09/21/2020

Legal Theory Lexicon on Communicative Content and Legal Content
Michael Ramsey

Larry Solum's Legal Theory Lexicon has an updated entry for Communicative Content and Legal Content.  From the introduction: 

One of the most basic ideas in legal theory is the distinction between "communicative content" and "legal content."  That sounds fancy, but this fundamental idea is very simple.  Legal texts of all kinds communicate; they say things.  Roughly, what they say is their linguistic meaning--the meaning of the words and phrases in context.  Some legal texts, those that are valid, create legal norms.  Other legal texts, those that are invalid or no longer in effect, do not create any legal content at all or, if they once created legal content, they no longer do so.  The Confederate Constitution has communicative content.  We can read it and discern its meaning, but that document no longer generates legal content.  There are no currently valid propositions of law that are derived from the Confederate Constitution.  The legal content of documents like the Confederate Constitution is not the same as their communicative content.  This example illustrates the possibility of divergence between linguistic meaning and legal meaning.

And from later on:

Some Implications for the Debates Between Formalists and Realists

One of the important ways to use the distinction between communicative content and legal content arises in connection with the debate between formalists and realists about the interpretation of constitutions, statutes, and other legal texts.  Formalists maintain that the legal content associated with a text should be constrained by the communicative content conveyed by the text, whereas legal realists frequently argue that legal content should not be so constrained.  For example, constitutional originalists maintain that when courts engage in the construction of legal doctrines, they should consider themselves bound by the original public meaning (communicative content) of the text, whereas nonoriginalist living constitutionalists argue that the legal content of constitutional doctrines can modify, override, or even nullify the original public meaning.  Similarly, plain meaning textualists argue that courts engaged in statutory construction should consider themselves bound by the communicative content of the statutory text, whereas the more realist purposivists believe that courts may override the plain meaning of the text in order to serve the purpose or function that an ideally reasonable legislature would have had in enacting the text.

09/20/2020

Kurt Lash on Thomas Jefferson
Michael Ramsey

At Law & Liberty, Kurt Lash: “Contextualizing” Jefferson.  From the introduction: 

The University of Virginia Board of Visitors has decided to add “context” to the statue of Thomas Jefferson near the University Rotunda. Their decision comes on the heels of a similar decision by a Washington D.C. task force to “remove, relocate or contextualize” the Jefferson Memorial in the nation’s capital. Removal and relocation of the Jefferson Memorial are unlikely. But if D.C. officials follow the approach of UVA’s Board of Visitors and attempt to “contextualize” Thomas Jefferson, they should do so in a manner emphasizing Jefferson’s outsized role in ending the institution of chattel slavery.

American slavery was not ended simply by force of arms. Slavery was abolished by way of debate, the exchange of ideas, and a vote by the people of the United States to adopt a Thirteenth Amendment to the Constitution. In that debate, no one’s words and ideas were more important than Thomas Jefferson’s.

Jefferson drafted the Declaration of Independence and the single most important paragraph on freedom in American history. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

These words, radical in their time, embrace every member of the human family. They are as true as the morning sun, and yet have never been so stunningly and incontrovertibly declared as by the young Thomas Jefferson at the threshold of the American Revolution.

And from later on:

The language of the Thirteenth Amendment was copied from the 1787 Northwest Ordinance which declared “[t]here shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes, whereof the party shall have been duly convicted.” When Democrats tried to argue that the United States was founded on slavery and white supremacy, Republicans simply pointed to the language of the Northwest Ordinance as proof that the country embraced abolition even before it embraced the Constitution. Even if the Constitution allowed individual southern states to institute slavery, one of the foundational laws of the American people embraced abolition. The Thirteenth Amendment was not a repudiation of the original Founding, but instead represented the fulfillment of America’s founding creed.

And, it just so happens, the language of the Northwest Ordinance came from the same pen that authored the Declaration of Independence—Thomas Jefferson. The words that inspired the abolitionist movement and the words that constitutionalized abolition both came from the extraordinary mind at Monticello.

09/19/2020

A Privileges or Immunities Case for the Supreme Court?
Michael Ramsey

Via the Institute for Justice, Courtney v. Danner is a rare case raising a substantial claim under the modern version of the Fourteenth Amendment's privileges or immunities clause.  As the IJ explains:

Jim and Cliff Courtney have spent 23 years trying to travel 55 miles by boat—and they have yet to reach their destination. With the petition they filed yesterday asking the U.S. Supreme Court to review their case, the brothers hope their next stop will be before the nation’s High Court.

Since 1997, the brothers from Washington state have been fighting for their right to use the nation’s waters in pursuit of a livelihood. But rather than allow Jim and Cliff to pursue a living on the 55-mile-long Lake Chelan in the northern Cascades, the State of Washington has instead used a century-old public ferry licensing law to prevent them from even shuttling customers of their family’s own businesses at the far end of the lake. The Courtneys challenged the state’s bar on their use of Lake Chelan, and after nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals dismissed their case. But now the Courtneys are teaming with the Institute for Justice to ask the U.S. Supreme Court to review that decision.

Jim and Cliff’s case hinges on the interpretation of a constitutional provision and a landmark precedent that are well-known to constitutional scholars: the Privileges or Immunities Clause of the Constitution’s 14th Amendment and the Slaughter-House Cases, an 1873 decision in which the U.S. Supreme Court upheld the power of states to create monopolies in certain industries. But, interestingly, in that case, the justices held that among the rights (known then as “privileges or immunities”) that states have to respect is the “right to use the navigable waters of the United States”—the very right at the heart of Jim and Cliff’s case and their private boat service.

According to the State of Washington and the 9th Circuit, however, that right is essentially meaningless. ...

From the petition:

The Ninth Circuit ... constru[ed] the right to use the navigable waters ... only [to] encompass[ ] uses that “involve interstate or foreign commerce,” ... and Washington’s ban on “intrastate boat transportation” therefore “does not affect the Courtneys’ privileges or immunities as citizens of the United States.” In so holding, the Ninth Circuit reduced a distinct right derived from national citizenship to a mere redundancy of the right to engage in interstate or foreign commerce.

And  further:

[T]he Ninth Circuit concluded that the Clause generally bars claims against one’s own State—a conclusion that resulted from its conflation of the Privileges or Immunities Clause of the Fourteenth Amendment with the Privileges and Immunities Clause of Article IV, section 2. The latter clause is limited to protecting out-of-state residents. As Slaughter House held, it does not control “the power of the State governments over the rights of its own citizens.” Slaughter-House, 83 U.S. (16 Wall.) at 77; ... But the Ninth Circuit cited this passage from Slaughter-House for the proposition that the Fourteenth Amendment’s Privileges or Immunities Clause “in general bar[s] . . . claims against the power of the State governments over the rights of [their] own citizens.” ...  In so doing, the Ninth Circuit relied on its prior decision in Merrifield, where it enshrined this mistake in the court’s published precedent. This is the constitutional equivalent of mixing apples and oranges—a mistake surprisingly common...

I'm not entirely sure that the right to use intra-state navigable waters is a privilege or immunity of U.S. citizenship -- but the clause has to have meant something, and that's one of the few things the Court has actually said it meant.  So it's rather embarrassing if even that right turns out to mean nothing. It would be great if this case inspired some originalist rethinking of the clause.

Also I think the petition is right that the Ninth Circuit seriously misread both Slaughter-House and the privileges or immunities clause.  The Article IV privileges and immunities clause doesn't allow claims against one's home state (it's an anti-discrimination rule).  But the privileges or immunities clause surely does, as to the rights it protects (the difficult question is which rights it protects).  That's exactly how Slaughter-House described the two clauses; it just read the Amendment's protected rights very narrowly (83 U.S. at 77-79).  If the Amendment protects rights derived from national citizenship, of course those rights apply to both in-state and out-of-state claimants.  It makes no sense to say, in Courtney for example, that out-of-state claimants might have a right to use Lake Chelan as a privilege of U.S. citizenship but in-state residents do not. 

(Note: I blogged about an earlier version of this case here. Thanks to Michael Bindas of IJ for the pointer.) 

09/18/2020

Reviews of "The Essential Scalia"
Michael Ramsey

Law & Liberty has posted two reviews of The Essential Scalia (the new collection of Scalia's writings edited by Jeffrey Sutton and Whelan).

John McGinnis: Scalia’s Wisdom and Wit.  From the introduction:

The British have a saying that a great politician makes the weather. The rest must figure out how to deal with the new patterns of social disturbance that this statesman or stateswoman creates. Antonin Scalia was the justice who created the jurisprudential weather for our time. Judges and academics still react to his ideas.

Thus, it is a fitting tribute to the justice that The Essential Scalia: On the Constitution, the Courts, and the Rule of Law has been published four years after his death. As important as Supreme Court justices are when they render decisions, their essays and opinions are rarely worth studying as an oeuvre once they have departed. But The Essential Scalia is, indeed, still essential for anyone who studies law, as his ideas still drive the debate.

The editors, Jeffrey Sutton, a judge on the Sixth Circuit, and Edward Whelan, the President of the Ethics and Public Policy Center, wisely begin the collection with the justice’s essays on his great passions: the centrality of rules to the law, originalism, and textualism. The three ideas are interrelated. For Scalia, originalism and textualism both seek the public meaning of the words of an enactment—of the Constitution and of statutes respectively. Scalia also contends that originalism is justified normatively in large part because following original meaning generates rules that discipline interpreters and prevent them from exercising their personal discretion. As the title of the first essay in the collection shows, Scalia believes that the essence of the rule of law is that it is a law of rules.  

The editors then provide excerpts from many of Scalia’s greatest opinions and essays on more specific topics, allowing us to watch how his theory of law is translated into action. In his constitutional law dissents, Scalia consistently complains that the majority has not created a rule, making the foundation of government uncertain. For instance, in his celebrated dissent in Morrison v. Olson, he observed that the majority had deprived the president of uniform control over all executive branch subordinates. Yet it had failed to specify any clear test for determining how much of executive power Congress can make independent of the president, leaving it wholly uncertain just how many government officials the legislature could turn into free-floating bureaucrats.

Mark Pulliam: A Scalia Digest.  From the introduction:

Perhaps unfairly, most jurists are quickly forgotten when they leave the bench. Some are remembered only in infamy: the “Four Horsemen” who blocked the New Deal early on; Roger Taney for the Dred Scott decision; Harry Blackmun as the unlikely author of Roe v. Wade, and so forth. Justices with a literary flair tend to linger in the public mind, explaining the enduring influence of Oliver Wendell Holmes and Robert Jackson, among a handful of others.

