The Relevance of Edward Coke’s Original Meaning: A Reply to Evan Bernick
Andrew Hyman

My thanks to Evan Bernick for responding to my earlier post about what Edward Coke originally meant by the term "due process of law."  Bernick is “primarily concerned” with how Coke was understood by the generations of Americans who authored the U.S. Constitution, rather than with Coke’s original meaning.  I entirely agree with Bernick on this point, but also believe that Coke’s original meaning is among the best evidence of how Coke was later understood by Americans.

Absent clear evidence from each of the original thirteen states about what Coke’s definition of due process of law meant to them, I think it makes good sense to assume that the people in those states understood Coke correctly rather then incorrectly.  On the other hand, if evidence from some of the original thirteen states indicates a clear misunderstanding of Coke on this point, then we would probably have to inquire whether people in those states were more apt to stick with their own spin on Coke, notwithstanding further evidence about what Coke actually meant.  And then we would have to balance the evidence from all of those thirteen states. 

In short, Coke’s original meaning seems very pertinent to interpreting the U.S. Constitution, whereas Bernick finds it “irrelevant to the arguments we make concerning original meaning.”  Of course, there is plenty of evidence unconnected to Lord Coke that can help us understand the original constitutional meaning of “due process of law,” but Coke’s original meaning justly carries a great deal of weight too.  I object to the notion that one can properly understand how people in 1789 understood Coke without considering what Coke himself originally meant.  Because Coke’s original meaning was the focus of my post, and because Bernick finds it “irrelevant,” I suppose we will have to agree to disagree about its relevance.

Despite Bernick’s belief that Coke’s original meaning is irrelevant, he quotes Coke quite a lot, including Coke’s statement that due process of law is “declaratory of the old law.”  But Bernick does not quote or comment upon the passage that I pointed to where Coke explains exactly what he meant by that phrase “declaratory of the old [law].”   And readers of Coke in 1789 would have seen that that passage was merely referring to any statutory provision that does not change the law but rather repeats already-existing law; the Edwardian due process statute did just that, i.e. it merely repeated what was already the law according to Magna Carta’s Law of the Land Clause. 

I do not understand where in Coke's writings a reader in 1789 would have gotten the idea that the criteria for legality went beyond the criterion of enactment or acceptance by the supreme legislative power.  Bernick quotes Coke on monopolies, but leaves off the last seven words; Coke wrote that monopolies are “against this great Charter, because they are against the liberty and freedom of the Subject, and against the Law of the Land.”  Ryan Williams has correctly observed:

English courts had long held monopolies granted by the Crown without Parliament's approval to be prohibited by the common law, and such grants were formally prohibited by the Statute of Monopolies enacted by Parliament in 1624 four years before the first volume of Coke's Institutes appeared.  Coke's characterization of monopolies as contrary to the law of the land may thus have signified nothing more than that monopolies granted as a matter of royal prerogative were contrary to then-existing English common law and statute law….

It therefore seems pretty clear that Coke meant monopolies could be made legal by parliament, but were not legal as of the date of his treatise. 

I do not mean to suggest that construing Fifth Amendment "due process of law" in line with Coke would leave Congress totally unlimited by this clause.  Congress would not only be prohibited from contradicting or repealing this clause, but also would be forbidden (e.g.) from enacting weaker remedies than “liberty” when the criminal procedures listed in the rest of the Bill of Rights are violated.  I note that Richard Re has proposed a similar interpretation of “due process of law” to justify the Exclusionary Rule, although I would limit that interpretation to violations that occur during rather than before an “action,” in keeping with the definition of the word “process” that was prevalent in 1789.


Ilan Wurman on Eric Segall on Originalism
Michael Ramsey

At the Claremont Review of Books, Ilan Wurman (Arizona State) has the second part of his review of recent critiques of originalism (here is the first part): Originalism’s New Critics, Part 2: Faith (reviewing Eric Segall, Originalism as Faith).  From the introduction:

Georgia State law professor Eric Segall’s new book, Originalism as Faith, makes a more conventional—and for that reason more powerful—attack on originalism. The Constitution is written in such broad generalities—generalities like “due process,” “equal protection,” “cruel and unusual,” “unreasonable searches and seizures,” and “free exercise of religion”—that, Segall argues, even originalists must deploy personal policy preferences and value judgments in most contested constitutional cases. We’re all living constitutionalists, even if most of us pretend to be restrained by the Constitution’s text.

The criticism that originalism is merely a rationalization for conservative political results is not new. But in making his criticism, Segall is refreshingly honest about nonoriginalism. Most nonoriginalists claim they simply interpret the same text originalists interpret, but draw different conclusions based on their examination of contemporary understandings and practices. Only a few nonoriginalists—like Andrew Coan at the University of Arizona—acknowledge that nonoriginalism is about changing the Constitution over time. Segall, I take it, would agree with that characterization of nonoriginalism. More nonoriginalists should openly embrace that view; after all, that’s what they’re actually advocating.

Segall’s account of originalism in practice, and also of some modern originalists, is undeniably fair, thoughtful, and in many ways accurate. Some schools of originalism may very well be hard to distinguish from living constitutionalism. One maintains a distinction between “interpretation” and “construction”—interpretation dealing only with the meaning of the text, and construction dealing with the question of what to do when the meaning doesn’t answer the question at hand. If this distinction is real, and if meaning often leaves a large construction zone, then perhaps originalism can be hard to distinguish from living constitutionalism.

And from further along:

In my view, Segall is wrong because ... [t]he Constitution’s provisions are not the broad and vague generalities that Segall or advocates of a large construction zone believe. The problem with Segall’s argument is that the Constitution simply isn’t written in terms as broad as he thinks. If I am correct, then our disagreement dissolves. After all, if “equal protection” means nothing more nor less than “equality” subject to reasonable discrimination, and if “due process” is nothing but a delegation to future courts to decide what is “fair,” then I suppose there really is no daylight between our theories.

But those provisions are not broad generalities. Due process of law meant something far more specific than Segall seems to believe: no person could be deprived of life, liberty, or property without first having violated some preexisting law. Congress could not, by mere legislative decree, imprison someone or take one’s property and give it to someone else. The government could only deprive an individual of such rights pursuant to existing, known, and established laws. And any adjudication of a violation of those laws had to be conducted pursuant to a minimum of fundamental procedure. “Due process” is not a blank check for the Supreme Court to decide what is “fair.”

Similarly, equal protection is not about equality generally, but about equal protection of law.  ...

I think this is right, but even if it's not, I would add that there are many provisions in the Constitution that are obviously not broad generalities -- they are, rather, fairly specific directions about the design of government.  Even if originalism fades into nonoriginalism for some constitutional provisions, it remains distinct as applied to others.  To pick just one example, the clause at issue in NLRB v. Noel Canning -- the President's recess appointments power -- is not a broad generality.  Originalist and nonoriginalist approaches to that clause are quite distinct, as the majority and concurrence in that case demonstrate.



David Forte on John Dickinson on Free Speech
Michael Ramsey

At Liberty Law Blog, David Forte (Cleveland State): Dickinson, “Penman of the Revolution,” on Freedom of the Press.  From the core of the discussion:

At that First Continental Congress, the renowned penman [John Dickinson] was also the primary author of three other documents.... Most important to the history of freedom of the press, the delegates assigned Dickinson to write a Letter to the Inhabitants of Quebec in hopes of convincing the French Catholics there of the righteousness of the American resistance. He deftly produced a draft in short order; by October 26, 1774, the Letter was ready.

Dickinson’s rhetorical tack was to warn the Canadians of perfidious Albion—to persuade them that the English promises to respect French Civil Law could not be trusted and that their uncertain fate lay in the hands of a deceitful British Governor. They ought, Dickinson urged, to join with the other colonies in a constitutional order in which one’s rights would be guaranteed against any arbitrary deprivation. Dickinson listed a number of rights that he clearly thought would be of signal importance to the French Canadians. They included the right to representative government, trial by jury, habeas corpus, and the end of feudal servitudes.

And now we come to the crux of it:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

In few other places in pre-Revolutionary literature was the right of free expression expressed with such particularity. We can credit for the Letter’s authoritativeness its author, who was, at that time, the most respected spokesman of the colonial cause.

And from further on:

Sir William Blackstone, the renowned judge and professor, had published his Commentaries on the Law of England in the years 1765 through 1769. Blackstone and Dickinson had both been members of the Middle Temple in London, and Dickinson was one of the first American subscribers to Blackstone’s work. In the Commentaries, as we know, Blackstone summarized and legitimated the law on seditious libel, a restriction on the press that most observers agree had never taken root in the colonies and that was flatly at odds with the principles of the Letter to the Inhabitants of Quebec.

Blackstone’s doctrine of seditious libel became an alien interloper into the native American conception of the freedom of the press, and over the next few decades, uncomfortably wedged itself into the American consensus. It was not until the 1960s that the Dickinsonian view of a free press as articulated in the Letter to the Inhabitants of Quebec finally expunged Blackstone from American jurisprudence on the First Amendment. The original original understanding of a free press had triumphed at last.


Ilan Wurman on Jonathan Gienapp on Originalism
Michael Ramsey

At the Claremont Review of Books, Ilan Wurman (Arizona State): Originalism's New Critics, Part 1: Fixing Fixity (reviewing The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp).  Here is the introduction: 

Brett Kavanaugh’s ascension to the United States Supreme Court is sure to thrust originalism center stage in the debates over constitutional interpretation. Two well-timed new books—Jonathan Gienapp’s The Second Creation: Fixing the American Constitution in the Founding Era and Eric Segall’s Originalism as Faith—challenge originalism’s legitimacy and coherence. But though they present some new evidence and arguments, both books essentially resurrect two older, and still unconvincing, critiques.

When H. Jefferson Powell’s law review article, “The Original Understanding of Original Intent,” appeared in 1985 it was considered a fatal blow to originalism. Powell argued that the founders didn’t think their intentions should govern in the future, and therefore a method of constitutional interpretation privileging such intent was self-refuting. Powell’s article is still cited for the proposition that because the founders were not originalists, originalism refutes originalism.

Yet originalism overcame this attack. Today, originalism means we are bound by the original meaning of the Constitution’s text, not by any secret intentions of the framers. Of course, the framers’ intent is good evidence of what the text means; after all, most people deploy words to accomplish specific objectives. Thus the historical practices of earlier times are also evidence of the text’s meaning. But such intent and practices are not dispositive. Under this version of originalism, all of the founders were originalists. Even the nonoriginalist professor Segall (whose book I will review in the second installment of this essay) acknowledges that the founders “viewed constitutional interpretation ‘as an exercise in the traditional legal activity of construing a written instrument’ and thought that the usual ‘methods of statutory construction’ would be used by judges in constitutional cases.” For this proposition he cites Powell, who acknowledged that the founders expected the Constitution to be interpreted the way all legal texts are interpreted.

Jonathan Gienapp, in The Second Creation, doesn’t dispute that the founding generation expected constitutional meaning to be fixed over time and interpreted with the usual modes of statutory construction. Gienapp, an assistant professor of history at Stanford University, instead argues that the founders only came to this view some years after the Constitution’s ratification in 1788. Although by the mid-1790s members of the founding generation came to believe that the Constitution’s meaning would be fixed, it did not have to be this way. If we are originalists all the way down, then we must look to the very moment of founding; and, at that time, whether the Constitution’s meaning would be fixed, and whether it would be confined to its words, were widely contested and contingent propositions. And if they were contingent then, they are contingent now.

