion, Justice Alito concurring only in the judgment, and Justice Gorsuch (joined by Justice Thomas) also concurring only in the judgment.

The opinion involved two consolidated cases presenting similar facts. In each, a Ford automobile, designed and manufactured outside the forum state, was initially sold in a state neighboring the forum state, and then resold in a private transaction to a forum-state resident, where it became involved in an accident injuring the plaintiff due to an alleged defect in the vehicle. In each forum state, defendant Ford Motor Co. had substantial business contacts (dealerships, sales of new and used cars, sales of replacement parts, automobile service centers, etc.). However, under the Supreme Court's now-restrictive view of "general jurisdiction" (jurisdiction based on contacts with the forum state unrelated to the claim) the plaintiffs could not establish general jurisdiction in the forum states of Montana and Minnesota, because neither was the principal place of business or the state of incorporation of Ford.

The plaintiffs had to establish "specific jurisdiction," meaning that they had to show that their claims "arose out of or related to" Ford's forum-state activities. Although all eight Justices agreed that there was the necessary relationship between the contacts and the forum states, they divided on what relationship suffices; the majority offered a nebulous "affiliation" test while the other Justices preferred a causation test, whereby the defendant's forum-state activities must be a cause of the events giving rise to the claim..

This article does not closely examine the Supreme Court's minimum contacts analysis. Rather, it accepts the invitation of Justice Gorsuch to examine the historical justification (if any) for the Due Process Clause limiting jurisdiction over corporations. As Justice Gorsuch noted, corporate defendants have fared well under the minimum contacts test. He asked why this is so and whether there is an originalist or textualist justification for the solicitous treatment of them.

This article argues that case for requiring purposeful, related contacts by defendants (including corporate defendants) is ahistorical and unfair in operation. It focuses in particular on New York's "Pope" rule, which in the late 1800's and early 1900's allowed for jurisdiction over corporations if a corporate officer were served in the forum state, even if casually and the corporation lacked substantial business connections with New York. The U.S. Supreme Court refused to strike down "Pope" assertions of jurisdiction until 1915, almost a half century after ratification of the 14th Amendment. Even after that, the Supreme Court continued to allow jurisdiction over corporations under corporate registration statutes that required the corporation to appoint an in-state agent for service of process.

Given the weak historical justification for closely regulating jurisdiction under the Due Process Clause, this article argues for subsuming jurisdictional due process norms under procedural due process. Under the proposed test, an assertion of jurisdiction would be unconstitutional only if the choice of forum imposed costs on the parties or created a risk of an inaccurate resolution disproportionate to the stakes involved in the case.

Leonid Sirota: Purposivism, Textualism, and Originalism in Recent Cases on Charter InterpretationMichael Ramsey

Leonid Sirota (University of Reading Law School [U.K.] and Double Aspect blog) has posted Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation ((2021) 47:1 Queen’s Law Journal 78) (34 pages) on SSRN.  Here is the abstract:

Both the Supreme Court of Canada and Canadian scholarship often treat debates about constitutional interpretation as settled. This articles shows that this is not so. While it is commonly assumed that purposivism is the authoritative interpretive method, originalism and textualism continue to influence the Supreme Court's decision-making. This article demonstrates their decisive influence on three recent cases interpreting the Canadian Charter of Rights and Freedoms.

After an overview of the main interpretive approaches present in the Supreme Court's eclectic jurisprudence ― purposivism, living constitutionalism, and originalism―the article critically assesses the majority and minority reasons in R v Stillman, R v Poulin, and Quebec (Attorney General) v 9147-0732 Québec Inc. While all the opinions profess fidelity to purposivism, they are sharply divided about interpretive questions. A close examination of the majority opinions shows that they were, in fact, more textualist or even originalist than they acknowledged. Their endorsement of purposivism and even the ostensible rejection of textualism in Québec Inc are hollow.

On “Federal Functions,” the 2020 Presidential Election, the Necessary and Proper Clause, and Our Constitutional Law CoursesRob Natelson

[Ed.: We're pleased to have Rob Natelson back for another guest post.  He taught Constitutional Law, Advanced Constitutional Law, First Amendment, and Constitutional History at the University of Montana. After 25 years he left academia in 2010 to work with the Independence Institute in Denver, where he is Senior Fellow in Constitutional Jurisprudence. He is the author of, among many other works, The Original Constitution: What It Actually Said and Meant (3d ed., 2015).]