History’s judgments can be fickle—even random. A single footnote (in Carolene Products) ensures Harlan Fisk Stone’s fame, a single dissent (in Plessy v. Ferguson) sanctifies John M. Harlan, and Potter Stewart’s jurisprudential legacy will likely be defined by a single phrase (“I know it when I see it”) from his concurring opinion in Jacobellis v. Ohio. Some justices are associated with scandal (e.g., Abe Fortas), and others are known mainly for their extrajudicial exploits (e.g., William O. Douglas). Most—like David Souter—simply disappear from public consciousness altogether.

A small number stand out as jurisprudential giants: John Marshall, William Brennan (although Earl Warren often gets the credit), and a debatable assortment of runners-up—Story, Field, Brandeis, Hughes, Frankfurter, Harlan II, Rehnquist, Thomas (con law scholars will argue vociferously about the rankings, but the list is short in any event). One thing is sure: Antonin Scalia is one of the greatest of all time, for all the right reasons. He will never be forgotten. A new book, The Essential Scalia, edited by a pair of former Scalia clerks (Sixth Circuit Judge Jeffrey Sutton and Ed Whelan), illustrates why.

Scalia’s judicial record, spanning 30 years on the Court, was massive, consisting of 870 opinions (281 majority opinions, 315 concurrences, and 274 dissents). In addition, he wrote important scholarly publications, in particular a 1989 article in the University of Chicago Law Review entitled “A Rule of Law as a Law of Rules” (delivered as the Oliver Wendell Holmes, Jr. Lecture at Harvard Law School) and the book A Matter of Interpretation in 1997. Moreover, until his untimely death in 2016, Scalia gave many speeches, to assorted audiences on a variety of subjects. In 2011, he even testified before the Senate, where he joked that his “pilgrimage” on the Court had started, referring to his unanimous (98-0) confirmation in 1986 as the first Italian-American justice.

In The Essential Scalia, Sutton and Whelan have done a yeoman’s job of culling the highlights from Scalia’s work and organizing them into themed categories. The topics include originalism, textualism, constitutional structure, and administrative law, and cover a diverse array of Supreme Court cases. Each chapter begins with a brief preface by the editors, providing relevant context, and each entry is introduced with a brief description of its source and background. Most impressively, in the interest of including a broad sample of Scalia’s writings without producing an unworkably-voluminous compilation, the editors were able to abridge them and streamline the text by eliminating most footnotes, case citations, ellipses, and similar matter.

 

09/17/2020

Randy Barnett on Stare Decisis and Originalism
Michael Ramsey

At Law & Liberty Forum, Randy Barnett: Stare Decisis for Originalist Judges.  From the conclusion:

Is there, then, any proper role for horizontal stare decisis at the Supreme Court? I think so. Supreme Court justices should give “weight” to previous opinions of the Court that a justice is satisfied utilized originalist reasoning in good faith. The reason for this is epistemic. Careful originalist research is often difficult and time-consuming. And we cannot be confident of the conclusions of originalist analysis until it is subjected to genuine peer review by other knowledgeable originalist scholars holding different views.

For this reason, originalism requires a division of labor between scholars who research original meaning in advance of a particular case or controversy and an originalist judge or justice who must decide many cases under the pressure of time. Once the Court has reached a conclusion on the basis of peer-tested originalist scholarship, therefore, there are good prudential reasons for other originalist justices to defer to that conclusion unless and until it is called into question by sufficiently persuasive competing originalist scholarship. And they might even impose some burden of proof on advocates claiming that a previous opinion grounded in good faith originalism was in error.

Because time is scarce, there is also a reason to adhere to nonoriginalist precedent in a case where that precedent leads to results that are consistent with original meaning—where adhering to originalism would not change the result. On the other hand, adopting originalism in such cases makes transitioning to a more consistently originalist jurisprudence less costly. Indeed, there are sound originalist justifications for much of modern constitutional doctrine, and it would bolster the case for originalism for this to be more widely known.

Where a big change in the doctrine is warranted, however, an originalist majority—should we ever get one—might “stay” their ruling to provide time to amend the Constitution the right way: through Article V. They might even urge (in dicta) that such an amendment should be enacted, while affirming their own powerlessness to amend the Constitution themselves. If a previous nonoriginalist precedent has truly become “grounded in deep-rooted traditions of law, politics, and culture,” an Article V amendment would likely be forthcoming. This used to be our practice. Reviving the culture of amending the Constitution via the states—rather than via a majority of the Supreme Court—would be healthy for our politics and our culture.

Professor Barnett's contribution is a comment on this essay by Marc DeGirolami; as noted, Ilan Wurman also had an essay in response.

09/16/2020

New Book: The Essential Scalia
Michael Ramsey

Just published: The Essential Scalia: On the Constitution, the Courts, and the Rule of Law (Jeffrey Sutton & Edward Whelan, eds.) (Crown Forum 2020). Here is the book description from Amazon:

Supreme Court Justice Antonin Scalia in his own words: the definitive collection of his opinions, speeches, and articles on the most essential and vexing legal questions, with an intimate foreword by Justice Elena Kagan

A justice on the United States Supreme Court for three decades, Antonin Scalia transformed the way that judges, lawyers, and citizens think about the law. The Essential Scalia presents Justice Scalia on his own terms, allowing readers to understand the reasoning and insights that made him one of the most consequential jurists in American history.

Known for his forceful intellect and remarkable wit, Scalia mastered the art of writing in a way that both educated and entertained. This comprehensive collection draws from the best of Scalia’s opinions, essays, speeches, and testimony to paint a complete and nuanced portrait of his jurisprudence. This compendium addresses the hot-button issues of the times, from abortion and the right to bear arms to marriage, free speech, religious liberty, and so much more. It also presents the justice’s wise insights on perennial debates over the structure of government created by our Constitution and the proper methods for interpreting our laws.

Brilliant and passionately argued, The Essential Scalia is an indispensable resource for anyone who wants to understand our Constitution, the American legal system, and one of our nation’s most influential and highly regarded jurists and thinkers.

(Via Ed Whelan at NRO Bench Memos, who has some excerpts from the book and from reviews).

09/15/2020

Evan Bernick: Antisubjugation and the Equal Protection of the Laws
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has  posted Antisubjugation and the Equal Protection of the Laws (55 pages) on SSRN.  Here is the abstract:

This Article challenges 150 years of conventional wisdom regarding whether the Fourteenth Amendment protects people against “private” violence and secures “positive” rights to governmental aid. The conventional wisdom is that it does neither; this Article argues that it does both. More specifically, it contends that (1) the original meaning of the Equal Protection Clause imposes an affirmative duty on states to protect the life, liberty, and property of all people; (2) the original function of the Clause was to prevent subjugation of people’s lives, bodies, and possessions by state and nonstate actors; and (3) the Supreme Court has since its 1883 decision in the Civil Rights Cases misinterpreted the letter and undermined the spirit of the Equal Protection Clause by denying (1) and neglecting (2).

Scholars have long criticized the Court’s reasoning in The Civil Rights Cases and more recent state-action and positive-rights decisions like DeShaney v. Winnebago County Department of Social Services and United States v. Morrison. But the leading alternative theories of the Equal Protection Clause either deny that the Fourteenth Amendment contains any state-action/no-positive-rights limitations or hold that equal protection of the laws entails only a narrow duty to protect people against violence. Against the former, I ground my constitutional objection to the state-action doctrine in the original meaning of the Equal Protection Clause. Against the latter, I claim that the affirmative duty to protect guarantees not only protection against violence but protection against other forms of subjugation—that is, subjection of the bodies and possessions of some to the untrammeled will of others. An arrestee may be subjugated through a physically coercive police interrogation; an evictee may be subjugated through a civil proceeding that deprives them of their home; a criminal defendant may be subjugated by being detained owing to failure to make bail.

Putting constitutional theory in conversation with ongoing social movements, I suggest that the “Civil Gideon” movement and the Movement for Black Lives might find constitutional resources in the letter and the spirit of the Equal Protection Clause. Finally, I propose that Congress is best-situated among federal institutional decisionmakers to thwart subjugation and that the Court’s lack of confidence in its own institutional competence ought no longer serve as an excuse for disabling Congress from enforcing the Equal Protection Clause.

09/14/2020

Josh Blackman on the MDLEA and the Foreign Commerce Clause
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Eleventh Circuit Panel finds that Maritime Drug Law Enforcement Act exceeds Congress's Powers under the Foreign Commerce Clause and the Necessary and Proper Clause Powers.  From the introduction:

In August, a panel of the Eleventh Circuit decided U.S. v. Davila-Mendoza. The case presented an as applied challenge to the Maritime Drug Law Enforcement Act. The MDLEA prohibits drug-trafficking in foreign waters. Judge Branch wrote the majority opinion, which was joined by Judge Jill Pryor (no relation to Chief Judge Bill Pryor) and Judge Danny Boggs (my former boss from the Sixth Circuit who was sitting by designation). The panel found that the MDLEA exceeded Congress's powers under the Foreign Commerce Clause and the Necessary and Proper Clause.

Here, the Court presumes the Lopez framework for the Interstate Commerce Clause extends to the Foreign Commerce Clause. The MDLEA could only be upheld under the so-called "substantial effects" test. (In fact, the "substantial effects" test is an application of Congress's Necessary and Proper Clause power, but Chief Justice Rehnquist elided this position.) The substantial effects test allows Congress to regulate intrastate economic activity that has a substantial effect on interstate commerce. But there is a problem for this case. Economic activity in foreign waters is not intrastate economic activity. Judge Branch shows a careful grasp of Raich:

Turning to Raich, the government argues that Raich reaffirmed that wholly intrastate economic activities could have a substantial effect on interstate commerce and could be regulated by Congress via the Interstate Commerce Clause. Therefore, according to the government, if we logically extend Raich to this case, the MDLEA's application to the defendants' extraterritorial conduct is a permissible exercise of Congress's authority under the Foreign Commerce Clause because Congress could rationally conclude that foreign drug trafficking could have a substantial effect on the international drug trade, which has an aggregate economic impact on foreign commerce. However, while Raich may serve as a backdrop for our analysis, Raich involved Congress's power to regulate commerce "among the states," which undoubtedly presents a different question than Congress's power to regulate commerce "with foreign nations," and, therefore, does not necessarily control our analysis. In other words, the Interstate Commerce Clause jurisprudence must be carefully adapted to fit the "commerce with foreign nations" context.