And from later on:

More important than the Constitution’s words [says Gienapp] is the government’s structure, the empowering of “the right kinds of counterforces.” It is not enough to delineate power “on paper”; according to Gienapp, “[r]educing constitutionalism to the mode through which it was written reflected a misunderstanding of the tasks inherent to such a project.” Constitutionalism “meant balancing powers and interests,” not “policing linguistic barriers.” Gienapp concludes that Madison “openly disparaged” the use of “constitutional language.” Other founders similarly worried about “a mere paper security” sought to “construe the object they were constructing in avowedly nontextual ways.” It is deeply misguided, writes Gienapp, “to assume that a constitution could ever by reduced to its language, that its constituent powers could be established via ‘paper discriminations.’”

These observations miss the mark. True, the framers were concerned about mere “parchment barriers.” They believed a mere declaration of rights or limits on power was insufficient to enforce such rights and limits because words could too easily be ignored by those in power. As the late Justice Scalia was fond of saying, any tinpot dictator can have a bill of rights. What really matters is the Constitution’s structure, the checks and balances and separation of powers that ensure, as Madison writes, that “ambition [is] made to counteract ambition.” But what creates this structure—this separation of powers? The words of the Constitution. If words were so imprecise and meaningless, and the Constitution were not confined to its words, then the separation of powers itself would be meaningless.

And for a specific example:

The removal power debate [of 1789], however, revolved around the meaning of the Constitution, not about its nature. The Constitution doesn’t explicitly mention the removal power, true enough; but that does not mean that, as a matter of textual interpretation, the removal power does not exist. Madison argued the power belonged to the President as a matter of the Constitution’s text. How did he reach that conclusion? By the very structure of Article II. Unlike Article I, which gives Congress only the legislative power “herein granted,” Article II vests “the executive power” in the President. This vesting of executive power is subsequently limited by other parts of the constitutional text. For example, Congress is given the power to declare war and issue letters of marque and reprisal (two historically executive powers), and the Senate is given a share in the appointment and treaty powers through advice and consent. If removal is an “executive power” not otherwise limited in the Constitution’s text, then it is “vested” in the President.


Statutory Originalism with Liberal Results: New Prime Inc. v. Oliveira
Michael Ramsey

Yesterday's unanimous Supreme Court opinion in New Prime Inc. v. Oliveira is a lot more interesting than it sounds.  The Court, per Justice Gorsuch [Justice Kavanaugh not participating] held that the Federal Arbitration Act’s exclusion from arbitration for disputes involving the “contracts of employment” of certain transportation workers applies to truck driver Dominic Oliveira’s independent contractor operating agreement with New Prime Inc.   The key issue was whether whether a "contract for employment" includes an independent contractor arrangement.  And that turns out to depend on what the original meaning of "contract for employment" is.  Here's Gorsuch: 

In taking up this question, we bear an important caution in mind. “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 9) (quoting Perrin v. United States, 444 U. S. 37, 42 (1979)).  See also Sandifer v. United States Steel Corp., 571 U. S. 220, 227 (2014). After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. INS v. Chadha, 462 U. S. 919, 951 (1983). We would risk, too, upsetting reliance interests in the settled meaning of a statute. Cf. 2B N. Singer & J. Singer, Sutherland on Statutes and Statutory Construction §56A:3 (rev. 7th ed. 2012). Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included. Id., §51:8 (discussing the reference canon). But nothing like that exists here. Nor has anyone suggested any other appropriate reason that might allow us to depart from the original meaning of the statute at hand.

Agreed.  But how about a cite to Scalia & Garner?

The opinion continues:

That, we think, holds the key to the case. To many lawyerly ears today, the term “contracts of employment” might call to mind only agreements between employers and employees (or what the common law sometimes called masters and servants). Suggestively, at least one recently published law dictionary defines the word “employment” to mean “the relationship between master and servant.” Black’s Law Dictionary 641 (10th ed. 2014). But this modern intuition isn’t easily squared with evidence of the term’s meaning at the time of the Act’s adoption in 1925. At that time, a “contract of employment” usually meant nothing more than an agreement to perform work. As a result, most people then would have understood §1 to exclude not only agreements between employers and employees but also agreements that require independent contractors to perform work.

There follows extensive discussion of the original meaning from 1925.

Then a rejection of the purpose-based counterargument:

Unable to squeeze more from the statute’s text, New Prime is left to appeal to its policy. This Court has said that Congress adopted the Arbitration Act in an effort to counteract judicial hostility to arbitration and establish “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). To abide that policy, New Prime suggests, we must order arbitration according to the terms of the parties’ agreement. But often and by design it is “hard-fought compromise[],” not cold logic, that supplies the solvent needed for a bill to survive the legislative process. Board of Governors, FRS v. Dimension Financial Corp., 474 U. S. 361, 374 (1986). If courts felt free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal, we would risk failing to “tak[e] . . . account of ” legislative compromises essential to a law’s passage and, in that way, thwart rather than honor “the effectuation of congressional intent.” Ibid. By respecting the qualifications of §1 today, we “respect the limits up to which Congress was prepared” to go when adopting the Arbitration Act. United States v. Sisson, 399 U. S. 267, 298 (1970). 

Result:  The truck driver wins, arbitration loses.

Justice Ginsburg, concurring:

“[W]ords generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” Ante, at 6 (quoting Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 9)). The Court so reaffirms, and I agree. Looking to the period of enactment to gauge statutory meaning ordinarily fosters fidelity to the “regime . . . Congress established.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 234 (1994).

Congress, however, may design legislation to govern changing times and circumstances. See, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 14) (“Congress . . . intended [the Sherman Antitrust Act’s] reference to ‘restraint of trade’ to have ‘changing content,’ and authorized courts to oversee the term’s ‘dynamic potential.’” (quoting Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 731‒732 (1988))); SEC v. Zandford, 535 U. S.  813, 819 (2002) (In enacting the Securities Exchange Act, “Congress sought to substitute a philosophy of full disclosure for the philosophy of caveat emptor . . . . Consequently, . . . the statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” (internal quotation marks and paragraph break omitted)); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 243 (1989) (“The limits of the relationship and continuity concepts that combine to define a [Racketeer Influenced and Corrupt Organizations] pattern . . . cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a ‘pattern of racketeering activity’ exists. The development of these concepts must await future cases . . . .”). As these illustrations suggest, sometimes, “[w]ords in statutes can enlarge or  contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” West v. Gibson, 527 U. S. 212, 218 (1999).


Orin Kerr on State Constitutional Interpretation
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: Theories of State Constitutional Interpretation.  From the beginning:

This raises an interesting question: Why don't more law professors write about state constitutions?

There are probably a bunch of reasons, but let me offer some amateurish speculation about just one. It seems to me that there aren't widely-known distinct theories of state constitutional interpretation. A lot of academic writing on federal constitutional law is about theories of interpretation. That subject tends to draw the most law-professor attention. But there doesn't seem to be a distinct set of theories on how to interpret state constitutions as compared to the federal constitution.

At least that's my sense from reading state court decisions, especially in my scholarly area of search and seizure law. State courts sometimes interpret their state search and seizure provisions as different from the federal Fourth Amendment. But they typically do so by simply reaching a different result using the same basic principles that federal courts follow. There are exceptions, but that seems to be the usual practice.

In my view, the most persuasive justifications for originalism at the federal constitutional level are not unique to the federal Constitution, but apply generally (or at least generally within Anglo-American jurisprudence).  So the originalism/non-originalism debate should be as relevant and interesting at the state level as at the federal level.  And I think there are interesting debates and developments going on (perhaps not sufficiently appreciated by federal-focused academics) in some states such as Utah and Michigan.  But I also think it's likely that there's less going on than there might be in many of the states.


Legal Theory Lexicon on Corpus Linguistics
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon has this entry on Corpus Linguistics.  From the introduction:

Recently . . . lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called "corpus linguistics," has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics. ...

Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflecting in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or "plain meaning textualism") has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.

And from later on:

How Does Corpus Linguistics Work? 

 Corpus linguistics begins with data sets, singular "corpus" or plural "corpora."  These data can be very large--with millions or even billions of words.  For example, the Corpus of Contemporary American English (COCA) consists of approximately 520 million words.  News on the Web (NOW) consists of more than 5.21 billion words.

Corpus lexicography uses these datasets to investigate the meaning of words and phrases.  Whereas traditional dictionary lexicography relied on researchers compiling instances of usage by reading various sources, the corpus approach allows random sampling from large databases with blind coding by multiple coders.

A complete description of the methods of corpus lexicography is beyond the scope of this brief Lexicon entry, but there are two search techniques that can be described briefly.  The first of these is the Key-word-in-context (or KWIC) search.  This method is simple: a corpus is searched for the occurrence of a string (a word or phrase) and reports back the context in which the string occurs.  The individual instances can then be coded for meaning.  The result will be a set of meanings and data about the frequency of the meanings with the sample.  The second method involves a search for the collocates of a word or phrase: for example, the word "bank" might have collocates like "river," "shady," "deposit," and "ATM."  Collocates may help to disambiguate a word like "bank" that has multiple meanings.

And in conclusion:

The introduction of a new methodology to legal theory is a rare event, but corpus linguistics is one of the black swans.  It is still early days, but the use of corpus methods has already begun in earnest--both in the courts and the academy.  The Bibliography provides many of the key sources in a literature that still can easily be read in just a few days.


More on the President's Delegated "Emergency" Power
Michael Ramsey

At Dorf on Law, Michael Dorf: National Emergencies: The Big Picture.  Here's the core of the argument:

The statutory authorities that Trump would invoke to build (part of) his southern border wall cede power to the president in a way that is hard to square with the spirit of the Constitution--even in normal times with a normal president. Why do I say that? Because Sec. 202 of the National Emergencies Act says that when the president declares a national emergency--and thus invokes special powers that come with such a declaration--the emergency remains in effect until either the president or Congress ends it.

That's the wrong default. The whole point of permitting the president to unilaterally declare an emergency and therefore invoke extraordinary powers is that some crises require immediate action, leaving insufficient time for deliberation in Congress. But--with a categorical exception to which I'll return below--in just about any crisis that does not require a response on the order of minutes, hours, or at most days, Congress can convene in time to deliberate and decide on a response. Congress declared war on Japan the day after the attack on Pearl Harbor. Congress authorized force against the perpetrators of 9/11 one week after that attack.

Judged by that big-picture standard, it should be crystal clear that there is no emergency warranting unilateral presidential action to build a border wall. By that I don't mean just that the number of unlawful border crossings is substantially lower than it was in recent years--although it is. Nor do I mean just that a border wall would do little to address drug trafficking (because drugs mostly enter at ports of entry) or the uptick in Central American migrants seeking to present themselves to file asylum claims--although that's also an obvious problem with Trump's wall. No, mostly what I mean is simply this: Even if one thought that a southern border wall (made of concrete, steel, stones, bricks, or sticks and chewing gum) were vitally important to national security, building such a wall is a project that would necessarily unfold over a long period that can easily accommodate congressional deliberation. And indeed, that's what's happening. Congress is deliberating. The president doesn't like the current outcome of those deliberations, but in a constitutional republic with separation of powers in which the legislature has the power of the purse, a disagreement between the legislature and the executive does not constitute an emergency warranting unilateral executive action. If it did, there would be no real legislative power.