I’ve become known among state lawmakers for my contributions to the popular press and as a member of the board of scholars for a legislative trade organization. So I should not have been surprised when, in the aftermath of the November 3, 2020 presidential election, I started getting calls and emails from state lawmakers and their associates in those states where the apparent results were disputed.

They had been receiving multiple reports of serious voting irregularities. By “reports” I don’t mean the claims of the Trump campaign. I mean statements from constituents about what they had seen on the ground. These statements seemed reliable enough to outweigh media efforts to dismiss them.

“We may have a mess,” they said. “What, if anything, can we do about it?”

The usual answer from their legislative counsel seems to have been: “Nothing.” Counsel told lawmakers that because the popular vote was over and the results had been (or were about to be) certified, the choice of presidential electors was a fait accompli. Moreover, in all states with disputed presidential elections, the governor (whether Republican or Democrat) opposed legislative response. Lawmakers were told, “The governor is not going to call you into session. And even if the state constitution allows you to call yourselves into session, the governor will veto anything you try to do.”

However, this advice was erroneous.

In fact, lawmakers could have called themselves into session, whether the state constitution authorized it or not. They could have acted without the governor’s cooperation. They could have (1) investigated to ascertain whether there were serious irregularities and, if so, their likely effects, (2) called a re-vote for presidential electors, or (3) chose the electors themselves. The only caveat was that any new slate of electors would have to be chosen before the constitutionally-authorized federal deadline of December 14—the day designated as the time presidential electors cast their ballots.

This post builds on that episode to develop three principal points:

*          There is a significant, but little-understood field of law governing the exercise of constitutional power (“federal functions”) by persons and entities not acting as part of the federal government.

*          The rules governing federal functions often are different from those governing other enumerated powers. Neither ordinary legislation nor the Necessary and Proper Clause applies to them.

*          A primary reason this field is little understood, including by legislative counsel, is that we don’t teach it in law school constitutional law courses. We are too busy teaching more transient doctrines.

I.  Federal Functions.

The Constitution grants enumerated powers to Congress, the President, the Courts, and the federal government per se. (The grants to the federal government are phrased in words of obligation. They appear, for example, in the Guarantee Clause of Article IV and the Debt Assumption Clause of Article VI.) But the Constitution also grants powers to persons or entities acting outside the federal government. The courts refer to the exercise of those powers as “federal functions.” Detailed citation in support of the following discussion is available in my recent article on the subject (pdf).

Some “federal function” grants are to ad hoc entities. By way of illustration, the Constitution grants the Electoral College power to select the President and Vice President. It grants conventions power to propose and ratify amendments.

Other federal functions are performed by state officials. The Constitution gives governors authority to issue writs for election to fill congressional vacancies. It gives state legislatures power to regulate the times, places, and manner of holding congressional elections. It also authorizes state legislatures to force the call of a “Convention for proposing Amendments” and, if designated by Congress, to ratify amendments. Before the Seventeenth Amendment, the Constitution entrusted state legislatures with power to elect U.S. Senators as well.

Additionally, the Constitution bestows power on Congress (acting bicamerally) to propose constitutional amendments and (acting unicamerally) to oversee the count of electoral votes. It grants the House of Representatives (acting under special rules) and the Senate power to conduct run-off elections for the President and Vice-President respectively.

Finally, the Constitution bestows the choice of presidential electors on the states qua states, but authorizes only their legislatures (not, for example, their constitutions or other institutions) to determine the “Manner” in which the choice is made.

The power to exercise a federal function comes directly from the Constitution. Occasionally, the Constitution grants the function to the entire legislative apparatus of a state and contemplates that the function will be exercised by state law. For example, in Arizona State Legislature v. Arizona Independent Redistricting Commission (pdf) the Supreme Court held that the Election Clause grant to set the times, places, and manner of congressional elections is given to the entire legislative apparatus of the state. Thus, it includes any local provisions for initiative and referendum and gubernatorial veto. From an originalist standpoint, this decision probably was correct, because (as far as I have been able to determine) colonial and early state legislatures adopted election regulations by ordinary statute.

Most federal functions, however, are carried out by the person or entity named in the Constitution, acting alone. Thus, in 1798, the Supreme Court held that when Congress proposes a constitutional amendment it does not act in a legislative capacity, so the signature of the President is unnecessary (pdf). Later jurisprudence has extended the same principle to state legislative action in the amendment process. Participating assemblies act pursuant to the Constitution as representatives of the people, without participation by the governor and without mechanisms of direct democracy. Similarly, in 1892 in McPherson v. Blacker (pdf), the Supreme Court compared the state legislature’s power to determine the manner of choosing presidential electors to the legislature’s then-prevailing authority to select U.S. Senators—both of which the legislature could do without regard to state constitutional limitations, such as the gubernatorial veto. Indeed, McPherson held that state legislative power over the choice of electors was “plenary.” (SCOTUS reaffirmed McPherson as good authority in 2020 (pdf).)