I'm sympathetic to the outcome, but I don't easily see how one gets there other than by thinking Raich was wrongly decided.  I wouldn't think that Congress' necessary-and-proper power with respect to the interstate commerce clause is broader than its necessary-and-proper power with respect to the foreign commerce clause.  If anything, one might think it would be narrower, because a broad reading of the interstate commerce power interferes with the federalism-based prerogatives of the states; a broad reading of the foreign commerce power may interfere with the  prerogatives of foreign nations, but that's not a matter of constitutional magnitude. 

Of course, the court of appeals can't say Raich was wrong, so maybe this is a way to set the case up for Supreme Court review (and maybe the current Court would think Raich was wrong, or at least too broad).

09/13/2020

Kent Barnett: How Chevron Deference Fits Into Article III
Michael Ramsey

Kent H. Barnett (University of Georgia School of Law) has posted How Chevron Deference Fits Into Article III (Geo. Wash. L. Rev.) (48 pages) on SSRN.  Here is the abstract: 

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference—under which courts defer to reasonable agency statutory interpretations—violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, “to say what the law is” or requires judges to forgo independent judgment by favoring the government’s position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This article does what these critics perhaps surprisingly do not do—situates challenges to Chevron within the broad landscape of the Court’s current Article III jurisprudence.

A thorough study of Article III jurisprudence hobbles these blunderbuss Article III challenges to Chevron but leaves room for narrow attacks. Derived from the plurality in Northern Pipeline v. Marathon Pipe Line Co., a four-quadrant matrix informs Congress’s power to limit Article III adjudication or review. The quadrants concern public and private rights, each subdivided by claims Congress created and did not create. Chevron does not apply to the most contentious and perhaps most unsettled quadrant (private rights that Congress did not create), and it mostly applies in the quadrant in which Congress almost certainly can limit de novo judicial review (public rights that Congress creates). That leaves two other quadrants—public rights that Congress did not create (including, for traditional reasons, criminal law) and congressionally created private rights—where Chevron sometimes applies. Chevron’s application in these latter two quadrants should give pause because the Court has more jealously guarded Article III adjudication there from congressional interference than with public rights that Congress created. Yet even within these two quadrants, other strands of Article III doctrine suggest that Congress has some space to limit de novo judicial review. By considering the full Article III landscape, this article demonstrates the folly of a wholesale attack on Chevron and its destabilizing effects. Its critics should instead focus their efforts on discrete skirmishes within the two quadrants where Article III has neither its highest nor lowest bastions.

Via Larry Solum at Legal Theory Blog, who comments:

Recommended.  This is yet another topic, where the interpretation-construction distinction can help to clear up a good deal of conceptual confusion. See Chevron as Construction (co-authored with Sunstein).  There is much to admire in this article, but it seems likely that originalists would welcome the destabilization of Article III doctrine that is inconsistent with the original public meaning of the constitutional text.

Yep.

09/12/2020

John McGinnis on Originalism and Constitutionalism (with a Response from Eric Segall)
Michael Ramsey

At Law & Liberty, John McGinnis: Can Modern Originalism Save American Constitutionalism?  From the introduction:

The politics of the modern West has been created by two very different revolutions—the American and the French. One of the important differences between the two is their conflicting concepts of a constitution. In his last book, Conservatism: An Invitation to the Great Tradition, the late great philosopher Sir Roger Scruton observed that the American Constitution, in its model for both structure and rights, “was designed to guarantee to the people what they had once enjoyed. It was the recipe for an already established practice rather than a recipe for a new order of things.” Scruton noted, for instance, that the rights provided in the American Constitution had been previously defined at common law. In contrast, the French Declaration of Rights was a product of philosophical reflection, an attempt “to transcribe into politics ideas that had previously no overt presence there and which owed . . . much to the abstract arguments of philosophers.”

The struggle over the interpretation of the United States Constitution is profitably understood as a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights.

And in conclusion:

The fundamental conflict between the traditions of constitutionalism that Scruton describes has never been more relevant than now, when a new band of anti-liberal philosophes is threatening to dominate our intellectual life. The new ideology on campus, sometimes called the Successor Ideology, is self-consciously post-liberal. It wants to replace the market meritocracy enabled by our amended Constitution of limited government and individual rights with an anti-capitalist identity politics. This social movement is not going to stay on campus but will soon be pushing for its ideas to be impressed in constitutional law. Interpreting the Constitution as a set of abstractions, as did the French revolutionaries and their American living constitutionalist successors, opens a channel for infusing this new ideology into our venerable charter of government. In contrast, originalism correctly conceived anchors the tradition of constitutionalism and provides the most effective protection against this latest enthusiasm of the intellectual class.  

At Dorf on Law, Eric Segall responds: Originalism Without Slavery and Sexism is a Dangerous Fiction and Other Absurdities: A Response to Professor McGinnis.  In part:

[A]nyone defending the American Constitution as "a recipe for an already established practice" needs to address the evils of slavery, complete subjugation of women, and the limited franchise at the time our Constitution was ratified. As usual, however, and like most originalists, new, old, and in-between, there is no mention of those pernicious practices in McGinnis's post. More on that failing later.

After comparing the [American and French] revolutions, McGinnis says the following:

The struggle over the interpretation of the United States Constitution is profitably understood as a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights.

What does it even mean to suggest that textually imprecise provisions in the Constitution such as those prohibiting the government from abridging freedom of speech, denying anyone due process of law, imposing cruel and unusual punishments, forbidding unreasonable searches and seizures, and establishments of religion have a "fixed meaning?" This is simply incoherent when it comes to real cases in front of real judges. What implications does the internet have for personal jurisdiction? Are lethal injections cruel and unusual punishments? Which modern technologies constitute unreasonable searches? And is paying union dues "speech"? These are all questions that cannot be answered by reference to the Constitution's "fixed meaning" because of course none of the relevant constitutional provisions has a fixed meaning, and the founding fathers were well aware of that fact.

And in conclusion:

I am not here to praise or damn the French Revolution and, frankly, McGinnis should also stay away from that business. I am here to say that originalists often overlook or minimize how terrible America in 1789 and 1868 was for people of color and women, and they should be careful about describing those eras of American history with such admiration. Additionally, as I have written many times before, originalism is not the tool to limit judicial discretion given the imprecise nature of the litigated Constitution. The only tool that can meaningfully constrain judges is strong deference to other political actors--a tool modern originalists (as oxymoronic as that is) fail to wield as often as non-originalists. McGinnis's descriptions of the divides between so-called originalists and so-called living constitutionalists are as unpersuasive as his over-romanticizing of our founding period is deeply troubling.

09/11/2020

Larry Solum on Living Constitutionalism
Michael Ramsey

At Legal Theory Blog, Larry  Solum has an updated entry in his Legal Theory Lexicon: Living Constitutionalism.  From the introduction:

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historic rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism.

On "Living Constitutionalism versus Originalism":

Like other theoretical terms, "living constitutionalism" and "originalism" have meanings that are disputed.  This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, where as other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism.  The most prominent example of compatibilism is Jack Balkin's theory, which he explicated and defended in his book, Living Originalism.

...

..."[L]iving originalism" is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine.  Such underdetermination may occur if the constitution contains provisions that are vague or open textured.  Such provisions could be said to create "construction zones," areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules.  Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.

Many participants in debates about living constitutionalism and originalism seem to reject the idea of compatibilism.  One reason for such rejection may a dispute over the definitions of the terms "living constitutionalism" and "originalism" could be defined as mutually exclusive positions.  This way of carving up the conceptual space has the advantage that it puts the two views in opposition to each other.  To the extent that the definitions are contested, the result would be "metalinguistic negotiation," which is discussed in another Legal Theory Lexicon entry.

And, most helpfully:

Given the highly abstract definition of "living constitutionalism," is should not be surprising that there are many different versions.  Living constitutionalism is best viewed as a family of theories.  A full survey of the members of the family is too much for a Lexicon entry, but here are some of the most important members ...

09/10/2020

Ilan Wurman on Originalism and Precedent
Michael Ramsey

At Law & Liberty Forum, Ilan Wurman (Arizona State): Stare Decisis in an Originalist Theory of Law (responding to this essay by Marc DeGirolami).  From the introduction: 

There is much to admire in Marc DeGirolami’s excellent and thought-provoking essay on bridging the gap between originalism and stare decisis. I’m not sure I disagree with his analysis. But, I think, that analysis would benefit from three refinements or clarifications, with which we can better understand why the Founding generation expected judges to be both originalist and bound by precedent.

First, we ought to be clear that there are at least two different kinds of precedent. There are those precedents that resolve a question within the range of permissible textual interpretations. That was the kind of precedent to which Justice Clarence Thomas was referring in his opinion in Gamble; to which Alexander Hamilton was likely referring in his discussion in Federalist 78; and which originalists argue is consistent with Article III of the Constitution. One can be an originalist but also accept that the original meaning is sometimes open to competing plausible interpretations. What is a judge—or legislator, or executive—to do? When the question is first decided, it will not be decided on the basis of “precedent,” but rather on what these first deciders think is the best answer. Subsequent decisionmakers can then rely on that initial decision or disagree with it. At some point in time, however, future decisionmakers will consider the answer to the question “liquidated” or “settled” if enough earlier decisionmakers landed on a similar answer. This seems to have been James Madison’s view when he refused to veto the Second Bank of the United States, even though he had initially opposed the first bank on constitutional grounds.

This version of precedent explains why the Founders could be originalist while also accepting precedent. ...

So whence comes the need to bridge the gap between originalism and stare decisis in modern-day cases? The question arises only because at some point in time, the Supreme Court abandoned originalism, and prior originalist precedents, and came up with new law altogether. When precisely this happened is beside the point; it surely happened at different times for different doctrines. The point is, once the Supreme Court decided to change the law, the Supreme Court began to reaffirm its changes. These new legal decisions were now “precedents,” but they were unlike the older precedents in that they were outside the bounds of permissible textual interpretation.

Is this kind of new “precedent” the kind worth adhering to?