Accordingly, I regard the National Emergencies Act itself as a big part of the problem we currently face. Through that Act, Congress has ceded to the president power that it should have reserved for itself. A unilateral presidential emergency declaration should expire after a short period, unless ratified by Congress. That Congress has acquiesced in a practice of decades-long "emergencies" is shameful. It probably does not violate the Constitution as construed by the SCOTUS, because it would be judged under the essentially toothless nondelegation doctrine. Still, even if the National Emergencies Act complies with the letter of constitutional doctrine, it violates the spirit of the Constitution.

I'm sympathtic.  But in the comments Marty Lederman asks what strikes me as a pretty devastating question:

Does this critique depend on the notion that the delegation itself is predicated on an "emergency," suggesting that Congress's intent was only to cover situations in which it did not have time to act? If so, Congress abandoned that notion long ago, didn't it?: Think of IEEPA, which requires a presidential declaration of a "national emergency'" from an "unusual and extraordinary threat" in order to trigger its authorities (which are more liberty-restrictive than those we're discussing now). IEEPA is virtually never used in a case where Congress lacks time to act, and yet both political branches (and the courts) have acquiesced in a practice of robust presidential "emergency" findings under it--and they often last for decades.

Isn't it more accurate, then, to view these simply as broad delegation statutes, e.g., "the President may repurpose DOD funds when he thinks there's a really important reason to do so"? If they were phrased that way, I'd be surprised if you'd say that they violated the spirit of the Constitution, right? They'd be understood merely as very broad delegations to the POTUS, on the assumption that the executive ...  knows better than Congress and/or ought to be afforded the flexibility to shift things around more quickly than the slow moving gears of legislation allow.

This seems right -- in this context "emergency" is both overused and overemphasized.  The question is whether Congress can permit the President to spend money that has been authorized for one project on an entirely different project that has not itself been authorized.

Professor Dorf has a response (also in the comments) but it seems a bit weak -- he concedes that he's not generally sympathetic to nondelegation claims but thinks there's a problem here and in similar national security areas.  That seems it too much like trying to have it both ways -- "delegation is fine for things I like, but not for things I don't like."


Daniel Chen & Elliott Ash: What Kind of Judge Is Brett Kavanaugh?
Michael Ramsey

Daniel L. Chen (Directeur de Recherche, Centre National de la Recherche Scientifique, Toulouse School of Economics, Institute for Advanced Study in Toulouse, University of Toulouse Capitole, Toulouse, France) and Elliott Ash (ETH Zurich) have posted What Kind of Judge Is Brett Kavanaugh? A Quantitative Analysis (Cardozo Law Review, 2018) on SSRN.  Here is the abstract:

This article reports the results of a series of data analyses of how recent Supreme Court nominee Brett Kavanaugh compares to other potential Supreme Court nominees and current Supreme Court Justices in his judging style. The analyses reveal a number of ways in which Judge Kavanaugh differs systematically from his colleagues. First, Kavanaugh dissents and is dissented against along partisan lines. More than other Judges and Justices, Kavanaugh dissents at a higher rate during the lead-up to elections, suggesting that he feels personally invested in national politics. Far more often than his colleagues, he justifies his decisions with conservative doctrines, including politicized precedents that tend to be favored by Republican-appointed judges, the original Articles of the Constitution, and the language of economics and free markets. These findings demonstrate the usefulness of quantitative analysis in the evaluation of judicial nominees.

(Via Larry Solum at Legal Theory Blog).


More Supreme Court Textualism
Michael Ramsey

The Supreme Court delivered two unanimous decisions in unexceptional cases this week: Culbertson v. Berryhill (per Justice Thomas) and Henry Schein Inc. v. Archer & White Sales Inc. (per Justice Kavanaugh).  

 Both opinions are notable as strongly textualist, though.  In Schein, the question presented was

Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.” 

The Court concluded:

The question presented in this case is whether the “wholly groundless” exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a “wholly groundless” exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. 

Note here that there's a good pragmatic argument for the "wholly groundless" rule.  Why constitute an arbitration tribunal just for the purpose of assessing a claim that is "wholly groundless"?  Why not give federal courts the power to avert this obvious waste of time and resources?  Answer: because the statute doesn't grant this power.

In Culberson, the question presented was:

Whether fees [for representation of claimants under the Social Security Act] subject to § 406(b)’s 25-percent cap include ... only fees for representation in court or ... also [include] fees for representation before the [Social Security Administration].

Again, it seems reasonable to say that the 25% cap applies across the board.  Why cap fees for representation in court but not cap fees for representation before the agency?  Answer: because that's what the statute says.  As Justice Thomas wrote for the Court:

Because §406(b) by its terms imposes a 25% cap on fees only for representation before a court, and §406(a) has separate caps on fees for representation before the agency, we hold that the statute does not impose a 25% cap on aggregate fees.

I think both cases are emblematic of a decisive shift in the legal culture.  Both cases reject pragmatic doctrines developed by the courts of appeal decades ago.  I doubt that either would have come out the same way at the Supreme Court forty years earlier, and at least they surely would not have been unanimous. The short of it is that, in cases that are not politically charged, if the text is clear, it will be applied, even if there is a good pragmatic argument on the other side. From a rule of law perspective, that's progress.



A Response to Andrew Hyman on Coke and Due Process
Evan Bernick

[Editor's note:  Evan Bernick is a visiting lecturer at Georgetown University Law Center and a resident fellow of Georgetown's Center for the Constitution.]

In a pair of posts on this site, Andrew Hyman has criticized Randy Barnett and my Article, “No Arbitrary Power: An Originalist Theory of the Due Process of Law,” which is forthcoming in the William & Mary Law Review. Specifically, he has claimed that we—together with Justice Neil Gorsuch—have been confused by the “crabbed, thorny prose” of Lord Edward Coke’s commentary on Magna Carta in his Institutes of the Laws of England into misattributing to the great jurist a “substantive” understanding of “due process of law.” Hyman implies that this misattribution undermines the credibility of our claims about the original meaning of “due process of law” as it appears in the Constitution.

 We think that Hyman greatly overestimated the importance of Coke’s commentary to our core claims. Even if Hyman’s claims about Coke’s intended meaning are correct—and we doubt that they are—that intended meaning is at best marginally relevant to our thesis, and we could concede the accuracy of Hyman’s interpretation of Coke without altering anything of substance in our Article. We hope to clear up the confusion below.

Hyman understands us to agree with Justice Gorsuch’s statement (in his concurrence in Sessions v. Dimaya) that due process of law guarantees that “the people’s rights are never any less secure against governmental invasion than they were at common  law.” In support of this statement, Gorsuch drew upon Coke’s commentary on Chapter 29 of Magna Carta (Chapter 39 in the original)—the famous “law of the land” clause—although Gorsuch also cited Justices Story and Scalia as authorities. Hyman concedes that “[i]f Coke did indeed interpret the Due Process Clause as being violated whenever the legislature offers less protection than did English law that is now hundreds of years old, then such an interpretation by Coke ought to be hugely influential today, and hugely supportive of what Barnett, Bernick, and Gorsuch wrote.” But, argues Hyman, Coke did not so interpret it, and so we are wrong—although we have the consolation of being in “distinguished company.”

Here is the key passage from Coke’s Institutes in which Coke discusses Chapter 29:

Nisi per Legem terrae.  But by the Law of the Land.  For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8. where the words, by the law of the land, are rendred, without due process of law, for there it is said, though it be contained in the great Charter [Magna Carta], that no man be taken, imprisoned, or put out of his free-hold without proces of the Law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.  Without being brought in to answere but by due Proces of the Common law. No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land.  Wherein it is to be observed, that this chapter is but declaratory of the old law of England. 

As Hyman observes, Coke in the same volume wrote that Magna Carta provided that  “no man be taken or imprisoned, but per legem terrae, that is, by the Common Law, Statute Law, or Custome of England.” If we understand Coke to be saying that “by the law of the land” meant “consistently with the Common Law, Statute Law or Custome of England”, it would seem to follow that Coke understood Chapter 29 to impose limitations on the content or substance of official actions against individuals, not merely the procedures through which those actions could be taken. Any substantive limitations would be imposed by existing “Common law, Statute Law or Custome.”

Hyman, however, argues that in citing the (wrong) Edwardian statute for “the true sense and exposition of these words [in Chapter 29]” and then stating that “this chapter is but declaratory of the old law of England,” Coke meant only “that the statute was not saying something new but rather was reiterating what had already been said in Magna Carta.” Coke was thus not asserting that Chapter 29 was “violated whenever the legislature offers less protection”—whether “procedural or substantive”—than did “ancient English law.”

We make a point of emphasizing in our Article that we do not believe that Coke understood Chapter 29 to impose any judicially enforceable constraints on Parliament. We concur with the scholarship of Philip Hamburger, which maintains that Parliament’s status as the highest court in the realm created insuperable institutional obstacles to the judicial invalidation of Parliamentary enactments. We also concur with Hamburger that Coke’s report of Dr. Bonhams Case, although interpreted by some as a declaration that judges may hold acts of Parliament to be legally void, most likely was an example of equitable interpretation. We’re not sure whether Hyman understands us to be arguing otherwise, but, to the extent that he does, he’s mistaken.

To the extent that Hyman is claiming that Chapter 29 placed no limits on the substance or content of royal actions against individuals—that it only guaranteed personnel and process—we respectfully disagree, and we find ourselves in distinguished, if surprising, company in doing so. No less an opponent of substantive due process than Raoul Berger recognized that “[a] judicial judgment posits some antecedent law that governed, the violation of which gave rise to the proceeding” and that Chapter 29 required that people be “charged with violation of some existing custom or law, without which a trial would be a farce.” Although Berger found “no dissent” concerning the proposition that Chapter 29 did not bind the legislature, he expressed agreement with historian Charles McIlwain that Chapter 29’s reference to the judgment of one’s peers “prescribe[d] the manner of application [of the law],” its reference to the law of the land, the law to be applied.”

That Lord Coke recognized—indeed, insisted upon—a distinction between the law of the land and the will of the King, and that he understood Chapter 29 to require royal actions be consistent with the former appears obvious from his commentary on the Chapter in the Institutes. Consider his statement that monopolies were “against this great charter, because they are against the liberty and freedome of the subject” and so could not be unilaterally granted by the King.  Or his affirmation that “[b]y the law of the land no man can be exiled, or banished out of his native country, but either by authority of Parliament, or, in case of abjuration by felony by the common law.” Examples could be multiplied, but the distinction between the law of the land and arbitrary royal will—by which is meant royal will that is unsupported by legitimate authority—can be easily perceived by prudent readers, despite its “crabbed, thorny prose.” It is also easy to perceive that Coke believed there to be more to Chapter 29 than access to the process and personnel of the courts. There was also law that judges were required to use to evaluate whether the actions of the King or his delegatees were in grounded in legitimate authority. Else, as Berger put it, any trial “would be a farce.”

But even if we were convinced that Hyman were correct about Coke—and, to be clear, we’re not—nothing of importance to our thesis turns upon this debate. It is with how Coke was understood by the American public that ratified the Fifth and Fourteenth Amendments with which we are primarily concerned in our Article. We aren’t interested in exploring Coke’s original intentions—we are focused on ascertaining the original meaning that those members of the American public who ratified the Fifth and Fourteenth Amendments most likely attached to the phrase “due process of law.”