In McPherson, the court made it plain that state constitutional limitations on the legislature do not apply to its federal function of determining the manner of choosing electors. In 1922 the Supreme Court, speaking through Justice Louis Brandeis, held that because ratification of a constitutional amendment is a federal function, the governing law is solely federal constitutional law (pdf); state laws and constitutions are irrelevant. In 1982, a federal district court held that Congress’s Article I lawmaking power is likewise irrelevant to the amendment process (pdf).

II.  The Necessary and Proper Clause, the Electoral Count Act, and the 2020 Election

A number of legal writers, including Professor Michael Ramsey in his excellent recent commentary on the Electoral Count Act, have assumed that the Necessary and Proper Clause grants Congress power to regulate federal functions. But consideration of the foregoing principles shows that this is not so. The Necessary and Proper Clause authorizes Congress to make “Laws.” If federal functions are governed directly by the Constitution and not by federal laws, the Clause is inapplicable on its face. Moreover, the Clause applies to the “Government of the United States” and to its “Department[s]” and “Officer[s].” State legislatures, governors, the Electoral College, and independent conventions are not “Departments” of the federal government. Nor, really, is Congress when it acts in the amendment process or in a joint session for counting electoral votes. It exercises those functions as an independent assembly.

In 1975, John Paul Stevens, who was just about to ascend to the Supreme Court, chaired a three-judge district court panel in a case called Dyer v. Blair (pdf). The issue was the validity of the Illinois legislature’s ratification of the Equal Rights Amendment. I commend this case as a source of federal function law. Justice Stevens’ most relevant point for our purposes is this: When a legislature or convention exercises a federal function, statutory law on the subject is advisory only.  The assembly may choose to comply with it, and that choice may be inferred from the assembly’s action. But the assembly is not required to comply with it.

It follows that the Electoral Count Act is unconstitutional as a statute. It is valid only as a recommendation to the joint session of Congress, which may opt to follow or disregard it.

As for the 2020 presidential election, federal function law makes it clear that the legislatures in states with disputed presidential election results could respond as independent assemblies. They didn’t need the governor to call them into session. They could call themselves into session. They didn’t need the governor to sign their bills. They didn’t need the governor at all.

By the time state lawmakers learned this, however, it was too late to pursue most of the options they otherwise could have pursued.

III. A Failure in our Constitutional Law Courses

The realm of federal functions is an important area of constitutional law. It governs the amendment process. It governs, in large part, our presidential elections. It governs, to a certain extent, our congressional elections.  But I’ve never heard of the subject being addressed in a law school constitutional law course. Perhaps a reader can tell me of one. Is it any wonder that state legislative counsel were ignorant of it?

One reason we exclude federal functions from constitutional law courses is what we include.  If the available law school case books are any measure, we spend an average of two-thirds of our course time on only two percent of the Constitution—that is, on the First Amendment and on Sections 1 and 5 of the Fourteenth Amendment. Perhaps this is because we feel comfortable with the “common law”-type methodology the Supreme Court has imposed in those areas. Or, just as likely, it is because law professors like to talk about race, sex, and porn—or believe their students do.

Whatever the reason, I think it is perverse to spend so much class time on areas of recurrently-shifting jurisprudence, while neglecting constitutional principles that are just as central and far more enduring.

I retired from law teaching in 2010. Sometimes (although admittedly not often) I think I’d like to do it over.

Thirteenth Annual Originalism Works-in-Progress Conference in San Diego Friday and SaturdayMichael Ramsey

The Thirteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference, hosted by the University of San Diego Law School's Center for the Study of Constitutional Originalism, will take place tomorrow and the next day, February 18-19, 2022.  Here is the schedule: 

Friday, Feb. 18

2:30 – 2:45      Opening Remarks, Michael Rappaport (USD)

2:45 – 4:00      First Paper: Will Baude (Chicago): Severability First Principles

Commentator: Tara Leigh Grove (Alabama); Moderator: Steve Smith (USD)

4:15 – 5:30      Second Paper: Michael Paulsen (St. Thomas), The Power to Declare Peace

Commentator: Michael McConnell (Stanford); Moderator: Larry Alexander (USD)