And in conclusion:

To summarize, any theory of precedent must recognize, as does Professor DeGirolami’s, that stare decisis is valuable “because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome.” But this requires a chain of decisions over time, and not a single Supreme Court decision; recognition that ultimately these decisions over time matter only because the numerous individuals at different times and places that have agreed are more likely to have agreed on the correct answer; and that the correct answer must be within the range of possible original meanings. Only by understanding these points can we see how it was possible for the Founders themselves to think that judges would be both originalist and bound by precedent.

09/09/2020

Yasmin Dawood: Election Law Originalism
Michael Ramsey

Yasmin Dawood (University of Toronto - Faculty of Law) has posted Election Law Originalism: The Supreme Court's Elitist Theory of Democracy (64 St. Louis University Law Journal 609-633 (2020)) (27 pages) on SSRN.  Here is the abstract:

The standard topics of election law — such as campaign finance, electoral redistricting, and voter qualification laws — are facing a deeply uncertain future in large part due to the U.S. Supreme Court’s recent decisions. To consider the larger conceptual issues at stake in these decisions, this Essay addresses two inter-related questions. First: How should we conceptualize the role of the Supreme Court as an institution in these decisions? Second: What is the underlying conception of democracy that best elucidates the Court’s major election law decisions in the last decade or so?

This Essay argues that the Supreme Court’s role in recent election law decisions cannot be easily reduced to a single or consistent approach. Instead, I claim that the Court majority’s opinions, when viewed from an external perspective, display a particular vision of democracy that is fundamentally elitist in its outlook. This elitist vision of democracy stands in marked contrast to the egalitarian vision of democracy that is evident in the dissenting opinions of the four liberal justices. I suggest further that this elitist conception of democracy is a familiar one — it has certain continuities (and discontinuities) with theories of republicanism that existed at the time of the Founding.

Given the echo of founding era themes, this Essay considers the role of originalism in current election law decisions. It concludes that neither the Court’s decisions, nor the emerging elitist conception of democracy, fall within originalism strictly understood. That being said, the Essay suggests that some of the Court majority’s arguments display an “originalist orientation” in which original meaning takes a preponderant weight in the analysis even if it does not compel the overall outcome. In practical terms, this originalist orientation has significant implications for future election law cases because it means that, at least for some issues, the founding era is serving as an implicit baseline for the conservative wing of the Court. The Essay identifies three ways in which the Court majority’s originalist orientation matters: first, non-originalist precedents would likely carry less precedential weight; second, election law federalism would likely be interpreted in a manner hostile to egalitarian ideals; and third, electoral reform efforts could be thwarted. In future cases, this originalist orientation will likely reinforce the elitist conception of democracy and further erode the egalitarian approach to democracy.

Without necessarily endorsing the paper's substantive conclusions, I very much endorse its idea of "originalist orientation" (contrasted with "originalism strictly understood") as a description of the thinking of some of the key Justices.

09/08/2020

Laurence Claus: Separation, Enumeration, and the Implied Bill of Rights
Michael Ramsey

Laurence Claus (University of San Diego School of Law) has posted Separation, Enumeration, and the Implied Bill of Rights (Journal of Law and Politics, forthcoming) (35 pages) on SSRN.  Here is the abstract:

The United States Constitution sets forth two strategies for distributing power within the system of government that it establishes. To distribute power horizontally within the national government, the Constitution seeks to separate power by kind – legislative, executive, and judicial. To distribute power vertically between the national and state governments, the Constitution seeks to enumerate power by subject.

Neither strategy works. Separation by kind fails because governing actions are not of single kinds. Governing in all three branches necessarily involves both lawmaking and law executing. Enumeration by subject fails because governing actions are not about single subjects. Governing actions can readily be characterized in more than one way, as about more than one subject. Consequently, those who must decide disputes about the distribution of power are obliged to create a law of institutional competence and a law of constitutional characterization with far less guidance from the Constitution than it purports to give them.

How did these two unachievable strategies come to be adopted? What should guide courts in creating a law of institutional competence and a law of constitutional characterization to settle the actual horizontal and vertical distribution of power? Examining these questions illuminates a clearer path for courts to expound the Constitution’s meaning in ways that expand its protections. Deciding the distribution of power lets courts create an implied bill of rights.

09/05/2020

Caniglia v. Strom: Possible Case of Originalist Interest for the Next Supreme Court Term
Michael Ramsey

Via SCOTUSblog, a petition file recently in Caniglia v. Strom asks "Whether the 'community caretaking' exception to the Fourth Amendment’s warrant requirement extends to the home."  Originalist answer: I bet it doesn't, and indeed I bet the entire 'community caretaking' exception is something the Court made up in its more freewheeling days.  As SCOTUSblog summarizes:

[O]fficers questioned Edward Caniglia at his home after his wife expressed concern that he might be suicidal. They took him to a hospital and then entered the home and removed two handguns. The officers’ justification for the entry and seizures was the “community caretaking” exception to the Fourth Amendment’s warrant requirement. The Supreme Court’s first case recognizing that exception, Cady v. Dombrowski, involved officers searching the trunk of a car towed after an accident. Since then the federal courts of appeals have divided on whether the exception applies to the home or only to motor vehicles. Caniglia filed a cert petition, asking the Supreme Court to resolve this split and hold that the exception cannot justify warrantless intrusions inside a home.

From the petition

In Cady v. Dombrowski, 413 U.S. 433 (1973), this Court held that police officers did not violate the Fourth Amendment when they searched the trunk of a car that had been towed after an accident. The Court acknowledged that, “except in certain carefully defined classes of cases,” police cannot search private property without consent or a warrant. Id. at 439. It emphasized, however, that “there is a constitutional difference between houses and cars.” Id. (quoting Chambers v. Maroney, 399 U.S. 42, 52 (1970)). “[P]olice officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441. The Court thus held that a “caretaking ‘search’ conducted . . . of a vehicle that was neither in the custody nor on the premises of its owner . . . was not unreasonable solely because a warrant had not been obtained.” Id. at 447–48.

Cady drew on a line of cases “treating automobiles differently from houses” for purposes of the Fourth Amendment. Id. at 441; see also id. at 439–47 (discussing other automobile cases). And the Court limited Cady’s rule to vehicle searches. ...

In the decades since Cady, however, the so-called “community caretaking” exception has taken on a life of its own. Courts across the country are deeply divided about whether the “community caretaking” exception can justify a warrantless intrusion into a home. There is at least a four-to-three split on that question among the federal Courts of Appeals. State courts are similarly divided. Courts have acknowledged the split repeatedly, as did the Defendants in their briefing below. ...

(Petition filed on behalf of Mr. Caniglia by former Scalia clerk Shay Dvoretzky.)

The courts have a sorry history of (a) saying the Fourth Amendment doesn't apply as strictly to cars because, well, cars are different somehow (never mind that there were personal vehicles at the time of enactment, albeit without engines, and cars are obviously "effects" protected by the Amendment), and then (b) letting whatever exception is made up for cars extend to other situations in ways that obviously wouldn't have been accepted in the founding era.  Fortunately the Supreme Court has been cutting back on this practice, and Caniglia may be an opportunity to make some more progress in that direction.

09/04/2020

John McGinnis on the Unitary Executive
Michael Ramsey

At Law & Liberty, John O. McGinnis: The Pragmatic Case for a Unitary Executive.  From the introduction:

The theory of the unitary executive is gaining traction in American law. That view of the Constitution asserts that the president controls whatever power is given to the executive branch of the federal government. As a result, the president must be able to dismiss his subordinate executives at will. Otherwise, these officials will be responsive to others or to themselves, not to the chief executive.

The unitary executive is persistently, sometimes willfully, confused with the notion that the president enjoys large residual constitutional powers. But the scope of presidential powers is distinct from the control over whatever those powers are. As Justice Samuel Alito said at his confirmation hearing, the first question “is the scope of Executive power: [W]e might think of that as how big is this table, the extent of the Executive powers.” That was distinct from a different question, “[W]hen you have a power that is within the prerogative of the Executive, who controls [it]?” The unitary executive is concerned only with the second question.

A majority of the Supreme Court justices now accept the essence of the originalist case for the unitary executive. This term in Seila Law v. Consumer Financial Protection Bureau, the Court held that insulating the director of the CFPB from presidential removal was unconstitutional because it offended the separation of powers, saying bluntly, “The President’s Executive Power generally includes the power to supervise—and if necessary remove—those who exercise the President’s power on his behalf.” While the Court did not overrule previous cases that had upheld statutory insulations of executive officials from presidential removal, it narrowly confined their ambit, raising questions about whether they might be overruled in the future.

The originalist case for the unitary executive was powerfully made in Seila and in the academic work of my colleague, Steven Calabresi. But there is also a more pragmatic case for the unitary executive that should help persuade the non-originalist justices who were in dissent in Seila. First, in the modern world, almost all matters in which the federal government is involved have foreign policy implications. For instance, the greatest threat to the United States is the continuing rise of Communist China. To counter this threat, the United States must muster all its military, economic, and technological might. Such a total commitment involves the work of essentially all agencies of government. And it is the president who must be responsible for the executive’s foreign policy decisions because he alone has a broader perspective and intelligence tools available to protect the nation and navigate international relationships.

09/03/2020

New Book from Jack Balkin: "The Cycles of Constitutional Time"
Michael Ramsey

Recently published, by Jack Balkin: The Cycles of Constitutional Time (Oxford Univ. Press 2020).  Here is the book description from Amazon:

What will happen to American democracy? The nation's past holds vital clues for understanding where we are now and where we are headed. In The Cycles of Constitutional Time, the eminent constitutional theorist Jack Balkin explains how America's constitutional system changes through the interplay among three cycles: the rise and fall of dominant political parties, the waxing and waning of political polarization, and alternating episodes of constitutional decay and constitutional renewal. If America's politics seems especially fraught today, it is because we are nearing the end of the Republican Party's political dominance, at the height of a long cycle of political polarization, and suffering from an advanced case of what he calls "constitutional rot." In fact, when people talk about constitutional crisis, Balkin explains, they are usually describing constitutional rot--the historical process through which republics become less representative and less devoted to the common good. Brought on by increasing economic inequality and loss of trust, constitutional rot threatens our constitutional system.