For Hyman to undermine our claims about original meaning, he would have to parse the evidence we adduce in support of our argument that the phrases “law of the land” and “due process of law” were understood during the founding era to bind legislatures, even if Coke did not so understand either phrase; that both phrases were understood to guarantee both common-law procedural rights and the application of law, the content of which satisfied certain independent criteria for legality; and that these guarantees were originally designed to thwart governmental deprivations of life, liberty, or property that rested upon mere will rather than constitutionally proper reasons. He would have to explain why we’ve either drawn the wrong inferences from this evidence or adduce contrary evidence concerning original meaning. He would then have to do the same with our evidence that that due process of law became understood during the antebellum period to limit the ends in pursuance of which state legislatures could act when depriving people or life, liberty, or property. Whether Coke accurately understood Chapter 29 or the ratifiers of the Fifth or Fourteenth Amendments accurately understood Coke is irrelevant to the arguments that we make concerning original meaning.

Hyman acknowledges “there is some truth to the humorously cynical view that Coke’s mistakes were the common law.” Public meaning originalism requires that we take seriously the possibility that mistakes about what Coke wrote could have become part of the original communicative content of the Fifth and Fourteenth Amendments. We do not believe that we have misunderstood Coke, but Hyman quite possibly has misunderstood our discussion of his contribution to the due process of law.


Justice Alito versus Justices Gorsuch and Sotomayor on Original Meaning and Restitution
Michael Ramsey

On Monday the Supreme Court denied review in Hester v. United States, which posed the question:

Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

Justice Gorsuch, joined by Justice Sotomayor, dissented from denial of review, appealing in part to original meaning:

The ruling before us is not only important, it seems doubtful. The Ninth Circuit itself has conceded that allowing judges, rather than juries, to decide the facts necessary to support restitution orders isn’t “well harmonized” with this Court’s Sixth Amendment decisions. United States v. Green, 722 F. 3d 1146, 1151 (2013). Judges in other circuits have made the same point in similar cases. See United States v. Leahy, 438 F. 3d 328, 343–344 (CA3 2006) (en banc) (McKee, J., concurring in part and dissenting in part); United States v. Carruth, 418 F. 3d 900, 905–906 (CA8 2005) (Bye, J., dissenting).

Nor does the government’s defense of the judgment below dispel these concerns. . . . 

If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning. The Sixth Amendment was understood as preserving the “‘historical role of the jury at common law.’” Southern Union, 567 U. S., at 353. And as long ago as the time of Henry VIII, an English statute entitling victims to the restitution of stolen goods allowed courts to order the return only of those goods mentioned in the indictment and found stolen by a jury. 1 J. Chitty, Criminal Law 817–820 (2d ed. 1816); 1 M. Hale, Pleas of the Crown 545 (1736). In America, too, courts held that in prosecutions for larceny, the jury usually had to find the value of the stolen property before restitution to the victim could be ordered. See, e.g., Schoonover v. State, 17 Ohio St. 294 (1867); Jones v. State, 13 Ala. 153 (1848); State v. Somerville, 21 Me. 20 (1842); Commonwealth v. Smith, 1 Mass. 245 (1804). See also Barta, Guarding the Rights of the Accused and Accuser: The Jury’s Role in Awarding Criminal Restitution Under the Sixth Amendment, 51 Am. Crim. L. Rev. 463, 472–476 (2014). And it’s hard to see why the right to a jury trial should mean less to the people today than it did to those at the time of the Sixth and Seventh Amendments’ adoption.

Justice Alito responded, concurring in the denial of review: 

The argument that the Sixth Amendment, as originally understood, requires a jury to find the facts supporting an
order of restitution depends upon the proposition that the Sixth Amendment requires a jury to find the facts on
which a sentence of imprisonment is based. That latter proposition is supported by decisions of this Court, see United States v. Booker, 543 U. S. 220, 230–232 (2005); Apprendi v. New Jersey, 530 U. S. 466, 478 (2000), but it represents a questionable interpretation of the original meaning of the Sixth Amendment, Gall v. United States, 552 U. S. 38, 64–66 (2007) (ALITO, J., dissenting). Unless the Court is willing to reconsider that interpretation, fidelity to original meaning counsels against further extension of these suspect precedents.


The Border Wall and Presidential Emergency Powers (Updated)
Michael Ramsey

At Balkinization, John Fabian Witt (Yale) (guest blogging): National Emergencies, Then and Now.  From the introduction:

As most readers of this blog will have seen, President Trump said on Friday that he was considering declaring a national emergency to build a wall on the southern border, despite congressional refusal to fund such a wall.  On Sunday, the White House chief of staff confirmed the story, telling CNN’s Jake Tapper that the administration is well along in the planning stages of using presidential emergency powers to accomplish what Congress will not allow.  Today, Trump’s emergency proposal is the lead story in the news. 
Some critics, including my colleague Bruce Ackerman, have leapt too quickly to the conclusion that such a move would be lawless and might even subject wall-builders to criminal prosecution.  Others have claimed that it would be tantamount to tyrannical rule by decree and cited the Supreme Court’s 1953 decision reversing Harry Truman’s unilateral wartime takeover of the steel industry.  
The truth is that the White House’s emergency gambit reveals the full extent of Congress’s dangerous delegation of emergency powers to the executive branch of the federal government. Elizabeth Goitein of the Brennan Center has collected a daunting list of statutes authorizing emergency powers, which is super helpful on this point.  (Liza summarizes the statutes in a recent article at The Atlantic.)  The upshot?  Declaring a national emergency to build the president’s ridiculous wall would be a national embarrassment.  It ought to be unlawful, too.  But whether declaring a national emergency to build a wall actually is unlawful under current circumstances turns out to be much closer question than it should be.  The key statutory provisions are 10 U.S.C. 2808 (authorizing emergency reallocation of certain military construction funds) and 33 U.S.C. 2293 (authorizing emergency reallocation of certain civil works project funds). 
I’ll leave the analysis of these heretofore obscure statutes to others, since readers here are better positioned to do it than I am.  But as it happens I have a book out this spring from Yale Press on a theory of emergency power, based on a lost manuscript by political theorist, jurist, and Lincoln Administration insider Francis Lieber.  Historian Will Smiley and I found the manuscript in the National Archives and Yale Press is publishing an annotated edition of it, along with a long introduction by Will and me.  Not surprisingly, I think a bit of history from what is still the U.S.’s biggest constitutional emergency may help us see what has happened. ...
In my view the analysis is relatively straightforward and mostly in lines with that suggested by Professor Witt.  The Constitution does not provide the President with emergency powers.  The President has the constitutional powers he has, and may deal with situations (emergency or non-emergency) as they arise, using those powers.  One presidential power is command of the military, through the commander-in-chief clause.  So the President can direct the military to build fortifications, including presumably a wall on the southern border (subject to private property rights and federal statutes that may limit construction).  But the President cannot spend money on construction of the wall unless it has been approved by Congress under the appropriations clause.  Ordinarily that would mean the President would need to get Congress' approval for construction (in an emergency situation or otherwise).  But, as Professor Witt notes, Congress has delegated enormous power to the President by authorizing spending in general terms.  Constitutional restrictions on delegation are probably even weaker here than in other areas, so these statutes are likely constitutional.  And if they give the President power to redirect funds as the President chooses to respond to emergencies (as the President defines them), that would seem to give the President the power he needs.  As in many areas, the problem is likely not presidential overreach but congressional over-delegation.
UPDATE:  Robert Chesney (Texas) has a helpful "primer" on the matter at Lawfare, which confirms my intuition that this is a statutory issue not a constitutional issue.
FURTHER UPDATE:  David French at NRO:  No, Trump Can’t Use an Emergency Declaration To Build a Wall.


Seth Barrett Tillman on Chief Judge Eckerstrom on the Senate's Duty to Consider Supreme Court Nominees
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted On the Senate’s Purported Constitutional Duty to Meaningfully Consider Presidential Nominees to the Supreme Court of the United States: A Response to Chief Judge Peter J. Eckerstrom on SSRN.  Here is the abstract:

In a recent issue of the University of Pennsylvania Journal of Constitutional Law, Chief Judge Peter J. Eckerstrom defended the view that the United States Senate has a constitutional duty, arising under the Appointments Clause, to meaningfully consider presidential nominees to the Supreme Court of the United States. He characterizes such Senate consideration as “obligatory,” “mandatory,” and an “affirmative constitutional duty” as opposed to merely aspirational or directory. Broadly, speaking he puts forward three primary types of arguments or evidence in support of his position: [1] textual; [2] purposive analysis; and, [3] historical materials from ratification. Rather than critique Eckerstrom’s three modalities for understanding the Appointments Clause, I point out what Eckerstrom’s analysis lacks—a developed discussion of extant case law addressing this issue.

Chief Judge Eckertrom's article is here (noted on this blog here).

I agree with Professor Tillman's assessment of the post-ratification precedent, though I think the answer is plain just from the text.  The appointments clause doesn't say that the Senate "shall" do anything -- only that the President "shall" appoint if the Senate consents.


Washington Post Magazine Article on the Federalist Society
Michael Ramsey

In the Washington Post Magazine, reporter David Montgomery has this long (and relatively balanced) article about the Federalist Society and its influence on the courts in the Trump administration: Conquerors of the Courts -- Forget Trump’s Supreme Court picks. The Federalist Society’s impact on the law goes much deeper.  From the discussion:

But having allies on the highest court of the land is just the top layer of the Federalist Society’s expanding sway. For one thing, there is the judicial nomination process itself. When Trump was campaigning in 2016, he made the shrewd and un­or­tho­dox move of publicizing a list of 11 conservative legal stars that he promised to draw from if he got a chance to pick a Supreme Court justice. Leonard Leo, executive vice president of the Federalist Society, played a key role in suggesting the names, along with Trump’s future White House counsel, Don McGahn (also a society member), and the conservative Heritage Foundation. The list was expanded twice to include Gorsuch, Kavanaugh and others. Leo took a leave from his job at the Federalist Society to advise the White House on the confirmation process for Gorsuch and Kavanaugh — reprising a role he played for the George W. Bush White House in putting Roberts and Alito on the court.

The next most important segment of the judiciary — the federal appeals courts — is also filling up with Federalist Society members: Twenty-five of the 30 appeals court judges Trump has appointed are or were members of the society. “Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges,” McGahn quipped to a Federalist Society gathering in 2017. “That is completely false. I’ve been a member of the Federalist Society since law school. Still am. So, frankly, it seems like it’s been in-sourced.”

Kavanaugh, Gorsuch, Alito and Thomas are all at the banquet [the Society's annual lawyers convention in November] — a record turnout of Supreme Court justices for the annual affair. There’s also a trio of Trump’s once and future Justice Department leaders: Deputy Attorney General Rod Rosenstein (alumnus of the Federalist Society’s Harvard Law School chapter), recently fired attorney general Jeff Sessions (frequent society speaker) and acting attorney general Matthew Whitaker (recommended by Leonard Leo to be Sessions’s chief of staff). It’s as if the players in the recent melodramas surrounding the Justice Department are minor actors compared with the Federalist Society itself — which provides the enduring climate within which storms on the right come and go.

And from later on:

But more recently another liberal position has emerged, and it shows what the Federalists have achieved. This position might be summed up as: If you can’t beat them, join them — methodologically, at least. A number of liberal scholars have applied themselves to the task of showing how, in fact, originalist approaches can yield progressive results. As this train of thought has flowed out of the academy, liberal originalist logic is, more and more, showing up in legal briefs and even in Supreme Court dissents. Advocates of all stripes know they must be ready with textualist arguments because, thanks in large part to the work of the Federalists, it’s more likely than ever that the judge deciding a case will want to hear that perspective.