Saturday, Feb. 19

9:30 – 10:45    Third Paper:  Evan Bernick (Northern Illinois) & Chris Green (Mississippi), There Is Something That The Constitution Just Is

Commentator: Bernie Meyler (Stanford); Moderator: Eric Segall (Georgia State)

11:00 – 12:15  Fourth Paper: Ilan Wurman (Arizona State), Reconstructing Reconstruction-Era Rights

Commentator: John Harrison (Virginia); Moderator: David Upham (Dallas)    

1:30 – 2:45      Fifth Paper: Adam Samaha (NYU), Construction Zone Destruction

Commentator: John McGinnis (Northwestern); Moderator: Tom Colby (George Washington)

3:00 – 4:15      Sixth Paper: Jud Campbell (Richmond), Rights of American Citizenship

Commentator: Ryan Williams (Boston College); Moderator: Mila Sohoni (USD)

4:30 – 5:45      Seventh Paper: Anthony Bellia (Notre Dame) & Bradford Clark (George Washington), The Original Law of Constitutional Interpretation

Commentator: Ingrid Brunk Wuerth (Vanderbilt), Moderator: Maimon Schwarzschild (USD)

Conor Casey & Adrian Vermeule: Myths of Common Good ConstitutionalismMichael Ramsey

Conor Casey (University of Liverpool School of Law & Social Justice) & Adrian Vermeule (Harvard Law School) have posted Myths of Common Good Constitutionalism (Harvard Journal of Law and Public Policy, Vol. 45, No. 1, 2022) (43 pages) on SSRN.  Here is the abstract: 

This essay takes stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and question-begging claims, especially for the superiority of originalism.

Our hope is to clear away these myths so that actual engagement may occur. We hope to inaugurate a new phase of discussion, one in which critics of the classical legal tradition begin with a baseline comprehension of what it is they are criticizing. In a sense, despite all the sturm und drang, the real debate over common good constitutionalism has yet to begin.

Part I sketches the largely ersatz debate so far. Part II introduces the essentials of the classical theory of law and of common good constitutionalism, which is nothing more than the core precepts of the classic legal tradition translated, adapted and applied to current constitutional debates. We do not purport to provide a comprehensive statement of the classical theory, but merely offer an introductory mini-primer, with references to more comprehensive literature. As we will see, the myths we will discuss beg even the elementary questions. Part III explains how the myths are incorrect—or, more precisely, beg the questions in controversy. In the conclusion, we invite genuine engagement with the classical legal tradition.

John Kerkhoff on Julian Mortenson on NondelegationMichael Ramsey

At the Yale Journal on Regulation's Notice and Comment Blog, John Kerkhoff (Pacific Legal Foundation): Sources and Subdelegation.  From the introduction: 

In their important paper on nondelegation, Professors Julian Davis Mortenson and Nicholas Bagley take to task those who use thinly sourced arguments to support the nondelegation doctrine. They put it bluntly: “It should go without saying that sweeping assertions about widely shared (let alone undisputed) understandings should not rest on such scanty source material.” (p. 297).

I agree. But such a rule should apply across the board. That includes their own work—and particularly to the sweeping assertion that the Founders explicitly embraced subdelegation of legislative powers to other branches. Yet it turns out that for this claim, they cite just one lecture from one founder, and the lecture does not even say what Mortenson and Bagley suggest it does.

Last month, Professor Mortenson doubled down on this position—with the same citation—in an amicus brief to the Supreme Court in a case about an agency’s delegated powers. To my mind, the case doesn’t present much of a nondelegation issue, but lots of people think otherwise, so the case has drawn attention from all corners of the nondelegation world. ...

From the core of the argument:

To my concern with the brief. It first points out that “the legislature’s authority had already been delegated by the people.” (Brief, p. 4). That’s certainly correct. “We the people,” as sovereign, delegated powers to the separate branches—including to Congress. But the brief then goes on to say that “the propriety of further subdelegation was taken for granted.” This goes to the heart of the brief’s claim: that there was no nondelegation doctrine at the Founding. In support of this crucial proposition, the brief cites to only one source: the lectures of James Wilson. Mortenson’s law review article invokes the same citation to argue that “legislative power could be redelegated just like any other.” (p. 299).

I agree that it's problematic to rely just on Wilson to establish a widely held founding-era understanding, if that's what Professors Bagley and Mortenson are doing.