But Balkin offers a message of hope: We have been through these cycles before, and we will get through them again. He describes what our politics will look like as polarization lessens and constitutional rot recedes. Balkin also explains how the cycles of constitutional time shape the work of the federal courts and theories about constitutional interpretation. He shows how the political parties have switched sides on judicial review not once but twice in the twentieth century, and what struggles over judicial review will look like in the coming decades. Drawing on literatures from history, law, and political science, this is a fascinating ride through American history with important lessons for the present and the future.

(Via Balkinization, where Professor Balkin has a more detailed chapter-by-chapter description of the book.)

09/02/2020

Marc DeGirolami on Originalism and Precedent
Michael Ramsey

At the Law & Liberty Forum, Marc DeGirolami: Integrating Originalism and Stare Decisis.  From the introduction: 

This essay ... diagnoses the problem stare decisis poses for originalism and surveys recent doctrine and scholarship on the subject. It concludes that if they wish to integrate originalism and stare decisis, originalists will have to confront the value of legal stability promoted by stare decisis more squarely. They will need to appreciate and incorporate the virtue of legal endurance—and constitutional law’s abiding traditionalism—into a theory of originalist judging.

...

What I will claim is the gap within originalism depends on what Professor Gary Lawson once called the distinction between interpretation (what words mean) and adjudication (how judges should decide cases). As a theory of interpretation, originalism is the view that the text of the Constitution means what it meant to the relevant public adopting it. As a theory of adjudication, originalism holds that judges should therefore decide cases by applying the text in accordance with the original public meaning.

But there is no necessary connection between these theories. I can know what the words on a shopping list mean and have good reasons to buy all, some, or none of the groceries on it. Likewise, a judge can know the original public meaning of the constitutional text and have good reasons to decide a case in full, partial, or no accord with that meaning. True, there are also descriptive and normative theories of originalism’s legal authority and political legitimacy. But these, too, do not speak directly to how judges should decide cases, or to the nature of judicial excellence in constitutional adjudication. Just as one can have a theory of the meaning of shopping lists, one can also have a theory of the authoritative shopping-list maker, or of the list’s legitimacy, and yet still decide, for excellent reasons, to depart from the list when actually shopping. Some further argument is needed for judges to decide cases in accord with original meaning—some connection between a theory of constitutional meaning and a theory of constitutional judging.

And in conclusion (with lots of insightful analysis in between):

[S]tare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.

Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.

09/01/2020

Christian Burset: Advisory Opinions and the Founders' Crisis of Legal Authority
Michael Ramsey

Christian R. Burset (Notre Dame Law School) has posted Advisory Opinions and the Founders' Crisis of Legal Authority (74 Vanderbilt Law Review, forthcoming 2021) (59 pages) on SSRN.  Here is the abstract:

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only in the United States, but also in England and British India—became opposed to advisory opinions in the second half of the eighteenth century. The death of advisory opinions was a global phenomenon, rooted in a crisis of common-law authority.

Early modern English judges had routinely advised the Crown. This advisory role was politically fraught but doctrinally unproblematic thanks to a jurisprudential orthodoxy that treated judges’ opinions as evidence of a preexisting common law. Although this declaratory theory survived into the nineteenth century (and beyond), it began to fragment after 1750, as lawyers began to disagree about the nature of precedent. Those disagreements generated new pressure to clarify the weight of different kinds of legal authority. Most lawyers intuited that advisory opinions were less authoritative than decisions arising from litigation. But because bench and bar lacked a common theory of legal authority, they were unable to articulate a shared understanding of what respect was due to judges’ extrajudicial pronouncements. As a result, advisory opinions became dangerous, because the judges who issued them could not control how future readers might treat them. In response, judges sought to limit their advisory activity—first in England, then in British-controlled Bengal, and finally in the United States, whose judges inherited Britain’s contested and dynamic understanding of judicial power.

08/31/2020

Harold J. Krent: Can President Trump Be Impeached As Mr. Trump?
Michael Ramsey

Harold J. Krent (Chicago-Kent College of Law) has posted Can President Trump Be Impeached As Mr. Trump? Exploring the Temporal Dimension of Impeachments [abstract only] (Chicago-Kent Law Review, Vol. 95, No. 3, 2020) on SSRN.  Here is the abstract:

Can Congress impeach and convict an officer such as President Trump after he has left office? Most academics considering the issue have concluded that the removal of an executive branch officer or judge from office does not defeat Congress’s jurisdiction to impeach and try the officer. They reason that, even when an officer is no longer in “office,” the House may still impeach and the Senate convict in order to disqualify the individual from serving in public office in the future. Members of Congress tried to galvanize support to impeach both President Clinton and President George W. Bush after they left office.

Although the constitutional language is far from clear, Parliament exercised a continuous power of impeachment prior to the Founding, and many of the newly independent states followed in that tradition. Moreover, on at least one occasion, the House and Senate debated the propriety of continuing the impeachment process after an officer was no longer in office and, in that case, the House impeached and the Senate voted to acquit, but by a slim margin. Nonetheless, I argue that Congress’s impeachment authority is best understood as a weapon of last resort to remove an officer from a position of public power, and that the concomitant power to disqualify an officer from future service does not transform the impeachment remedy into a potential Sword of Damocles hanging over the head of officers for the rest of their lives. Otherwise, the impeachment power would resemble a Bill of Attainder and could be used as a tool to punish opponents of a sitting Congress as well as disqualify leading opposition party candidates who previously had served in offices of public trust from participating in federal politics in the future.

An interesting question, but if the historical power of impeachment extended to former officers under the English system, I don't see why that scope wouldn't carry over to the constitutional power -- unless something in the text says otherwise, which it doesn't.  The Constitution's check on the impeachment power is that (Art. I, Sec. 3) it extends only to removal from office and disqualification from future office.  Art. II, Sec. 4 says that the President, Vice President and all civil officers who are impeached and convicted shall be removed from office, but it doesn't say who may be disqualified from future office.  So I wouldn't read it as limiting the impeachment power; rather, it confirms Art. I, Section 3's indication that the impeachment power encompasses removal from office (in particular, it confirms it as to the President, who absent Art. II, Sec. 4 might argue otherwise based on an analogy to the monarch, who obviously wasn't subject to removal).

08/30/2020

Eric Segall on Legal Realism in Constitutional Law
Michael Ramsey

The recent exchange on this blog between Eric Segall and Chris Green (here and here) focused on one part of Professor Segall's post (at Dorf on Law) on legal realism and constitutional interpretation: We are All Legal Realists Now.  Here is the introduction:

[Legal realism] is extremely important given the trope that has been circulating among scholars and even Supreme Court nominees that Elena Kagan said at her confirmation hearing, "we are all originalists." This statement was proudly repeated by Justice Kavanaugh at his confirmation hearing, and it has been thrown at me numerous times during my debates with originalists, who often add the word "now" to Kagan's quote.

This post argues that originalists employing Kagan's line to defend originalism ignore the context of her statement. I also suggest that "we are all legal realists now" presents a much more accurate understanding of constitutional interpretation as it is actually practiced by our judges than the slogan "we are all originalists now." This post is purely descriptive and leaves normative concerns for another day.

Here is Justice Kagan's full quote about originalism: "Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do. In that way, we are all originalists." I think what Kagan pretty obviously meant is that where the Constitution's text is precise and rule-like, judges follow it, but where the text is imprecise and is more principle-like, judges apply that principle with reference to a host of factors, including original meaning but not just original meaning. 

...

Where the text is unambiguous, we don't need fancy theories of interpretation to explain why judges usually follow it (in the rare cases implicating clear text). What makes constitutional law so hard is the great legion of cases when judges have to apply largely indeterminate text to new problems. We all agree that free speech is a worthy aspiration, as are other constitutional limitations on government behavior, such as that it should not deny people the equal protection of the laws or due process of law. Moreover, some originalists even think that the Ninth Amendment allows judges to find unenumerated rights. The hard part is how should judges go about those difficult tasks, and that is where legal realism comes in because few scholars or judges would say that resolving these kinds of cases simply involves reading text and history and mechanically applying those sources of law to new problems or changed circumstances. That process is not an easy one to describe but saying "we are all originalists" does not even come close. Legal realism comes much closer.

08/29/2020

John McGinnis Reviews Mark Tushnet's "Taking Back the Constitution"
Michael Ramsey

At Law & Liberty, John McGinnis: Mark Tushnet’s Anti-Constitutionalism (reviewing [harshly] Mark Tushnet,  Taking Back the Constitution: Activist Judges and the New Age of American Law (Yale Univ. Press 2020)).  From the introduction: 

Mark Tushnet, a Harvard law professor, is the nation’s most prominent leftist legal scholar. He was one of the founders of critical legal studies, which understands legal reasoning and doctrine as a mask for political preferences. Tushnet has said that, as a judge, he would decide cases to advance the cause of socialism. When he was confident that Hillary Clinton would win the presidency and that that there would be a fifth Democrat-appointed justice on the Supreme Court, he wrote an attention-grabbing blog post, “Abandoning Defensive Crouch Liberal Constitutionalism” in which, among many other striking claims, he said, “remember that doctrine is a way to empower our allies and weaken theirs.” He also expostulated about Anthony Kennedy in a manner that cannot be published at a family-friendly site.

Thus, it does not come as a shock that his new book Taking Back the Constitution: Activist Judges and the New Age of American Law offers ideas for progressives to ditch as much doctrine, convention, and even text as they can get away with to achieve their progressive goals. Nor is it astonishing that originalism is a primary target, because originalism is the antithesis of critical legal studies, asserting as it does that the Constitution’s meaning can be established by legal methods and is binding on us, whatever our political preferences.

But it does come as a bit of a surprise that Tushnet’s arguments against originalism are so weak and sometimes depend on assertions about scholarship and Court opinions that are either ill-informed or plainly wrong. Even outside of his attack on originalism, Tushnet has a tin ear for law, seemingly unable to distinguish between arguments that a conservative or progressive court could conceivably find plausible and those that would be outlandish to any judge that can be imagined. Finally, his praise of what he calls “popular constitutionalism” demolishes the distinction between constitutionalism and ordinary politics. In Tushnet’s world, constitutionalism is just a fancy name for arguments to put or maintain one’s preferred regime in power.

And here is Amazon's book description of Professor Tushnet's book:

How the Supreme Court’s move to the right has distorted both logic and the Constitution

What Supreme Court justices do is far more than just “calling balls and strikes.” The Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings. Social, moral, and yes, political ideas have always played into the justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved, from the liberalism of the New Deal and the Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore to the other branches of government a role in deciding constitutional questions.