“For too long progressives were ceding that constitutional ground to the right and organizations like the Federalist Society,” says Elizabeth Wydra, president of the Constitutional Accountability Center, a progressive think tank and law firm that fashions originalist arguments. “When you actually look at the text and history of the entire Constitution, particularly focusing on the transformative amendments that were enacted in the wake of the Civil War, you really see an arc of progress that pushes our country toward inclusion, equality and greater democracy that tells a very different story from a lot of what the folks on the right, including the Federalist Society, would have you believe about our Constitution.” The CAC has made originalist arguments in favor of same-sex marriage, affirmative action and abortion rights. Its position is that those rights are guaranteed by a textual and historical understanding of the original meaning of the 14th Amendment’s equal protection clause. The CAC also is using an originalist reading of the foreign emoluments clause as it represents members of Congress who claim Trump is unconstitutionally benefiting from foreign payments.

(Thanks to Bob Gaglione for the pointer).


Congress's Power to Define "Natural Born" (Final Version)
Michael Ramsey

The final version of my essay Congress’s Power to Define “Natural Born”: A Response to Professor Lee (68 Am. U. L. Rev. F. 23 (2018)) is now available.  Here is the abstract:

Professor Thomas Lee and I independently wrote recent Articles on the original meaning of the Constitution’s “natural born Citizen” clause, reaching somewhat different conclusions.  This brief Response comments on our agreements and differences.  Two points of agreement merit particular emphasis.  First, we agree that the original meaning of “natural born” in the eligibility clause can be understood in significant part through its English law antecedents, specifically the English law concept of natural born subjectship.  Second, we agree on the basic evolution of English subjectship law—specifically, that it began in ancient times as almost exclusively based on the principle of jus soli, or subjectship arising from a person’s birth within sovereign territory, and evolved through a series of statutes to also include elements of the continental European principle of jus sanguinis, deriving subjectship from the subjectship of a person’s parents.  We principally disagree on how the Constitution, through the eligibility clause, adopted English law’s incorporation of jus sanguinis.  In Professor Lee’s view, the eligibility clause adopted English subjectship law’s definition of “natural born” largely as it stood in 1787.  My view, as described in more detail in The Original Meaning of “Natural Born,” is that the clause—combined with Congress’s power over naturalization—gave Congress some power to adopt and define the parameters of jus sanguinis citizenship, similar to parliament’s power to adopt and define the parameters of jus sanguinis subjectship in seventeenth and eighteenth century England.

And here is one of its central points, responding to a common criticism of my original article on the natural born citizen clause (footnotes omitted):

Professor Lee criticizes the view that would give Congress unlimited power to define natural born citizenship (including, for example, to convey it upon people with no connection to the United States at birth, and on the basis of actions taken long after birth).  Such unlimited congressional power, he argues, would be inconsistent with the clause’s purpose, which was to prevent people without life–long connections to the United States from becoming President. If Congress could declare anyone to be a natural born citizen, the eligibility clause would be effectively meaningless, or rather it would be an odd and awkward way of saying that Congress had plenary power to decide who should be eligible to be President.

I agree with Professor Lee on this point, and it is important to emphasize that I do not read the clause to have given Congress such an unlimited power.  As described in The Original Meaning of “Natural Born,” my view is that the Constitution gave Congress power to define which connections to the United States at birth (beyond birth within its territory) would be sufficient to establish natural born citizen status.  I do not contend that the Constitution gave Congress power to declare persons lacking connections to the United States at birth to be natural born citizens.  Thus, in my reading the original meaning of the eligibility clause had substantial limiting force consistent with the clause’s purpose to provide a constitutional restriction on eligibility.

My view of Congress’s power parallels Parliament’s practice in the seventeenth and eighteenth centuries.  During this time, Parliament passed a series of statutes declaring various groups of persons born outside sovereign territory to be natural born subjects.  The requirements for such status shifted from statute to statute, but a common element was that the persons made natural born subjects by statute had a connection to England at birth because at least one of their parents was an English subject. This practice was described at the time as part of Parliament’s naturalization power, and my conclusion is that it carried over to Congress’s naturalization power under the Constitution.


Michael Dorf, Precedent, and the Original Meaning
Mike Rappaport

Recently, Michael Dorf wrote an interesting post about originalism and precedent. Dorf’s post raises some significant points about this crucial area for originalists. Here I would like to explore and answer some of Dorf’s questions while explaining my own theory of precedent. My theory, which John McGinnis and I developed in our book Originalism and the Good Constitution, allows for a principled role for precedent while avoiding the problems raised by Dorf.

Dorf raises many important points. One is that many originalists do not have an integrated theory of precedent. They simply assume that any workable theory of constitutional law must have precedent, but they don’t explain why.

I agree here with Dorf. In fact, a failure to explain why precedent is allowed leaves some of these originalists vulnerable to the claim of the anti-precedent originalists—people like Gary Lawson and Michael Stokes Paulsen—who argue that the Constitution’s original meaning does not allow for nonoriginalist precedent, since only the Constitution, not precedent, is the supreme law of the land.

My theory of precedent has an answer to this issue. The short version is that the Constitution allows for precedent. It is part of the judicial power to decide cases in accordance with the law governing precedent. This provides a principled and textual explanation why precedent is allowed under originalism.

But what is the precedent approach that judges should follow? Here is where my position differs from what might be thought to be the originalist approach. Dorf appears to assume that originalists should follow the precedent approach that existed at the time of the Constitution’s enactment. But I disagree. Under my view, the judicial power indicates only that following precedent is consistent with the Constitution. It does not (with one minor exception) specify what precedent rules to follow. Instead, the precedent rules are a matter of general common law (or federal common law in modern parlance). Those rules can change over time in a way consistent with which the traditional common law changed. Moreover, the precedent approach can be changed by federal statute.

This is an important point. The Constitution’s judicial power need not be interpreted to require a particular precedent approach. For various reasons, interpreting it to require a particular precedent approach is not a persuasive position. To state just one: precedent rules depend on various circumstances that change over time and therefore they were unlikely to be baked into the Constitution (especially into a single phrase—judicial power).  Instead, the Constitution allows precedent, but does not specify the particular approach—the precedent rules are determined by other law, specifically the common law and congressional statute.

Dorf concludes his post by asking a host of questions about how one would determine what the framing era precedent rules were. The questions he asks are both good and difficult. But they do not have all that much relevance to my view. The precedent rules are not part of the original meaning. At present, they are part of the federal common law (until changed by Congress).


Elliot Mincberg on the Maryland Cross Litigation
Michael Ramsey

At The Hill, Elliot Mincberg (People for the American Way): Conservative Supreme Court could reverse decades of First Amendment law.  From the introduction:

The American Legion and its supporters recently filed initial briefs in The American Legion v. American Humanist Association, a Supreme Court case to be argued in February concerning the constitutionality of a four-foot, 90-year-old memorial cross displayed and maintained by a state agency in Bladensburg, Maryland. Depending on how the court rules, however, much more is at stake. ....

Specifically, even though the formal questions presented in the case relate narrowly to whether the Bladensburg cross violates the First Amendment’s Establishment Clause, the first legal argument in the American Legion’s brief proclaims broadly that “coercion, not endorsement, is the proper standard” to judge Establishment Clause claims. ...

And the originalist claim:

The best answers to these claims were provided by Republican-appointed Supreme Court justices years ago in response to efforts by Justice Antonin Scalia and others to adopt the coercion standard. In Lee v. Weisman(1992), Justice David Souter carefully demonstrated that the First Amendment’s history shows the Founders “extended their prohibition” to include government action that endorsed or promoted religion, not just coercion.

There's not much originalist analysis beyond this claim but it's notable that both sides in the litigation claim an origianlist foundation.

(Via How Appealing).


James Phillips & John Yoo on Originalism and Free Speech
Michael Ramsey

At NRO, John Yoo and James C. Phillips: ‘Free Speech’ Means Just That.  From the introduction:

Earlier this year, the Defense Department limited the right of the transgendered to serve in the military. Three federal courts blocked the policy for infringing the constitutional rights of the transgender individuals. One of the judges relied on the same clause of the Constitution as the cake maker who refused to bake a wedding cake for a gay marriage. The Supreme Court has invoked that same clause to defend the right to burn the American flag, dance in the nude, and make unlimited campaign contributions.

What is this constitutional catch-all? The free-speech clause.

The Supreme Court’s current law of free speech will perplex the ordinary American. After all, changing sex, making a cake, burning the flag, dancing nude, and contributing money have little in common, least of all speech.

The imperialistic expansion of free speech would not just surprise most 21st-century Americans; it would also make little sense to the 18th-century Americans who ratified the First Amendment. They would find it astounding that the courts have not just read speech to include many forms of conduct, but also have failed to establish any objective test for what constitutes speech. The Supreme Court appears to apply the perpetually malleable standard that emerged when it has sought to identify obscenity: It knows it when it sees it.


Seth Barrett Tillman on Richard Fallon
Michael Ramsey

Recently published, from Seth Barrett Tillman: Canonical Cases and Other Quodlibets: A Response to Professor Fallon, 97 Tex. L. Rev. Online 13 (2018).  Here is an excerpt (pp. 16-20):

Professor Fallon states:

The Lincoln Administration denied the court’s jurisdiction in Ex parte Merryman, but its position was debatable at best, tendentious at worst. A federal court had clear authority to issue the writ of habeas corpus unless entitlement to the privilege of the writ was validly suspended. [Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, 96 Tex. L. Rev. 487, 505–06 (2018) (emphasis added).]

The relevant constitutional provision here is the Suspension Clause, which provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” [U.S. Const. art. I, § 9, cl. 2.] As a textual matter, the clause does not address suspension of the writ (or even the suspension of habeas corpus simpliciter); rather, the clause speaks to suspension of the privilege. The two concepts are related, but they are not the same. Professor Fallon presumes that a suspension of the privilege suspends the writ. I cannot say he is alone in believing this. For our purposes here, whether or not the text is sufficiently clear is unimportant, nor does it matter what could be fairly established as a matter of original public meaning. What matters is simply this—the Supreme Court has addressed this issue.

In Ex parte Milligan, a unanimous Supreme Court stated: “The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course . . . .” [Ex parte Milligan,71 U.S. (4 Wall.) 2, 130–31 (1866) (Davis, J.).] Professor Fallon’s restatement of the law is not in tension with the Court’s opinion in Milligan; it is its antithesis. How can this be? Milligan is part of the received case law: it is, I believe, canonical. Fallon discusses Milligan in his own papers. Not only does Fallon take a position at odds with Milligan, but he does so without giving his readers a courtesy but see. Why? Is it because some consider Milligan’s phraseology “cryptic”? [Note, Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1265–66 (1970).] Perhaps, we might call this doctrinalism by “ink blot.”

It would be unfair for me to turn to other examples without first giving some (reasonably likely) explanation of what it means to suspend the privilege of the writ, as opposed to suspending writ itself. Congress can suspend the writ or the privilege of the writ or both. But a suspension of the privilege of the writ is a far greater power than suspending the writ itself. Indeed, it can be fairly said that suspending the privilege of the writ is a power greater than and substantially unlike any other power granted to Congress by the Constitution.