As to the substance, the post continues:

[I]t is crucial to understand what Wilson said. Here is the passage, as quoted by Mortenson and Bagley in their paper:

Representation is the chain of communication between the people and those, to whom they have committed the important charge of exercising the delegated powers necessary for the administration of publick affairs. This chain may consist of one link, or of more links than one; but it should always be sufficiently strong and discernible. (p. 299)

This passage, standing alone, can certainly be read to support Mortenson’s claim. But a closer look shows that it has nothing whatsoever to do with subdelegation of legislative powers, let alone delegations to a separate branch. The passage instead has to do with what historian Gordon Wood has explained was the new form of representation reflected in the American system of government: one in which the people for the first time were represented throughout all of government, not just the legislative branch. (Wood, Creation, at p. 596-603). As the context of Wilson’s lecture makes clear, he is talking about the chain of representation from the people to judges. 

Substantial further historical discussion follows.  It's a serious challenge, and it will be interesting to see how Professor Mortenson responds.

Without looking at the matter too closely, I'm doubtful that even on its face the Wilson quote supports the Bagley/Mortenson hypothesis.  In any event, it doesn't show a founding-era reading of particular constitutional text, since Wilson was speaking very abstractly (as he often did).  I would be hesitant to rest much on it.

(Thanks to Ilan Wurman for the pointer.)

Mark Joseph Stern on the Federal Employee Vaccine MandateMichael Ramsey

I don't often agree with Slate's polemical left-wing legal commentator Mark Joseph Stern, but I think he's right on this one: The 5th Circuit Just Rewarded a Brazen Heist of Presidential Power.  As he explains: 

[T]he 5th U.S. Circuit Court of Appeals upheld one of the most egregious abuses of the federal judiciary in memory. By a 2–1 vote, the court refused to halt a Trump judge’s nationwide injunction barring President Joe Biden from requiring his own workforce to get vaccinated against COVID-19. 

...

It’s important to understand at the outset that this case, Feds for Medical Freedom v. Biden, is fundamentally different from other vaccine-related lawsuits. Previous cases tested the limits of the executive branch’s authority to compel private companies—including federal contractors and recipients of government funding—to impose a vaccine mandate (or a vaccinate-or-test policy) on their workers. Feds for Medical Freedom involves a very different workforce: the executive branch of the United States government. The president, of course, is the head of the executive branch, and according to the Supreme Court, he holds all executive power. Although the chief executive often delegates oversight of his roughly 2.1 million employees, he is, as a constitutional matter, their boss. Congress has acknowledged this fact in a sweeping law that allows the president to “prescribe regulations for the conduct of employees in the executive branch.” And the Supreme Court has recognized that, under both this statute and his inherent constitutional authority, the president bears responsibility for “the efficient operation of the executive branch.”

And from Judge Stephen Higginson's dissent from the 5th Circuit order:

“Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (quoting U.S. Const. art. II, § 1, cl. 1; id. § 3). The President’s executive power has long been understood to include “general administrative control of those executing the laws.” Id. at 2197-98 (quoting Myers v. United States, 272 U.S. 52, 163-64 (1926)). Accordingly, the President “has the right to prescribe the qualifications of [Executive Branch] employees and to attach conditions to their employment.” Friedman v. Schwellenbach, 159 F.2d 22, 24 (D.C. Cir. 1946); see also Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974) (noting “the President’s responsibility for the efficient operation of the Executive Branch”); Crandon v. United States, 494 U.S. 152, 180 (1990) (Scalia, J., concurring in the judgment) (describing “the President’s discretion-laden power” to regulate the Executive Branch under 5 U.S.C. § 7301); Nat’l  Treasury Emps. Union v. Bush, 891 F.2d 99 (5th Cir. 1989) (upholding President Reagan’s executive order authorizing random drug testing of certain federal employees). Thus, the President, as head of the federal executive workforce, has authority to establish the same immunization requirement that many private employers have reasonably imposed to ensure workplace safety and prevent workplace disruptions caused by COVID-19. 

...

Though the district court asserted, without evidence or citation, that “there is no reason to believe that the public interest cannot be served via less restrictive measures than the mandate” and that “[s]topping the spread of COVID-19 will not be achieved by overbroad policies like the federal-worker mandate,” the public interest is not served by a single Article III district judge, lacking public health expertise and made unaccountable through life tenure, telling the President of the United States, in his capacity as CEO of the federal workforce, that he cannot [impose the vaccine mandate].

Agreed.  The power to supervise the executive branch is vested in the President by Article II, Section 1.  It isn't subject to court review to determine whether in the court's opinion "the public interest [could] be served via less restrictive measures."  That is a court attempting to exercise executive power.