08/28/2020

My Review of Martin Flaherty's "Restoring the Global Judiciary"
Michael Ramsey

I've posted on SSRN Courts and Foreign Affairs: "Their Historic Role" (35 Constitutional Commentary, forthcoming 2020) (31 pages), a (mostly favorable) review of Martin S. Flaherty's book Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs (Princeton Univ. Press 2019).  Here is the abstract: 

This essay reviews Professor Martin Flaherty’s outstanding and engaging recent book Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs. As the book’s title indicates, Professor Flaherty takes a predominantly originalist/traditionalist approach, arguing that the U.S. Constitution’s text and the Framers’ understanding of it contemplate an active checking and protective role for the courts—particularly in foreign affairs, because foreign affairs offers the greatest risk of abuse by the political branches. Moreover, the book argues, U.S. courts traditionally undertook that role through the late-eighteenth and nineteenth centuries, when courts routinely resolved foreign affairs disputes on the merits, often ruling against the executive branch. Only relatively recently, the account runs, have courts begun to use various gatekeeping doctrines to vindicate growing reluctance to interfere in foreign affairs controversies. The book’s call, then, is for courts to “reclaim their historic role.”

Restoring the Global Judiciary is a particular challenge to those who exalt text, history, and tradition to guide constitutional decision-making. The modern rise of originalism and related approaches has occurred alongside decisions signaling concern over judicial involvement in foreign affairs, and calls for reduced judicial involvement in foreign affairs are often linked with praise for originalist-oriented adjudication. Yet, if Professor Flaherty is right, originalism’s rise should enhance, not reduce, courts’ willingness to constrain the foreign affairs executive.

This Review argues that Professor Flaherty is partly right. In particular, he is right about his three central historical points: that the Constitution’s text and the Framers’ design placed the judiciary in a checking role expressly to protect the separation of powers and individual rights; that this general design extended to foreign affairs; and that courts did commonly decide foreign affairs-related cases in the post-ratification era. Restoring the Global Judiciary gives an insightful, balanced and persuasive account of this history. Yet this Review also argues that Restoring the Global Judiciary deemphasizes substantial historical checks on the judiciary’s role. The Constitution did not create the judiciary as a supervisory force above the other players in the constitutional system. Rather, the courts are actors within the system restrained by its explicit limits, by their assumed institutional role, and by judicial prudence about the role courts can constructively fill. Failing to embrace these limits leaves Restoring the Global Judiciary with a grander vision of the courts than text and history actually support.

And here is the book description from Amazon for Professor Flaherty's book:

Why there should be a larger role for the judiciary in American foreign relations

In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and the president. Challenging this idea, Restoring the Global Judiciary argues instead for a robust judicial role in the conduct of U.S. foreign policy. With an innovative combination of constitutional history, international relations theory, and legal doctrine, Martin Flaherty demonstrates that the Supreme Court and federal judiciary have the power and duty to apply the law without deference to the other branches.

Turning first to the founding of the nation, Flaherty shows that the Constitution’s original commitment to separation of powers was as strong in foreign as domestic matters, not least because the document shifted enormous authority to the new federal government. This initial conception eroded as the nation rose from fledgling state to superpower, fueling the growth of a dangerously formidable executive that today asserts near-plenary foreign affairs authority. Flaherty explores how modern international relations makes the commitment to balance among the branches of government all the more critical and he considers implications for modern controversies that the judiciary will continue to confront.

At a time when executive and legislative actions in the name of U.S. foreign policy are only increasing, Restoring the Global Judiciary makes the case for a zealous judicial defense of fundamental rights involving global affairs.

08/27/2020

A Response to Chris Green
Eric Segall

Chris Green writes: "No (first-order) originalist thinks that 'judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning.'"
 
 
“In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts."
 
 
“Nearly all originalists recognize, that [Originalism requires] updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”
 
And, Ilan Wurman from his book A Debt Against the Living: “Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve."
 
I rest.

08/26/2020

Segall on the Meaning-Application Distinction
Chris Green

Eric Segall at Dorf on Law presents again an argument he has run many times before: the idea that acknowledging the distinction between meaning and application (or sense and reference, as I would put it) opens the door to exactly the same considerations that living constitutionalism would allow. He writes:

Originalism may be part of our law but so are a host of other factor, some of which most originalists would agree are relevant, such as stare decisis and mistakes of fact by those who wrote and ratified the Constitution and and its amendments. The latter category of considerations, expressly accepted by noted originalists Lawrence Solum, Ilya Somin, and Christopher Green, as I've written before, gives the whole game away. If judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning, that level of discretion, which can only be exercised off the page of written texts or prior decisions, will inevitably implicate the personal experiences and values of judges in a way that simply cannot be explained by resort to formal legal materials.

One initial confusion here is the distinction between the original textually-expressed meaning itself, which most (but not all!) interpreters think is relevant, and originalism, the thesis that original meaning is binding whenever we are interpreting the Constitution as such. It's a category mistake to say that originalism is part of our law if original meaning is not binding. Those who think original meaning can be overridden by other considerations don't subscribe to originalism, and they therefore wouldn't say that originalism is part of the law. They can agree that original meaning itself can be a defeasible part of our law.  But not originalism.

But this slip is less important than Segall's discussion of mistakes of fact. If the text expresses a general category, filling in the applications of that term will require finding facts of a particular kind. Population categories in the text (e.g., "according to their respective numbers" in Article I, section 2, clause 3) require population facts. It's easy to identify framer errors on this sort of thing; the interim rules game North Carolina fewer representatives than Maryland, despite the fact, as it turned out once we counted in 1790, that North Carolina had more people. Other terms will require an assessment of sociological or moral facts; as I read the history, the term "privileges or immunities of citizens of the United States" requires both. As I put it many years ago (see here at 585), "Only the text can answer what sorts of errors should cause us to abandon adherence to the paradigm case, for only the sense expressed in that text determines which facts are the reference-yielding facts."

No (first-order) originalist thinks that "judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning." An originalist thinks that the original meaning is binding. That's what it means to be an originalist. And a meaning-application-distinguishing originalist like me (and most other originalists too) doesn't think that interpreters today decide which facts matter and which facts don't matter. The original meaning of the text does that. But people applying the binding, fixed meaning to situations today decide the fact themselves. 

In short, Segall confuses the non-bindingness of original applications (which most originalists today acknowledge) with the non-bindingness of original meaning (which [first-order] originalists by definition reject). And he confuses the ability to find facts with the ability to decide which facts matter

Distinguishing meaning from application, or sense from reference, doesn't "give[] the whole game away." I've frequently used mathematical terminology to make this distinction clear, and it's worth doing again. Meaning determines a function from possible facts to outcomes. If the outcome doesn't depend on the facts, it's a constant function. If the outcome depends on the facts, it's a non-constant function, i.e., a term that has a sense-reference or meaning-application gap. But the size of the gap will vary depending on the term. Just because a function is non-constant does not mean that it is "surjective" or "onto." A surjection is a function that reaches any possible outcome in the codomain for some possible input. For instance, seen as functions from real numbers to real numbers, y=x^3 is surjective, because all real numbers have a real cube root. But y=x^2 is not, because the squares of real numbers are never negative.

If our constitutional terms in context express surjective functions, then those who apply them will be able to reach any outcome they desire if they use the appropriate factual input. Of course, they won't always be able to get away with making up facts, but a surjective function would allow those facts to be relevant: given the right facts and constitutional terminology expressing a surjective function, we can get to any outcome we like. But if our constitutional terminology has a limited range of possible referents--i.e., its meaning expresses a non-constant but also non-surjective function--then those who apply constitutional categories will still face limitations, even though they might be in a position to find the relevant facts. The power to find relevant facts, in short, isn't the same as the power to make facts relevant.

Update (8/27): Segall responds with quotations from Larry Solum, referring to changed "outcomes," and from Ilya Somin and Ilan Wurman, referring to changed "applications." I of course say similar things myself regularly; indeed Ilan cites me at this point in his book. The whole point of a meaning/application distinction is that changes in outcomes or applications are distinct from a "departure from original meaning." I'll quote Euclid v. Ambler Realty: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. ... [A] degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles..."

Update (8/28): In response to a proposal from Evan Bernick, Eric concedes, I think, my main point: "Chris, true, no originalist thinks that judges have discretion to choose which facts are made relevant by the text, but that’s exactly what judges have done and will continue to do because realism is true." Later on, alas, he claimed that it was only a joke.

New Book from Jack Rakove on the Free Exercise of Religion
Michael Ramsey

Recently published, by Jack Rakove (Stanford): Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion (Oxford Univ. Press 2020).  Here is the book description from Amazon:

Today, Americans believe that the early colonists came to the New World in search of religious liberty. What we often forget is that they wanted religious liberty for themselves, not for those who held other views that they rejected and detested. Yet, by the mid-18th century, the colonists agreed that everyone possessed a sovereign right of conscience. How did this change develop? In Beyond Belief, Beyond Conscience, Pulitzer Prize-winning author Jack Rakove tracks the unique course of religious freedom in America.

He finds that, as denominations and sects multiplied, Americans became much more tolerant of the free expression of rival religious beliefs. During the Revolutionary era, he explains, most of the new states moved to disestablish churches and to give constitutional recognition to rights of conscience. These two developments explain why religious freedom originally represented the most radical right of all. No other right placed greater importance on the moral autonomy of individuals, or better illustrated how the authority of government could be limited by denying the state authority to act. Together, these developments made possible the great revival of religion in 19th-century America.

As Rakove explains, America's intense religiosity eventually created a new set of problems for mapping the relationship between church and state. He goes on to examine some of our contemporary controversies over church and state not from the vantage point of legal doctrine, but of the deeper history that gave the U.S. its own approach to religious freedom. In this book, he tells the story of how American ideas of religious toleration and free exercise evolved over time, and why questions of church and state still vex us.

(Via Steven Green [Willamette], who has a brief review at SCOTUSblog.)