When a prisoner seeks to test the legality of his detention, he petitions a court for a writ of habeas corpus. The right he seeks to vindicate, even if a constitutional right, is inchoate. Congress has substantial control over this inchoate right because Congress controls the jurisdiction of the lower federal courts. Should the adjudication end, and the prisoner be awarded the writ, in normal circumstances, the jailor will release the prisoner. But when circumstances are not normal, e.g., during a civil war or insurrection, the jailer might err, or he might actively choose to resist the writ. At that juncture, round two begins—i.e., a contempt hearing against the jailer. (This two-stage process is substantively similar to what happened in [Ex parte] Merryman [and in Wolfe Tone’s Case [1798] 27 How. St. Tr. 613 (K.B.) (Ir.) (Kilwarden, C.J.), https://tinyurl.com/ycm2lyyx].) In round two, the court does not adjudicate the underlying right, i.e., the prisoner’s right to the writ—that was already decided in round one. Here, in round two, the prisoner merely moves into evidence (i.e., the evidentiary privilege of . . .) the writ, which had already been awarded in round one. A suspension of the privilege of the writ precludes the court from allowing the prisoner (in round two) to move into evidence the writ, which had already been awarded (in round one). Of course, where the privilege has been suspended, but not the writ itself, a court might (and, per Milligan, must) still issue the writ . . . but enforcement via contempt would not be possible. [Compare U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (emphasis added)), with Mass. Const. of 1780, pt. 2, ch. VI, art. VII (“The privilege and benefit of the writ of Habeas Corpus shall be enjoyed in this Commonwealth, in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding twelve months.” (emphases added)).]

In more functional terms, the suspension of the privilege of the writ nullifies (or, at least, suspends ad interim) a final judgment of a court. Here what is suspended is not an inchoate or abstract right, but a right that had been finally adjudicated and determined by a properly constituted and competent court with jurisdiction. That is why the Suspension Clause was an absolute necessity to the constitutional text. Given our separation-of-powers structured constitution, although Congress could withdraw the writ in cases not yet adjudicated, Congress—absent the Suspension Clause—could not withdraw the privilege in cases where the writ had already been awarded. That is because the sine qua non of independent Article III courts is that their final judgments (at least, after the conclusion of appellate review) are—final.

Professor Fallon and others might not agree with the conjecture I have put forward above; he or they might reject each and every claim made here. But whether my conjectures are correct or not does not get him or them off the (intellectual) hook: they still have to pick up the gauntlet. Our inquiry here is not about obscure and opaque eighteenth century constitutional text, i.e., the Suspension Clause, but about the holding of a canonical unanimous post-bellum prolix Supreme Court decision: Ex parte Milligan. Nonoriginalists are permitted to describe eighteenth constitutional text as an “ink blot.” But it is quite another thing to make a similar allowance in regard to a post-bellum Supreme Court opinion. Here, “ink blot” is not a sufficient answer. And if it is not a sufficient answer, why not look for other, better answers—in regard to both Milligan and the Suspension Clause’s text?


Joel Goldstein: Talking Trump and the Twenty-Fifth Amendment
Michael Ramsey

Joel K. Goldstein (Saint Louis University - School of Law) has posted Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4 (Journal of Constitutional Law, Vol. 21, No.1, 2018) on SSRN.  Here is the abstract:

The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some of the most challenging, traumatic and contentious contingencies that might arise involving an incapacitated President and the transfer of presidential powers and duties to the Vice President. The errors also might provide material for political actors and their supporters to cite and use opportunistically to frustrate the proper use of Section 4. This Article exposes and corrects some of the mistaken assertions that have recently appeared in media discussions. It explores a range of textual, originalist, structural, pragmatic, and other constitutional arguments to shed light on significant, but sometimes misunderstood, questions regarding the importance, scope, operation, and effect of Section 4.


Anita Krishnakumar & Victoria Nourse: The Canon Wars
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) and Victoria Nourse (Georgetown University Law Center) have posted The Canon Wars (Texas Law Review, Vol. 97, No. 1, 2018) [reviewing William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016) & Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts (2012)] on SSRN.  Here is the abstract:

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, Reading Law, and the other by Yale Law Professor William N. Eskridge, Interpreting Law. Both volumes purport to provide ways to use canons to read statutes and the Constitution. In this Review of Interpreting Law, we argue that this contemporary convergence on canons raises some significant interpretive questions about judicial power and the very idea of a canon.

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


Originalist Amicus Brief in the Maryland Cross Litigation
Michael Ramsey

In the American Legion v. American Humanist Association litigation at the Supreme Court, this Brief of Amici Curiae Religious Denominations and other Religious Institutions Supporting Petitioners has important originalist arguments.  Here is the summary of argument:

I.  A plain reading of the text shows that the Establishment Clause erects a jurisdictional bar to laws “respecting an establishment of religion.” For the founding generation, personal and historical experience invested this phrase with specific meaning. It included, most obviously, an official declaration that a particular church or religion was the preferred faith. Also embraced in that term were governmental intrusion into matters of church doctrine, governance, or personnel; compulsory participation in the rites and ceremonies of the established church; penalties on worship in dissenting churches or laws treating believers in those religions differently from believers in the established church; restrictions on political participation by religious dissenters; public financial support for the established church; and authorization for the established church to perform government functions.

Each of these attributes of an established church was not only likely to intrude upon the individual religious exercise of those who did not believe in the established religion, it also put the non-established faith communities at a substantial disadvantage. Thus, by prohibiting any law “respecting an establishment of religion,” the First Amendment’s Framers were protecting not just individual freedom, but non-established faith communities.

II. Most of the past and currently proposed legal standards for applying the Establishment Clause either misunderstand or ignore the Clause’s text and history, and for that reason threaten religious freedom. That is true, for example, of the “coercion” test offered by petitioner American Legion. To be sure, that test reaches the correct result here. But in some circumstances, adoption of that test would undermine the very freedom for religious institutions that the Clause was designed (in part) to protect: A statute authorizing a judge or other official to analyze religious texts to determine “the true Anglican doctrine” on a particular issue would be a flat violation of the Establishment Clause, even if the official’s conclusion triggered no government compulsion. See, e.g., Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion by Thomas, J.) (“It is well established *** that courts should refrain from trolling through a person’s or institution’s religious beliefs.”).

The American Legion is also mistaken in suggesting that the framework articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), should be thrown out entirely. Some aspects of that framework—specifically, parts of its “entanglement” analysis—are compelled by the Establishment Clause’s text and history and help protect the autonomy of religious institutions.

The American Legion is correct, however, in criticizing open-ended or subjective legal standards—such as the “endorsement” test and the generalized “purpose” and “effect” prongs of the Lemon test—as well as the plurality opinion and controlling concurrence in Van Orden v. Perry, 545 U.S. 677 (2005). None of those provides a sound general test for resolving Establishment Clause controversies, and none is consistent with the Clause’s text and history.

III. The proper test is suggested in this Court’s unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), and the majority opinion in Town of Greece v. Galloway, 572 U.S. 565 (2014). Both decisions indicate that the meaning of the phrase “respecting an establishment of religion” should be discerned by looking to historical practices and understandings at or near the founding period.

Thus, unless long-standing precedent already speaks definitively and consistently on a specific issue, see, e.g., Engel v. Vitale, 370 U.S. 421 (1962) (state composed public school prayer), application of the Establishment Clause should be driven by its text and what the founding generation understood it to mean. Specifically: A government action should be sustained against an Establishment Clause challenge unless history confirms that the founding generation understood such an action as an establishment of religion outright—such as the official formation of a national church—or as a legal attribute of a religious establishment—such as a law intruding into a church’s ecclesiastical affairs.

Applying this test, Maryland’s maintenance of the Bladensburg Cross does not remotely violate the Establishment Clause. Maintaining a nearly century-old war memorial at a busy intersection is hardly an official declaration in law that Christianity is the government’s preferred religion. And the small financial cost of its maintenance—for the benefit of an organization that is not even a church—is a far cry from the public support for established churches during and preceding the founding era.

(Thanks to James Phillips for the pointer).


Nelson Lund: The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries: Originalism, Current Doctrine, and a Second-Best Alternative (University of Pennsylvania Journal of Constitutional Law, forthcoming) on SSRN.  Here is the abstract:

The Supreme Court’s immigration jurisprudence is fundamentally misguided, in the sense that it has little basis in the original meaning of the Constitution. In this essay, I will explain why I think so, and what the Court might do to ameliorate the effects of its past mistakes without overruling a raft of settled precedents.

Part I analyzes the text of the Constitution, which offers a reasonably clear allocation of authority over immigration between the state and federal governments. The Foreign Commerce Clause empowers Congress to limit the entry of aliens onto American soil, and the Naturalization Clause authorizes Congress to set uniform criteria for admission to American citizenship. Nothing on the face of the Constitution permits Congress to displace the states’ residual authority over aliens, which includes the power to exclude or expel unsuitable persons from their own territory.

Part II reviews early debates in Congress about the scope and nature of federal power over immigration. There were important disagreements, some of which resemble today’s policy debates, but Congress generally refrained from going much beyond what the text of the Constitution pretty clearly authorizes.

Part III traces the evolution of Supreme Court doctrine. The Court began by rooting federal immigration authority primarily in the Foreign Commerce Clause, where it belongs, but then misinterpreted that Clause. In the late nineteenth century, the Justices made a dramatic and largely unexplained shift to a non-textual theory under which broad federal authority over immigration and aliens is treated as an inherent aspect of American sovereignty.

Part IV shows that this doctrinal shift may not have had much practical significance. In non-immigration contexts, the Court eventually interpreted the Commerce Clause itself in a way that gave Congress practically the same far-reaching authority that the inherent power theory bestows in the immigration field. Thus, even if the Court had stuck with the Foreign Commerce Clause as the primary source of federal authority over immigration, the result would likely have been much the same as what the Court has mistakenly put in its place.

Part V assumes that the Court is very unlikely to reconsider the well-established inherent power theory. In recent decades, however, the Justices have been experimenting with doctrinal devices designed to put some limits on the almost unlimited Commerce Clause authority that previous cases had mistakenly conferred on Congress. The paper concludes with two examples showing how these limiting doctrines can and should be used to resolve recent controversies in which some states have desired to pursue policy objectives to which federal officials object.


Kevin Walsh Reviews Joel Paul's "Without Precedent"
Michael Ramsey

At Law and Liberty, Kevin Walsh (Richmond): Without Evidence: Joel Richard Paul’s John Marshall (reviewing [harshly] Joel Paul, Without Precedent: Chief Justice John Marshall and His Times (Riverhead Books 2018)).  From the introduction:

Paul is a gifted writer and his engaging prose yields a pleasant read. But his portrait of Marshall as a man and jurist too often reflects repackaged conventional wisdom developed over the last century or so. It has neither the immediacy of the older eulogistic accounts by near-contemporaries nor the fresh perspective that can come from renewed and in-depth attention to primary sources in their historical context. The most significant new historical claim in the book—that John Marshall probably suborned perjury from his younger brother, James Markham Marshall, to embarrass the Jefferson administration in Marbury v. Madison—is as baseless as it is bold.

And in conclusion:

Although Paul is wrong about the extent of Marshall’s inventiveness, he is right about Marshall’s ultimate object and his greatest accomplishment. Paul contends in his book’s opening sentence that “no one did more than Marshall to preserve the delicate unity of the fledgling Republic.” And he echoes this theme of Marshall’s contribution to national unity at the end of his introduction: “In a revolutionary time, against myriad enemies both foreign and domestic, Marshall held the Court, the Constitution, and the union together.” Although he fumbles in describing Marshall’s means, Paul properly grasps Marshall’s end.