Plus (as both Stern and Judge Higginson note), even if the court were right on the merits, the issuance of a nationwide injunction here is surely beyond the judicial power.  From Judge Higginson's dissent: 

However, even if I were to conclude that the motion should be denied with respect to these plaintiffs, I would grant the  government’s motion insofar as the district court’s nationwide preliminary injunction applies to any person or entity that is not either a named plaintiff or an individual possessing, at the time the complaint was filed, bona fide indicia of membership in one of the plaintiff organizations. As we recently explained, nationwide injunctions “can constitute ‘rushed, high-stake, low-information decisions,’ while more limited equitable relief can be beneficial.” Louisiana v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (quoting Department of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of a stay)); see also Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring) (observing that nationwide injunctions “are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch”). [also citing Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 421, 424 (2017)].

Even if one credits my colleague Mila Sohoni's defense of nationwide injunctions in some cases, this seems clearly not one of those cases.  The judge has no authority to go beyond the relief necessary to protect the plaintiffs, and I cannot imagine how a nationwide injunction is needed to protect the plaintiffs in this case (again, even assuming they are right on the merits).

So Stern's outrage seems justified in this instance.  I don't recall, though, any similar outrage from him regarding nationwide injunctions overturning exercises of executive discretion during the Trump administration.

Joseph Kimble: Dictionary Diving in the CourtsMichael Ramsey

Joseph Kimble (WMU–Cooley Law School) has posted Dictionary Diving in the Courts: A Shaky Grab for Ordinary Meaning (22 Journal of Appellate Practice and Process (2022 forthcoming)) (54 pages) on SSRN.  Here is the abstract:

This article examines courts’ use and misuse of general (lay) dictionaries. It is unique in several respects: (1) I believe it is the first to collect data on the use of dictionaries from a court’s beginning—in this instance the Michigan Supreme Court from 1845 until 2020. The numbers are startling. And they correspond with the rise in textualist methods of interpretation. (2) It catalogues 15 ways in which this court has has misused dictionaries. Those same kinds of misuses would surely appear in cases from other jurisdictions. (3) It collects comments from lexicographers themselves on courts’ use of dictionaries. (4) It explains in some detail why resorting to dictionaries is linguistically misguided. (5) It collects and distills, at the end, the (scathing) scholarly commentary.

Vasan Kesavan on the Vice President's PowersMichael Ramsey

Seth Barrett Tillman reminded me of this classic article by originalist writer Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N. Carolina L. Rev. 1653 (2002), which anticipates some of the current issues relating to the Vice President's power (see here and here).

Among other things, the article asks whether the Vice President counts the electoral votes (recall that under the Twelfth Amendment "The President of the Senate [i.e., the Vice President] shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted").  Kesavan says this does not in itself empower the Vice President to count the votes (contra John Eastman), and on further reflection that seems right to me.  We should conclude that the passive voice ("the votes shall then be counted") is there for a reason, and the most evident reason is to not specify who counts.  If the intent was to constitutionally designate the Vice President, it would have been easy to say "the President of the Senate shall then count the votes."

Kesavan next says that if the Constitution doesn't specify who counts, Congress can make that determination.  I agree with that too.  The necessary-and-proper power gives Congress power to carry into execution the power to count, including specifying who is to do it.

Finally, Kesavan says that Congress cannot specify the Vice President as the person who counts.  Here I disagree (and thus would defend this part of the Electoral Count Act).  I see no textual limit on Congress' power to decide who counts.  Kesavan says there is an implied constitutional limit on conflicts of interest that prevents Congress from vesting the counting power in the Vice President (who may be a candidate).  That's way too much implication for me.  The Constitution creates potential conflicts of interest in lots of places.  If Congress is worried about a conflict of interest here (and maybe it should be), it can vest the counting power elsewhere, or (as the Electoral Count Act does) put substantial limits on it.

At the end of the section (pp. 1709-1710), Kesavan takes up a question that implicates the Vice President's tie-breaking power:

A final consideration is whether the President of the Senate has a vote in the counting function when questions arise. Although the counting of electoral votes takes place in the presence of the President of the Senate, the President of the Senate participates no more in the counting function than she participates in trial of impeachment--in neither case does the Vice President have a vote. The Constitution carefully circumscribes the participation of the Vice President in the business of the Senate: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” The joint convention of the Senate and House of Representatives--assembled for the purpose of the electoral count--is most decidedly not the Senate. To be sure, the Electoral Count Act provides that, upon any objection to an electoral vote, the Senate shall separately withdraw to consider the objection. Notwithstanding constitutional objections to this bicameralism, neither textual nor structural reasons suggest that the President of the Senate's tie-breaking vote in the Article I business of the Senate applies to any Article II business of the Senate in counting electoral votes.