08/25/2020

A Response from Michael Dorf & Martin Lederman on Originalism and Natural Born Citizens [UPDATED]
Michael Ramsey

At Dorf on Law, Michael C. Dorf & Martin S. Lederman: What is Nonoriginalism? A Response to Professor Ramsey’s Misunderstanding of our Analysis of the Natural Born Citizen Clause. From the introduction:

Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. ... [W]e joined 39 other constitutional scholars who signed a letter explaining what was so very wrong with Professor Eastman’s analysis. ... In a post on the Originalism Blog, University of San Diego law professor Michael Ramsey wrote that he would have signed it, too, at least if it had included “a couple of minor modifications.”  We very much appreciate his general support for our conclusion about Senator Harris. Statements like his and one by UCLA law professor Eugene Volokh underscore that Eastman’s view falls nowhere within the range of opinions held by scholars with a very wide variety of methodological and ideological commitments.

In addition to agreeing with the substance of the response to Professor Eastman, however, Professor Ramsey implicitly accused at least some of the letter’s signers (including one of us by name) of hypocrisy, although Professor Ramsey was too polite to put the charge that pointedly. Professor Ramsey observed that some of its signers “are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.). Yet here they rely on originalist arguments.” With due respect, we think that Professor Ramsey misunderstood both what the letter said and the nature of the broader critique of originalism. 

I'll largely leave aside quibbles about what the letter does or does not say -- partly because I simply don't understand them.  For example, the response says: "The letter acknowledges looking beyond the Constitution’s text, but not for the definition of the term NBC [natural born citizen]. The broader search (which takes us to the longstanding English common law) merely aims to discover whether someone in Senator Harris’s situation is an NBC."  But isn't discovering "whether someone in Senator Harris’s situation is an NBC" part of finding the definition of NBC? In any event, my core claim about the letter is that it used originalist sources, such as the eighteenth-century English common law, to answer the question whether someone in Senator Harris’s situation is a natural born citizen.  That still seems right to me, and it's not clear that the response denies it.

The response's second point -- that is, the nature of the broader critique of originalism -- is the more important one.  My main point was that the letter showed both (a) that definitive answers could be had from originalist sources, and (b) that original meanings are relevant to modern constitutional interpretation. I don't think the response undermines either claim.  The response's main argument seems to be that no one actually denies these propositions.

The response states: "[W]e consider arguments based on the text and on original understandings to be relevant to constitutional interpretation. (Is there anyone who doesn’t?)"  I'm glad to hear that.  But from many academic and non-academic debates, I can assure the writers than there are many people who do not. 

Relatedly, the response says: "[N]o one subscribes to Professor Ramsey’s proposition ... that the original meaning, even if determinate, should have no force in the modern world.' That is not, as he says, one of 'the two most common arguments against originalism.' It is a straw man." Again, I'm glad to have the response on my side, but I think actually people do commonly say that it doesn't matter what meaning the Constitution had at the founding because that was long ago, the people who wrote it were aristocrats and slaveowners, etc. 

Finally, the response says the claim that "the original meaning of the text ... is 'inherently indeterminate, incoherent or impossible' ... is another straw man. Nonoriginalists acknowledge that the Constitution is determinate over a fairly wide range of cases." I'm glad to hear that too.  But I don't think the argument for indeterminacy is as unusual as the response suggests.  I hear it all the time.

So in sum the response confirms that (a) the original meaning of the Constitution "is determinate over a fairly wide range of cases" and (b) "arguments based on the text and on original understandings [are] relevant to constitutional interpretation." The disagreement appears to be mainly the extent to which these propositions are disputed.

I entirely understand and respect the interpretative position the response seems to be taking -- that original meaning is a relevant, but not decisive, consideration.  That position clarifies what I regard as the core question in the originalismism/nonoriginalism debate: what additional things should be considered, and how strongly do they weigh in the resolution?  Clearing away the arguments the response calls "straw men" helps focus on the right question.

UPDATE: Professor Dorf has a brief response to this post as a comment on his original post.  I mostly agree with it, at least the part about our disagreement.

(Also the link at the beginning of this post was bad -- now fixed.  Apologies.)

08/24/2020

Robert Pushaw: Do Foreign Nations Have Constitutional Rights?
Michael Ramsey

Robert J. Pushaw (Pepperdine University - Rick J. Caruso School of Law) has posted Do Foreign Nations Have Constitutional Rights? (Fordham Law Review Online, Vol. 88, p. 142) (14 pages) on SSRN. Here is the abstract:

Ingrid Wuerth challenges the conventional wisdom that the Constitution does not grant any procedural rights, such as notice and personal jurisdiction, to foreign countries. Her foundational premise is that the Constitution’s Framers, Ratifiers, and early interpreters did not precisely use terminology such as “judicial power,” “cases,” “controversies,” “due process,” “subject matter jurisdiction,” and “personal jurisdiction.” Professor Wuerth follows suit by collapsing these terms into a general analytical framework, which is then applied specifically to litigation involving foreign sovereigns. I submit, however, that these words (and the concepts they convey) were— and still are—distinct, albeit related. In particular, clarity would be promoted by treating Article III—which primarily concerns subject matter jurisdiction over three categories of “Cases” and six types of “Controversies”— separately from Due Process issues such as personal jurisdiction. Moreover, Article III’s text and history indicate that its drafters included “Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” to ensure that such disputes would be resolved impartially by federal judges who, unlike their state counterparts, enjoyed tenure and salary guarantees that insulated them from political pressure. By contrast, Professor Wuerth presents no direct evidence that the Framers or Ratifiers understood this Alienage Clause as guaranteeing procedural rights to foreign nations. Therefore, although I agree with her thesis that foreign governments should receive the same constitutional procedural protections as their citizens and enterprises, the main font of those rights should be the Due Process Clause rather than Article III. I will develop the foregoing ideas primarily by critiquing Professor Wuerth’s historical analysis of those two constitutional provisions. I will then consider some modern implications of her proposal.

 

08/23/2020

Further Comments on Faithless Electors
Michael Ramsey

From David Weisberg:

As a very brief reply to Prof. Rappaport’s response to my comment on his original post about the Chiafalo decision, I would say, first, that the argument based on the original scheme of U.S. Senators being chosen by a State’s legislature is an imaginary horrible.  Suppose, prior to the 17th Amendment, a State’s legislature passed a law providing that anyone chosen to be U.S. Senator must pledge to support policy X.  The esteemed Mr. Jones so pledges and is chosen.  But the Constitution states that Senators have a fixed term of 6 years, and the constitutional doctrine of legislative immunity bars any legal action against a member of Congress for any action taken in the sphere of legitimate legislative activity.  So, for every practical purpose, the “pledge” is a nullity—even if Sen. Jones votes against policy X, he will still serve for 6 years, he cannot be punished by his State, and his Senate votes cannot be reversed.

My second point: Prof. Rappaport’s original post stated that key terms—“electors,” “vote,” and “ballot”—“suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.”  My response was intended to demonstrate that there is no such “suggestion;” those words are fully consistent with a circumstance in which a person—e.g., a juror—is bound by oath to follow faithfully a judge’s instructions on the law.  Prof. Rappaport responds that the modern practice of requiring jurors to follow those instructions might be unconstitutional.  (A second point of disagreement between us.)  But, whether or not the practice is unconstitutional is beside the point, because the point is that the ordinary English meaning of those key terms neither implies nor even suggests that electors (or jurors) cannot be required to fulfill oaths they freely take upon entering office.  This is a point about the ordinary meaning of certain words, not about the constitutionality of modern jury instructions.      

And from John Vlahoplus:

The Chiafalo decision is a disaster for originalism, and rightly so.  If the words “elector,” “vote,” and “ballot” make electors free agents then they are free of federal as well as state control.  They are free to sell their votes to the highest bidder, foreign or domestic.  The President of the Senate must count known-bribed electoral votes.  

If a state is limited to a narrow power to determine the manner of appointment, and if the federal government is limited to narrow enumerated powers, then neither may judge the qualifications of electors or remove electors for any reason.  If multiple slates of electors return conflicting self-certified lists of electoral votes, as occurred after the Civil War, the President of the Senate must count all of those votes.

If narrow text and historical practice proximate to adoption control, then Congress has no authority to interfere in the manner of appointing electors.  It cannot forbid aliens to vote for electors, to be electors, or to advocate the election of any candidate.

Yet both federal and state governments can forbid bribing electors.  States have long provided for replacing electors.  Congress judges the qualifications of electors, rejects electoral votes that it considers invalid, and forbids aliens to vote for electors, to be electors, or to advocate the election of candidates.  In these and other circumstances, both governments rely on underlying constitutional principles and purposes to elaborate and arguably to act contrary to the Constitution’s sparse text. 

Originalism fails because it routinely results in debates such as those between David Weisberg (here ) and Mike Rappaport (here).  Originalism cannot resolve disputes non-normatively by judging, for example, whether House electors are the right analogue to presidential electors.  There is no reason to believe that any analogue exists.  The Constitution requires presidential electors to vote, for example, but it does not require anyone to vote in House elections.

Originalism also fails as a description of our constitutional practice if Mike Rappaport’s analysis is correct.  Originalism must find all of the state and federal electoral practices described above to be unconstitutional, and the Constitution itself to be a suicide pact.  Insisting that we restrict our interpretive practice to limited historical materials like period dictionaries, statements of Alexander Hamilton, and analogies to other constitutional text is a normative choice.  Fortunately, our constitutional practice and the Chiafalo decision reject that choice.

08/22/2020

Tribes, Nations, States: Our Three Commerce Powers
Chris Green

I have posted Tribes, Nations, States: Our Three Commerce Powers to SSRN. The abstract:

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.”

Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday.

Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship—the Privileges or Immunities Clause for states and fiduciary principles for the federal government—instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law—federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari—receive possible justification.

Comments welcome!

John McGinnis on Adrian Vermeule on Originalism
Michael Ramsey

At Law& Liberty, John McGinnis: Originalism: More than a Presumption.  From the introduction:

Adrian Vermeule, constitutional originalism’s foremost opponent on the right, has again criticized the theory and its statutory kissing cousin, textualism. While he argues that positivism cannot provide a justification for originalism or textualism, he concedes that “substantive goods of political morality” might serve to provide textualism and originalism support. But, according to Vermeule, even such goods could justify only a “presumptive originalism.” Under presumptive originalism, interpreters should begin with a presumption of following the original meaning. But if originalism yields a very bad result as assessed by political morality, the original meaning of a provision should not be followed.