One reason that Paul and others of a progressive bent may have difficulty appreciating Marshall’s modus operandi is that Marshall’s methods were fundamentally backward-looking in form. To many today, such an approach implies narrowness of mind and a regressive mindset. But looking back and holding to earlier authoritative determinations made by those with legitimate political authority is precisely what Marshall’s understanding of the judicial role and his obligation of fidelity to positive law required. His characteristic way of providing, judicially, for the future was to anchor the decisions of his Supreme Court in the record laid down by the people of the United States in the past.

In rejecting this biography’s perpetuation of the Progressives’ mythical Marshall, we must be careful not to swing to the opposite extreme. While Marshall was not as inventive as Without Precedent would have us believe, he obviously possessed abundant legal ingenuity. As R. Kent Newmyer has written, Marshall operated by identifying himself with the Court, the Court with the Constitution, and the Constitution with the People. That is the creative Marshall that the jurist himself would have wished to see perpetuated.


Andre LeDuc Reviews Richard Fallon's "Law and Legitimacy in the Supreme Court"
Michael Ramsey

Andre LeDuc (Independent) has posted Toward a Reflective Equilibrium: Making Our Constitutional Practice Safe for Constitutional Theory (Southern California Law Review, 2018) on SSRN.  Here is the abstract:

Book Review: Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018)

Fallon departs from the traditional traces of our contemporary constitutional theory. He is redirecting us to new questions about the Constitution, the role of the Court, and the nature of the legitimacy of the Republic. By focusing on the foundations for the moral legitimacy of the Court and the Constitution, Fallon would shift our constitutional discourse away from the sterile debate over constitutional interpretation and originalism and other theoretical issues. That would be a signal achievement in its own right. By casting the discussion of legitimacy in the fundamental new terms that look expressly to our moral and political theory and our constitutional practice—rather than in the narrower, traditional terms of the countermajoritarian dilemma and the role of, and limits on, judicial discretion—Fallon tacitly challenges the dominant positivism that has informed both most originalism and the competing constitutional theories of originalism’s critics.

Fallon’s project is to move us beyond the current debates about constitutional theories of interpretation and his argument that the Court ought to adopt a process of pursuing a reflective equilibrium in its constitutional decision and constitutional practice in order to enhance the legitimacy of our constitutional law and the Court. The first strategy is commendable, but his proposed path reflects an unstated and misplaced commitment to the logical priority of theory. Fallon purports to articulate an account of constitutional practice, but he cannot cast off a fundamental commitment to the priority of concepts, theory, and interpretation. The second argument for a practice of reflective equilibrium may generate a more plausible account of constitutional adjudication than the dominant models in the legal academy, but Rawlsian reflection—even in the situated, historical, thick sense defended by Fallon—is not likely the path forward in understanding the nature of constitutional decision in adjudication or in enhancing the legitimacy of the Constitution and the Court.


Can the President Be Indicted?
Michael Ramsey

Following up on Andrew Hyman's post on indicting a sitting President, here are point/counterpoint posts from Laurence Tribe (Presidents can be indicted before impeachment) and Philip Bobbitt (Presidents cannot be indicted before impeachment).


The president and vice president run as a ticket. No president selects a vice president who wouldn’t strongly consider doing for him exactly what Vice President Gerald Ford did for President Richard Nixon: namely, give the president a full pardon shortly after he becomes the former president — whether that sudden reversal of fortune occurs upon the president’s being turned out by the voters, or upon his being impeached and removed, or upon his resigning under the threat of such ignominious removal.

It’s crazy to assume that the framers of the impeachment power would have created a system in which even the most criminally corrupt president could permanently escape full accountability. Immunized from criminal trial while serving in office (as the ostensible Justice Department policy would require), such a president could count on receiving a get-out-of-jail-free card upon his exit. For he would leave behind him a newly minted (albeit unelected) president wielding the power to pardon any and all “offenses against the United States.”

My aside: this argument seems historically ill-conceived.  The framers did not think the President and Vice President would run as a ticket.  That practice was implemented by the Jeffersonians in the election of 1800 and further entrenched by the Twelfth Amendment.  Had John Adams committed a crime as President, it's far from clear that Jefferson (his Vice President) would have pardoned him.  So the modern practice actually says nothing about the original design.  

But here's more from Bobbitt:

Professor Tribe’s argument depends on an artful reading of Article I, Section 3, which provides that “the Party convicted [by the Senate in an impeachment proceeding] shall nevertheless be liable and subject to indictment.”  The natural import of these words—their textual meaning to the ordinary reader—would assume, I think, that “the Party convicted” must be someone who has in fact been convicted, i.e., who has gone through an impeachment process prior to being subject to indictment.

Professor Tribe’s point, however, ignores the plain import of the text and relies instead on an implied intent. He believes that it would thwart the intentions of the framers—who clearly contemplated liability to indictment—if a president had to be convicted by the Senate first, because this would only bring to power his vice-president, who could be counted on to pardon the impeached president and thus render him immune from prosecution.

This argument depends upon some debatable assumptions. To begin with, it assumes that vice presidents, who must then serve out the disgraced president’s term, can be confidently counted on to pardon their predecessors. The example of Gerald Ford, which Professor Tribe cites, might go the other way: Ford’s re-election is widely assumed to have been doomed by his pardon of Richard Nixon, hardly an incentive to future vice presidents contemplating a pardon for a humiliated and disdained former president. Professor Tribe also takes for granted that if the new president were inclined to pardon his predecessor, he would abandon such a course of action if the impeached president were subject to an indictment. I see no basis for this conclusion, and it calls to mind the phrase “swallowing the camel and straining at the gnat,” for surely a successor who was willing to take the heat for pardoning his disgraced and impeached predecessor would not be deterred by the technicality that the predecessor was subject to an indictment. Indeed, presumably the current president must assume that an indictment is forthcoming in any event—otherwise, why pardon?

Finally, Professor Tribe assumes that the president’s crimes are not subject to state prosecution, for which a presidential pardon is ineffectual. In fact, ignoring the prospect of state prosecutions is perhaps the greatest vulnerability to Professor Tribe’s suggestion . . .

I think all of these arguments miss a central point. I don't think the Constitution's text precludes pre-impeachment indictment, but I think the Constitution's structure (as originally designed) precludes it as a practical matter.  First, as to text, Article I, Section 3, paragraph 7 seems to me to say only that if the President (or any federal officer) is impeached and removed from office, that person can still be criminally prosecuted.  That is, double jeopardy does not bar subsequent prosecution for the same offense that prompted the impeachment.  The text does not say anything one way or the other about whether criminal prosecution could precede impeachment.  Moreover, if Article I, Section 3 means that the President cannot be prosecuted prior to impeachment, it must also mean that no federal officials (including judges) can be prosecuted prior to impeachment.  (It does not say anything specific to the President.)  That reading seems at least somewhat unlikely.

I nonetheless agree with Andrew and Professor Bobbitt that the framers assumed a sitting President would not be prosecuted, at least by federal officials.  But Article I, Section 3 is not the reason.  Instead, that is a practical result of the original design, which placed all of the "executive Power" with the President.  Executive power, whatever else it includes, at minimum includes the power of prosecution.  Thus the President was given full control over federal prosecutions, including the power to decline to prosecute.  As a result, it would not have occurred to the framers that a sitting President would, in effect, prosecute himself.  (This assumption likely underlies Hamilton's comments in Federalist 69 and 77 that the President is subject to impeachment and then criminal prosecution).

The more difficult question is whether the President is subject to state criminal prosecutions.  Professor Bobbitt says "I cannot bring myself to believe that the U.S. Constitution would permit state grand juries to preempt the impeachment process by indicting presidents."  Perhaps, although Aaron Burr, as sitting Vice President, was charged at the state level after shooting Hamilton.  More importantly, if there is such a bar, it doesn't come from Article I, Section 3 (unless one thinks that no federal official can be prosecuted for a state law crime).


Eric Segall on Stare Decisis
Michael Ramsey

At Dorf on Law, Eric Segall: The Emperor's Stare Decisis.  From the introduction: 

On Wednesday of last week, Mike [Dorf] wrote a typically thoughtful post [Ed.: noted here] on the difficulties originalists (and others) have when determining proper standards for the Court to use when deciding whether to overturn prior cases. One of his conclusions, that "originalist acceptance of stare decisis very substantially constrains the role of original meaning in determining outcomes, even accepting the originalists' own premises," is I think exactly right. But Mike did not ask, nor try to answer, what I think is an antecedent question about the role of precedent in the Supreme Court: Does the doctrine exist at all apart from stylistic rhetoric that pops up from time to time in Supreme Court opinions? I think the answer to that question is important and obvious--no.

It is true that when the Court is asked to explicitly overrule a case, and the Justices want to, they will usually spend some time discussing a bunch of factors like reliance on the prior case or whether the original decision has been undermined by later cases before announcing the reversal. The dissent (there are almost always dissents in such cases) will then claim there were no "special reasons" for overturning the prior decision. These discussions are almost always simply after-the-fact rationalizations for conclusions reached on other grounds.

The reality, on the ground, is that whether by explicit reversals, or through slicing and dicing, or through subtle and clever factual and legal distinctions, the Court has reversed itself in virtually every major category of litigated constitutional law based on the values of the Justices sitting at the time. In my account below, I leave out the 4th through 8th Amendments because I am not an expert in those areas. This post is far more descriptive than I usually write, but at the end I'll make what I think are a few important substantive points and then pose a few questions. Nothing in this post suggests that lower court judges don't take vertical precedent seriously. As usual, I am writing just about the Supreme Court.


Lawrence Solum & Cass Sunstein: Chevron as Construction
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) and Cass R. Sunstein (Harvard Law School) have posted Chevron as Construction on SSRN.  Here is the abstract:

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.

Intuitively, I'm more comfortable with "constructions" that (as here) result in deference to other parts of government than I am with "constructions" that result in courts unilaterally overriding the decisions of other parts of government. 


Two Unanticipated Consequences of Straying from Original Meaning: Self-Pardons and Treating Taxes Like Excessive Fines
Andrew Hyman

Can incumbent presidents be indicted?  The Office of Legal Counsel has long answered in the negative.  Here’s how that office persuasively reasoned in the year 2000:

The Impeachment Judgment Clause provides:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

U.S. Const. art. I, § 3, cl. 7. The textual argument that the criminal prosecution of a person subject to removal by impeachment may not precede conviction by the Senate arises from the reference to the "Party convicted" being liable for "Indictment, Trial, Judgment and Punishment."  This textual argument draws support from Alexander Hamilton's discussion of this Clause in The Federalist Nos. 65, 69, and 77, in which he explained that an offender would still be liable to criminal prosecution in the ordinary course of the law after removal by way of impeachment.

Indeed, in Federalist 69 and 77, Alexander Hamilton was clear about the president not being indictable.  And here’s the thing: those exact same passages by Hamilton are equally clear that the president cannot pardon himself either.  If people now abandon the idea that the president cannot be indicted, they are inadvertently abandoning the idea that the president cannot pardon himself.  Such are the wages of abandoning originalism.