The first part of this paragraph seems fine.  But the last part seems unsupported.  Kesavan assumes that the Vice President's tie breaking power relates only to "the Article I business of the Senate" (anticipating Laurence Tribe's recent argument relating to appointments).  But Kesavan provides no reason to think the tie-breaking power is limited to "Article I business."  He says there is no textual reason to think the power extends beyond Article I -- but I think instead that because the text has no such limit, one should not be implied.

In a long textual footnote (note 246), he continues:

As a related matter, it is not at all clear that the Vice President may cast a tie-breaking vote in a contingency election for Vice President in the Senate should there be no winner under the electoral college mode of vice presidential election. U.S. Const. amend. XII provides:

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

...

There are some very good reasons to seriously doubt that the Vice President could cast such a tie-breaking vote. As a textual matter, the Vice President is not a “Senator” and the Twelfth Amendment ostensibly requires a majority of the whole number of Senators--today, fifty-one Senators. If there is no majority of Senators in a contingency election for Vice President in the Senate, the Senate would have to choose again. ...

Agreed.  The textual analysis is conclusive.  The Vice President is not a Senator, and a "majority of the whole number [of Senators]" is required.  But then he adds, somewhat tentatively:

Finally, if the theory is that the Vice President's power to cast tie-breaking votes only applies to Article I business (legislation and the internal matters of the Senate, including the election of Senate officers and the appointment of Senate committees) and not to Article II or Twelfth Amendment business, then it would also follow that the Vice President would not have a tie-breaking vote under the Treaty Clause or the Appointments Clause, which both appear in Article II. See U.S. Const. art. II, §2, cl. 2. This appears to be the case, reinforcing the arguments above. It is not possible for the Vice President to cast a tie-breaking vote with respect to treaties which require a two-thirds majority of Senators, see id., but it is possible for the Vice President to do so with respect to presidential nominations under the Appointments Clause, which only require a majority of Senators. Notwithstanding, Alexander Hamilton intimated early on that the Vice President could not cast a tie-breaking vote on presidential nominations under the Appointments Clause. See The Federalist No. 69, at 389 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961) (“In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale and confirm his own nomination.”). The lack of mention of the Vice President is surprising given that he discussed the Vice President (and her tie-breaking vote) in the immediately preceding essay, see The Federalist No. 68, at 47 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961), but perhaps he thought that the Vice President would not necessarily act in accordance with the President's interests (recall that prior to the development of the party system, the Vice President was merely the runner-up in the presidential election and oftentimes the chief opponent of the President). Only once in our nation's history, to my knowledge, has a Vice President cast a tie-breaking vote on a presidential appointment. In 1832, President Andrew Jackson nominated Senator Martin Van Buren as ambassador to Great Britain. The Senate split evenly, and Vice President Calhoun broke the tie by voting against President Jackson's nomination. ... Vice President Calhoun's negative vote was unnecessary of course, as a tie vote is widely considered to be defeated, though some accounts treat his vote as the “deciding vote.”

I disagree for multiple reasons.  First, the theory preventing the Vice President from breaking a tie on the Senate's selection of a Vice President is not that the tie-breaking power is limited to Article I.  Rather, it's that the text of the Twelfth Amendment specifically rejects the power in that situation (as Kesavan argues). But the Twelfth Amendment language is different from the appointments clause.  Second, the only non-textual support he gives for excluding the tie-breaking power from appointments votes is the quote from Hamilton.  But that quote is unpersuasive for the reasons discussed I discussed in previous posts.  And Kesavan himself anticipates a key objection: Hamilton didn't mention the tie-breaking power because he was talking in Federalist 69 about the President's power, not the Vice President's power.  As Kesavan says, "perhaps he [Hamilton] thought the Vice President would not necessarily act in accordance with the President's interests" -- I'm sure that's what Hamilton thought, no "perhaps" about it.  Under the original design and prior to the party system, the Vice President would most likely be a rival of the President, not an ally.

In any event, it's an interesting and thoughtful paper, even if I don't agree with some of it, and impressively relevant today for something written 20 years ago.