Vermeule’s concession may be larger than he realizes, because most modern theorists of originalism invoke substantive political goods to justify following original meaning. And once it is agreed that substantive goods can justify presumptive originalism, it should follow that they might justify originalism absolutely. Whether originalism should be followed presumptively or absolutely is a contingent question that depends on the nature of the goods that justify it and the capacity of other institutions—such as the amendment process—to realize substantive goods when an original interpretation does not capture them directly and immediately.

First, most defenders of originalism agree with Vermeule that originalism needs a justification outside the meaning of statutory or constitutional words, or even outside the practice of judges in following them: There must be some substantive political morality behind the choice to follow original meaning. Justice Antonin Scalia thought that originalism’s cardinal virtue was that it generated clear rules. Keith Whittington has argued that originalism respects the great political good of popular sovereignty. At this site, Ilan Wurman recently contended that “Originalism allows us to conserve [the] balance among the principles of our Founding: self-government, ordered liberty, and (at least since the ratification of the Fourteenth Amendment) equality under law.” Mike Rappaport and I have shown that originalism is justified by a procedural excellence: a constitution is likely to be good when made under the kind of consensus-making rules that characterize our own Constitution. No other structure is as likely to lead to good results.

While I am partial to our own theory as capturing the best justification for originalism, these overlapping goods, taken together, provide a very powerful justification of the kind that Vermeule demands. The consensus-making provisions contained popular sovereignty so that it would likely yield the best possible results. And, as befits a sound constitution-making process, these results generated political goods such as those praised by Ilan Wurman and Justice Scalia.

And in conclusion:

Vermeule concedes that his preference for common good constitutionalism over presumptive originalism is  “one of contingent judgment rather than of principle” He believes that presumptive originalism “might have been correct, so to speak, although it turns out not to be.” Thus, for Vermeule the debate must be conducted based on considerations of our circumstances, including human nature. But the preference for presumptive originalism over originalism tout court is similarly based on an assessment of our human circumstancesIn a world where individuals have very imperfect barometers of the good—both because of passions and limited perspective—it is better to rely on the meaning of a constitution created by consensus, at least until another consensus is forged to change it.

08/21/2020

Caleb Nelson: Vested Rights, "Franchises," and the Separation of Powers
Michael Ramsey

Caleb Nelson (University of Virginia School of Law) has posted Vested Rights, "Franchises," and the Separation of Powers (University of Pennsylvania Law Review, forthcoming 2021 (vol. 169)) (92 pages) on SSRN.  Here is the abstract:

Modern courts and commentators have had trouble distinguishing the kinds of decisions that require “judicial” power from the adjudicative tasks that Congress can authorize administrative agencies to perform in the course of “executing” federal law. In a prior article ("Adjudication in the Political Branches," 107 Colum. L. Rev. 559 (2007)), I sought to explain traditional doctrines on that topic. For much of American history, Congress could authorize executive-branch agencies to administer and dispose of “public rights” belonging to the federal government or the people collectively, and Congress also could give agencies conclusive authority with respect to the administration of “privileges” that federal law gave private individuals or entities. But the political branches did not have similar sway over vested private “rights.” Only true courts could conclusively determine either that a private person had forfeited such rights or that the claimed rights had never vested in the person to begin with.

In my earlier article, I referred to the category of “franchises”—special powers or perquisites that the government gave private people who, in turn, did something of value for the public. Because no one had a vested right to be granted a franchise in the first place, I lumped franchises together with privileges. That taxonomy may have influenced the Supreme Court’s analysis of patents in Oil States Energy Services v. Greene’s Energy Group (2018). But the story is actually more complex. In the nineteenth century, once the government granted a franchise, private rights normally were thought to vest in the franchisee. That idea affected constitutional doctrine with respect to a wide array of legal interests, including not only patents but also corporate charters, the power to operate ferries and toll-roads, and more.

This Article explores the concept of franchises and their interaction with American-style separation of powers. In the process, it illuminates historical understandings of the public/private distinction, unearths new evidence about the constitutional status of patents, and sheds light on the traditional roles of each branch of government.

08/20/2020

Weisberg on Chiafalo
Mike Rappaport

David Weisberg has criticized my argument that Chiafalo wrongly allowed states to control the votes of presidential electors.  But like many others who disagree with my analysis, Weisberg does not address the strongest arguments against his view.   

First, he does not address how his view would apply to senatorial elections at the time of the Constitution. As I wrote in my initial post:

The original Constitution provided for state legislatures to select the Senators. But no one argued that this allowed the state to pass laws that bound Senators as to how to vote. Similarly, the Constitution provides for the appointment of federal judges by the President with the advice and consent of the Senate, but no one argued that this appointment power allows the President and Senate to control how the judges vote.

I didn’t have space to add a similar argument.  The Constitution provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.”  The consequence of interpreting the Constitution to allow the states to control presidential electors would seem to be that a state can control how the electors in the state – that is, the voters – exercise their franchise.

Weisberg argues that when someone makes a pledge, it is permissible to enforce that pledge since the pledge was voluntary.  But that is not true of these other provisions.  If candidates for the Senate under the original Constitution pledged to vote in a certain way in the Senate, would the state have the power to remove them if they did not follow this pledge?  Of course not. 

Anyone advocating Kagan or Weisbrod’s position owes us an explanation of how these provisions should be interpreted.  Yet, we do not get one – either from the Supreme Court or from the critics.

Weisberg’s main argument is based on the example of juries.  Weisberg claims that jurors’ votes can be controlled if they misapply the law in that the judge can determine the juror’s misapplied the law.  Weisberg does not mention jury factfinding, but that too might support his case.  Weisberg argues that jurors “vote” and often do so by “ballot,” so why does that not disprove my point?

Weisberg’s argument here is a version of Kagan’s argument in Chiafalo.  We can imagine situations where a constrained choice nonetheless represents a vote, by ballot, by an elector.  But for much the reason that Kagan’s arguments are weak, so are Weisberg’s.

The principal point is the context.  Yes, as Kagan shows, we can envision different contexts than presidential elections where secondary or peculiar meanings of these terms might be applied.  But so what?  The question is whether those meanings make sense in the context of presidential electors, where those secondary meanings do not make sense.  This is especially the case given the constitutional provision that provides that states are given only the power to “appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” who “shall meet in their respective States, and vote by Ballot . . . .”  The specific words and the overall design of the provision, as affirmed by contemporaries such as Hamilton, suggest the electors make their own decisions.  They are electors, like the people who select members of the House of Representatives. 

Weisberg’s argument about the jury is telling.  First, it is by no means clear that our existing rules concerning juries, which allow judges to control both jury law interpretation and factfinding, are correct under the original meaning.  There is significant evidence that juries had the power to determine the law at the time of the Constitution and that review of jury factfinding was unconstitutional. 

But suppose that one rejects this evidence and concludes that jury factfinding and law interpretation can be reviewed under the original meaning.  The only good reason for doing this would be based on the claim that the institution of a jury, historically, allowed judges to review jury factfinding and law determination.  And so the specific context of juries allowed such judicial action.  But that specific context distinguishes juries from presidential electors (as does the fact that juries are not described in the Constitution as electors who vote by ballot).   

Originalism Is Our Law (At Least When It Suits Us)
Michael Ramsey

Via Neil Siegel at Balkinization, 40 law professors have signed a letter concluding that Senator Kamala Harris is a natural born citizen and thus eligible for the presidency and the vice-presidency.  The letter's argument generally parallels my thoughts on the issue, here.  (I would have signed the letter -- with a couple of minor modifications --  if anyone asked, but no one did).

Notably, the letter relies almost entirely on originalist arguments.  The Constitution's text does nothing to define the eligibility clause's phrase "natural born citizen," so we must look elsewhere for the definition.  Here is the letter's argument: 

As the Supreme Court long ago unanimously observed, “[t]he Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1874). A primary source to which the Supreme Court has consistently resorted is English common law.
 
And that common law, from centuries before the creation of the United States up through the nineteenth century, always treated children born within the sovereign’s territory as “natural-born subjects”—“subjects” within a monarchy being equivalent to “citizens” in a republic. The great English jurist William Blackstone, who significantly shaped the legal understandings of the Framers of the U.S. Constitution, explained in his Commentaries published shortly before American independence that “Natural-born subjects are such as are born within the dominions of the crown of England,” because by being born in English territory, they owed allegiance to the king. 1 Blackstone *365-66. In particular, he emphasized that “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”  1 Blackstone *373. The only exception Blackstone identified was children born to enemies of the realm [ed.: um, also children of foreign diplomats]. And the great U.S. Supreme Court Justice Joseph Story made exactly the same point a few decades later: “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 164 (1830).
 
The letter also relies on the Supreme Court's description of English common law in United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898). And that's it.  Every source cited is used to show what the English common law was -- and thus what "natural born" meant -- when the Constitution was ratified.  This is exactly the methodology I used in The Original Meaning of "Natural Born" so of course it seems right to me.
 
But most of the signatories of the letter are not originalists (Keith Whittington, Jack Balkin and a few others excepted).  Some are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.).  Yet here they rely on originalist arguments.
 
Will Baude is right, at least part of the time:  Originalism is our law.  When it suits us.
 
To be sure, these scholars may reply that originalism is indeed one of the "modalities" of constitutional argument, appropriate some times and not others.  I think that's a fair response (albeit a bit opportunistic).  But in any event they now should be precluded from the two most common arguments against originalism: (a) that it's inherently indeterminate, incoherent or impossible; and (b) that the original meaning, even if determinate, should have no force in the modern world.
 
The natural born issue joins others (the meaning of "emoluments," the meaning of "high crimes and misdemeanors") in which nonoriginalist scholars have found a definite and binding original meaning of a constitutional phrase.  I'm keeping a list.

08/19/2020

Larry Alexander: Connecting the Rule of Recognition and Intentionalist Interpretation
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Connecting the Rule of Recognition and Intentionalist Interpretation: An Essay in Honor of Richard Kay (52 Conn. L. Rev. (forthcoming 2020)) (20 pages) on SSRN.  Here is the abstract:

This article, written in honor of Rick Kay and his distinguished career, addresses two areas of mutual interest: the foundations of legal systems and legal interpretation as a quest for lawmakers’ intended meanings. I attempt to show how these two topics are connected.

Via Larry Solum at Legal Theory Blog, who says "Highly Recommended."

This essay is part of an outstanding symposium honoring University of Connecticut law professor and prominent originalist theorist Richard Kay -- also including among others this essay by Jeffrey Goldsworthy (Monash) and this essay by Laurence Clause (University of San Diego).