It is true that independent prosecutors in the past have sometimes concluded that a sitting president is indictable.  However, relying upon the 25th Amendment (ratified in 1967) to determine the meaning of what was ratified in 1789 but never subsequently amended, is not an originalist argument.  The “generally held view” is correct: sitting presidents cannot be indicted, and they have to first be impeached and convicted by the Senate.  My prediction is that any attempt to indict a sitting president will quickly lead to a self-pardon, and both things would conflict with the original meaning of the Constitution.

Another example of non-originalism potentially backfiring involves the current litigation to incorporate the Excessive Fines Clause against the states.  In view of the U.S. Supreme Court’s non-originalist opinion in NFIB v. Sebelius (regarding the constitutionality of the Affordable Care Act), fines are somewhat interchangeable with taxes.  I predict that, if the Excessive Fines Clause is incorporated against the states, and NFIB is not rendered obsolete, then eventually federal courts will start striking down state (not to mention federal) taxes as excessive.  In other words, the day is probably approaching when a tax will be construed as a fine levied for the offense of having more money than the government wants you to have, and the fine will be struck down under the Excessive Fines Clause.

Randy Barnett: After All These Years, Lochner Was Not Crazy — It Was Good
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) has posted After All These Years, Lochner Was Not Crazy — It Was Good (Georgetown Journal of Law & Public Policy, Vol. 16, No. 2, 2018) on SSRN.  Here is the abstract: 

For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.


New Book: "Almost Citizens" by Sam Erman
Michael Ramsey

Recently published, by Sam Erman (USC): Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (Cambridge University Press 2018).  Here is the book description from Amazon: 

Almost Citizens lays out the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898. As America became an overseas empire, a handful of remarkable Puerto Ricans debated with US legislators, presidents, judges, and others over who was a citizen and what citizenship meant. This struggle caused a fundamental shift in constitution law: away from the post-Civil War regime of citizenship, rights, and statehood and toward doctrines that accommodated racist imperial governance. Erman's gripping account shows how, in the wake of the Spanish-American War, administrators, lawmakers, and presidents together with judges deployed creativity and ambiguity to transform constitutional meaning for a quarter of a century. The result is a history in which the United States and Latin America, Reconstruction and empire, and law and bureaucracy intertwine.

This episode, and the whole sorry history of the Insular Cases' post-Spanish-American War abandonment of the Constitution, is another example of how non-originalism can depart from core constitutional values and reduce or eliminate what should be guaranteed rights.


Adrian Vermeule: The Publius Paradox
Michael Ramsey

Adrian Vermeule (Harvard Law School) has posted The Publius Paradox (forthcoming, Modern Law Review) on SSRN.  Here is the abstract:

At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued “[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators.” Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the “Publius Paradox,” that warrants great attention: Under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this “Publius Paradox,” I will turn briefly to its implications, the main one being that constitutional law should be cast as a loosely-fitting garment — particularly the executive component of the constitution and the scope of executive powers.


Michael Dorf on Originalism and Precedent
Michael Ramsey

At Dorf on Law, Michael Dorf: How Determinate is the Original Understanding of Stare Decisis?  From the beginning:

... [M]ost jurists who call themselves originalists do accept stare decisis. Scalia argued that doing so did not undermine his general approach because, he said, every interpretive approach must make room for precedent as an add-on. For reasons I've explored elsewhere, I don't think that answer quite works, but in any event, many contemporary originalists provide a different justification for adhering to precedent. As Justice Kavanaugh put it during the Gamble argument,  stare decisis was "part of the original understanding . . . rooted in Article III." Unpacking that a bit, he means that when Article III vests "the judicial power" in federal courts, it vests the traditional decision making tools, including the idea that judges should adhere to stare decisis. Kavanaugh said more or less that during his confirmation hearing as well.

As I understand the position of contemporary originalists who accept stare decisis, they accept stare decisis more or less in the same way as less thoroughgoingly originalists do: in deciding a case, if there's a valid precedent on point you follow it, absent special considerations. Kavanaugh said during Gamble that to overrule a precedent the Court must at least find that it is not just wrong but "grievously wrong, egregiously wrong." That strikes me as a more or less fair account of what the Court's cases have said about stare decisis (though perhaps not what the Court has uniformly done.) But there's a justificatory gap between accepting some version of stare decisis on originalists grounds and accepting the particulars of modern stare decisis doctrine. If the reason for accepting stare decisis in the first place is that it was part of the original understanding, that entails that an originalist jurist accepts the version of stare decisis that was accepted at the Founding, which might differ from the modern doctrine in various respects.

The most sophisticated version of the argument I've just laid out comes from Professors John McGinnis and Michael Rappaport, in advocating what they call "original methods originalism." To be sure, there are various other sorts of reasons why originalist jurists might accept stare decisis to one degree or another and in various circumstances. For an illuminating canvass of the relevant issues, I highly recommend Professor Lawrence Solum's recent essay in Constitutional Commentary reviewing Professor Randy Kozel's book Settled Versus Right: A Theory of Precedent. It's possible that various self-styled originalist judges might accept stare decisis for one or more of the reasons that Professor Solum discusses, but at least Justice Kavanaugh appears to accept it for McGinnis/Rappaport reasons: stare decisis is part of the judicial power of Article III.

But now we come to what strikes me as an important problem: The original understanding of stare decisis is under-determinative on many key questions. Here I'll pose a few of them ...


Michael Stokes Paulsen Reviews "To End a Presidency: The Power of Impeachment"
Michael Ramsey

In the current issue of the Harvard Law Review, Michael Stokes Paulsen: To End a (Republican) Presidency (132 Harv. L. Rev. 689 (2018)) (reviewing Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment (Basic Books 2018)).  From the introduction:

Alexander Hamilton foresaw it perfectly: impeachments of Presidents are by their nature political proceedings, conducted by political institutions exercising political judgment about the public wrongfulness of a President’s asserted misconduct. And built into that reality is the danger that presidential impeachments can become more about partisan loyalties than the merits of whether a President has engaged in serious wrongful conduct meeting the Constitution’s impeachment standard.


Professor Laurence Tribe and attorney Joshua Matz have reinvented a 230-year-old wheel: Hamilton’s insight that impeachments can tend to become mere low-partisan political affairs rather than faithful applications of a principled (if broad) constitutional standard calling for principled (if political) judgment. Ironically, Tribe and Matz not only reinvent this wheel: they demonstrate it in operation.

To End a Presidency: The Power of Impeachment has much to commend it and gets a lot of things right; I will not fail to give those points their due. This is a serious book on a serious constitutional issue, addressed to a popular audience at a serious moment in U.S. history: the explosive presidency of Donald Trump. It has the virtues of very good timing, some good insights, and a powerful case for the constitutional propriety of impeaching President Trump. The discussion of Trump’s wrongdoings, and why he is properly subject to the Constitution’s impeachment standard, is effectively done — carefully crafted, clear, not greatly overstated, and mostly persuasive. Those parts of the book rank among its best features. So too, the book’s treatment of the practical political unlikelihood of impeaching Trump is for the most part well done: Tribe and Matz make a convincing (if demoralizing) case for the political futility of impeachment as a meaningful check on Presidents’ wrongdoing today, a futility attributable to entrenched partisanship.

But the book suffers from two major flaws: First, it is itself rather badly partisan. Second, it is predominantly strategic. The book’s constitutional analysis serves chiefly as prelude to an essentially realpolitik account of what can be done with respect to the goal of removing Trump from office: be realistic about the slim prospects for success, hold your fire, wait for your moment, don’t endanger Democratic seats in Congress, and remember that premature talk of impeachment can backfire. But don’t wait too long, or the world might end.

The first problem is acute and pervasive. While the authors purport to offer a “neutral” set of criteria for presidential impeachments — and purport to decry partisanship — the book is partisan in ways large and small. Not only is Trump deserving of impeachment (a conclusion with which many Republicans might agree, with which I agree, and one that can be defended on politically neutral terms) but so too has nearly every Republican President since Richard Nixon likely engaged in impeachable wrongdoing deserving of at least serious investigation.10×10. See infra pp. 713–14. On the other hand, Bill Clinton’s impeachment for perjury and obstruction of justice — arising out of allegedly false sworn testimony in judicial proceedings and subsequent efforts to cover up that falsity — was “contemptible” (p. xvi) and explainable only as an act of merciless partisan and personal spite (pp. 21, 103, 177, 239). ...


In the remainder of this Review, I build on the themes and problems of Tribe and Matz’s analysis to address two larger questions concerning the relationship between the constitutional power of impeachment and the constitutional politics of its application.

First, what is the proper scope of the constitutional power of impeachment? What is the full range of meaning, the sweep, of the term “high Crimes and Misdemeanors”? To what types of misconduct by executive (and judicial) officers does it properly extend?

My thesis is that a careful consideration of the original, objective public meaning of the Constitution’s impeachment standard yields the conclusion that the impeachment power is extraordinarily broad, falling just short of plenary. Impeachment was regarded as an integral part of the Constitution’s system of separation of powers — a vital check in the hands of the legislative branch on believed executive and judicial misconduct. The Constitution’s original meaning supports a sweeping power of the two houses of Congress to remove officials for conduct they judge to be: in serious violation of the Constitution; an abuse or misuse of power lawfully possessed; a serious failure to perform the duties of office faithfully and responsibly; a betrayal of the public trust or compromise of vital national interests; corrupt conduct of any of a number of possible varieties; a serious criminal-law offense incompatible with continuance in public office; or other serious non-criminal personal misconduct.

In much of this, I occupy common ground with Tribe and Matz. But the constitutional bounds of the impeachment power extend further than the authors are willing to go. I will take issue, in particular, with their “Clinton Carve-Out” — the ways in which the authors deliberately depart from the Constitution’s original meaning to limit the scope of the impeachment power. The scope of that power is strikingly broad. Not all that it permits necessarily will be congenial to all political points of view or circumstances. But that does not mean we should jigger the meaning of a constitutional grant of power to reduce it to more desirable political proportions.

The second question builds on Hamilton’s concern: Given the breadth of the constitutional power of impeachment, what factors properly inform the constitutional judgment on the part of the House and Senate as to its proper exercise? How does one avoid the problem Hamilton anticipated — that of the political process of impeachment deteriorating into bare partisanship?

Here I will stake out an aggressively naïve position in even sharper disagreement with Tribe and Matz. Far from taking into account such considerations as whether a President retains popular support (pp. 21, 80, 102, 142–45); whether he is judged to pose an ongoing or prospective “danger of grave harm” (pp. 23, 42); the believed domestic or foreign policy implications of impeachment (pp. 100–02); the political or policy advantages or disadvantages of retaining the President (pp. 70–71, 80, 238); the believed partisan motives of one’s political opponents (pp. 70, 177); a tactical assessment of the likelihood that an impeachment will succeed in conviction and the dangers posed by failure (pp. 80, 191–99, 236–38); and who would be the removed President’s successor (p. 149), I submit that the impeachment judgment is properly concerned with none of these things but solely with the question whether the wrongs committed are themselves sufficiently serious wrongs as to warrant exercise of the impeachment power. ...

Tribe and Matz respond (harshly) in the Harvard Law Review Forum:  To (Pretend to) Review Our Book (132 Harv. L. Rev. F. 78 (2018)).

Also of interest on this topic in the Forum, Nikolas Bowie:  High Crimes Without Law (132 Harv. L. Rev. F. 59 (2018)) (arguing, contra both Tribe/Matz and Paulsen, that impeachment for "High Crimes and Misdemeanors" requires an actual crime to have been committed, not merely misconduct in office).