SETH BARRETT TILLMAN comments:

You wrote: "As Kesavan says, "perhaps he [Hamilton] thought the Vice President would not necessarily act in accordance with the President's interests" -- I'm sure that's what Hamilton thought, no 'perhaps' about it."

You might be correct, but you should not be "sure." We don't know what Hamilton thought. He is not here to ask for clarification, nor did he clarify his views in his subsequent writings. We can only make reasonable inferences. One possible inference is that he simply erred. That's my view. See Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. Va. L. Rev. 601 (2003), pages 612-13. We all make mistakes: so could and did Hamilton from time to time. 

Chad Squitieri: Towards Nondelegation DoctrinesMichael Ramsey

Recently published: Chad Squitieri (independent), Towards Nondelegation Doctrines (86 Missouri L. Rev. (2022)).  Here is the abstract: 

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each corresponding to one of Congress’ distinct powers. Adopting such an approach can lessen the risk that reviving the nondelegation principle – a task the current Supreme Court has expressed an interest in taking on – will result in a complete reworking of the modern administrative state.

And from the introduction (footnotes omitted):

In this Article, I offer a two-part proposal. First, the single nondelegation doctrine should be replaced with a series of nondelegation doctrines, each applying to a different congressional power. Second, each nondelegation doctrine should be developed by interpreting specific constitutional provisions to mean what the public originally understood them to mean at the time the provisions were enacted.

To be sure, one need not adopt the second part of my proposal to adopt the first. Those who object to interpreting text pursuant to its original public meaning, and those who prefer other nondelegation tests – such as the intelligible principle or important subjects tests – can accept the first part of my proposal alone. Put differently, one might be convinced of the benefits of transforming a single doctrine into multiple doctrines, but decide to develop those multiple doctrines by using different interpretive methods—such as a law and economics method, or a method of interpretation pursuant to which text is better able to take on new meaning over time. Those alternative methods could vastly improve the current nondelegation doctrine. But in this Article, I use a historical based approach to develop multiple doctrines—in part because that approach might be attractive to the current Supreme Court (which seems poised to revive the nondelegation principle in potentially problematic ways), and in part because recent nondelegation scholarship has exhibited a focus on historical evidence.

Fully developing nondelegation doctrines for each of Congress’ powers will require more historical research than can be offered here. Entire articles can (and should) be dedicated to determining the original public meaning of each power. I invite such scholarship by introducing and defending the idea that the original public meaning of each of Congress’ powers speaks not only to the subjects Congress can address (e.g., what is “commerce” and “war”), but also to the extent Congress can delegate its authority to address those subjects (e.g., who can “regulate” commerce or “declare” war).

Rather than review all delegations under a single nondelegation doctrine, different delegations should be reviewed under different nondelegation doctrines. And the relevant doctrines should not be derived from judicial dicta or the latest political science literature. Instead, the doctrines should be derived from the Constitution’s text and history. Thus, when it comes to the “legislative powers” vested in Congress by Article I, Section 8, the relevant nondelegation question concerns whether a particular delegation would have been considered a “necessary and proper” means “for carrying [the relevant Article I, Section 8 power] into execution,” as understood by the objective reader in 1788. By comparison, when it comes to the power vested in Congress by the Fifteenth Amendment, the relevant nondelegation question includes a consideration as to whether an objective reader in 1870 would have understood a particular delegation to have been an “appropriate” way for Congress to “enforce” the Fifteenth Amendment’s voting rights.

Parts II.A and II.B will discuss the current state of the nondelegation doctrine by briefly describing the intelligible principle test and its failure to produce a judicially manageable standard. Part II.C will then situate this Article within an active scholarly debate discussing the existence (or nonexistence) of the nondelegation doctrine at the time of the Founding. That debate has helpfully uncovered important evidence exhibiting narrow (and broad) delegations made by early Congresses. This evidence is helpful, but its limits must be recognized: the evidence only speaks to particular delegations of particular powers. By attempting to leverage power-specific evidence into larger arguments in favor of the existence (or nonexistence) of a single nondelegation doctrine, scholars on both sides of the present debate go too far.

In response to the present debate, Part III proposes the development of multiple nondelegation doctrines. These text-centric doctrines require a closer parsing of the relevant text and history than has been called for in present literature. In proposing nondelegation doctrines, Part III provides textual analyses of Congress’ original legislative powers, other powers vested in Congress by the Constitution as originally ratified, and additional powers vested in Congress by constitutional amendments. Each of those powers requires the application of a different nondelegation doctrine.

Finally, Part IV provides three defenses of nondelegation doctrines...