It’s Not Bad Textualism, It’s Much Worse: It’s Bad English
David E. Weisberg

This note concerns the Sexual-Orientation-Gender-Identity (SOGI) Title VII cases recently argued before the Supreme Court, and specifically Prof. Richard Primus’ article in Politico: "The Supreme Court Case Testing the Limits of Gorsuch’s Textualism," which has also been commented on by Prof. Ramsey here.

Title VII prohibits employment discrimination “because of [an] individual’s … sex”.  Prof. Primus asserts: “The logic is pretty simple. If a male employee is fired because he has sexual relationships with men, but female employees in the same workplace can have sexual relationships with men without getting fired, then the male employee was fired ‘because of [his] sex,’ inasmuch as he would not have been fired had his sex been different.  The same is true of a woman assigned female at birth who is fired because she lives as a man.”  He goes on to say that the text of Title VII, “read literally, covers LGBTQ scenarios.”

Prof. Primus’ “pretty simple” logic is grievously flawed.  His fundamental mistake is to conflate (a) the truthful, correct answer to a question, and (b) statements that can serve to clarify that answer.  He believes that any statement that clarifies an answer is itself “literally” an answer.  Not so.

A man is asked: “Why didn’t you get the job?”  He answers: “I’m a man, and they rejected me because of my sex.”  Any competent English speaker would understand that answer to mean that the employer doesn’t hire men (or doesn’t hire men for the job the applicant sought).  If the applicant was rejected for homosexual behavior, then his answer was false.  If he were under oath and his answer related to some material factual issue, he would have perjured himself.

Suppose the applicant answers: “I was rejected because I’ve engaged in homosexual activity.”  His interlocutor might ask: “What is homosexual activity?”  An explanation of what constitutes homosexual activity would certainly refer to the sex of the partners, but that does not imply that a reference to the applicant’s sex is a correct answer to the question: “Why didn’t you get the job?”  The applicant is a man; he couldn’t engage in homosexual behavior unless he had sexual relations with another man.  Nevertheless, if he was rejected because of homosexual activity, he cannot correctly or truthfully say he was rejected because of his sex.

The same is true with regard to Prof. Primus’ second example.  A female applicant says, “I’m a woman, and they rejected me because of my sex.”  Any competent English speaker would understand this to mean that the employer refuses to hire women (or refuses to hire women for the job the applicant sought).  Therefore, if the applicant was rejected because she lives as a man although her birth certificate assigns her as female, then the answer she gave was not “literally” true or true in any other sense; it was false. 

The female applicant was rejected because she lives as a man.  If someone asks, “What does it mean for a woman to live as a man?”, the answer certainly would refer to the woman’s sex.  But that does not mean that a simple reference to her sex is a correct, truthful answer to the question: “Why didn’t you get the job?”

The illogic of Prof. Primus’ position actually generates a reductio ad absurdum.  If it were correct to say the male employee was fired “because of his sex,” then it would be equally correct to say he was fired “because of his partner’s sex.”  That is, if his partner’s sex had been female rather than male, the employee would not have been fired.  No one embraces the self-contradictory position that, if an employee is fired because of his partner’s sex, that means the employee was fired because of his own sex.  Therefore, in firing the male employee, the employer simultaneously violates Title VII (inasmuch as the employee was fired “because of his sex”) and does not violate Title VII (inasmuch as the employee was fired “because of his partner’s sex”). 

Similarly, if a woman is fired because she lives as a man, it would be just as correct to say that she was fired “because she lives as a man” as it would be to say that she was fired “because she is a woman”.  But Title VII doesn’t prohibit firing an employee who has a particular hair style, or wears certain clothes, or insists on being referred to with a particular prefix.  So, in firing the female employee, the employer simultaneously violates Title VII (inasmuch as she was fired “because of her sex”) and does not violate Title VII (inasmuch as she was fired “because she lives as a man”).  These results—where an employer simultaneously violates and does not violate Title VII—are absurd.   

If an employee is fired because of homosexual conduct, then he or she was fired because of his or her behavior, not because of his or her sex.  If an employee is fired because he or she lives as another sex, then he or she was fired because of his or her behavior, not because of his or her sex.  It should not come as news to anyone that that’s how the word ‘because’ works.

Burlette Carter: Can a Sitting President Be Federally Prosecuted? The Founders' Answer
Michael Ramsey

W. Burlette Carter (George Washington University Law School) has posted Can a Sitting President Be Federally Prosecuted? The Founders' Answer (62 Howard Law Journal 331 (2019)) (69 pages) on SSRN.  Here is the abstract:

Can a sitting U.S. President be federally indicted or prosecuted? Exploring the history of impeachment and prosecution in (1) England and Great Britain, (2) colonial America, and (3) the states immediately after independence--and comparing these to the Founders' Constitutional discussions--this article considers how the Founders would have answered that question, were it posed to them today. Deviating from most analyses of the problem, it argues that the Founders would have viewed the question as jurisdictional, involving a conflict between Courts of Law on the one hand, and the Congress -- operating as a High Grand Jury (the House) and a High Court of Impeachment (the Senate) -- on the other. They would have said that Congress, when operating in its impeachment role, has sole jurisdiction over removing a U.S. President for misbehavior. At the same time, they would have said that they gave to Courts of Law, concurrent power to hear cases involving crimes and misdemeanors, so long as the cases do not involve a removal. And so they would have answered our question with a question: Does the threatened action against the President risk removing the President, either directly or constructively? They would have believed that any criminal judicial order affirmatively or negatively enjoining powers specifically delegated to the President under the Constitution would shift those powers to others and, therefore, would be an impermissible removal attempt. Congress could insert itself into such proceedings to protect the Presidency (and, to remove or protect a President), but even if it does not, no federal court has jurisdiction to enforce such a removal order and, therefore a federal prosecutor also has no power.

Consistent with British impeachment history, the Founders would have viewed the proper issuance of Articles of Impeachment as a jurisdictional act that signaled Congress' intent to actively intervene. The adoption of such Articles would automatically stay any contrary proceeding in or related to Courts of Law, including a federal investigation and the operation of a federal grand jury. Moreover, the Founders would have said that a President has the power to fire a prosecutor if the President appointed the prosecutor. And while a President can be impeached for obstructive behavior, the Founders would have said that a President cannot, after an impeachment, be prosecuted for statutory obstruction of justice, if that prosecution is based on the exercise of powers delegated to the President under the Constitution.

The Founders would have recognized that, before the formal issuance of Articles of Impeachment, Courts of Law have the power to stay their own proceedings against a President for good cause, just as English/British common law courts with concurrent jurisdiction always could. And they would have have accepted that Courts of Law can, in the first instance, decide evidentiary issues such as executive privilege. Again, despite Parliamentary power over impeachment, common law courts had long done so in England and Great Britain, so long as they otherwise had jurisdiction.

This jurisdiction-focused answer from the Founders, on whether a President can be federally prosecuted, balances the interest in law enforcement in a given case with the larger interest of the nation in protecting the people's investment in the Presidency. It allows prosecutors to investigate the behavior of a sitting President--up to a point. On the other hand, it not only authorizes but requires that prosecutors, sworn to uphold the Constitution, exercise prosecutorial discretion in determining whether or not to mount an investigation of a sitting President and how far to take it through the Courts of Law. And it requires that Courts of Law accept the limits of their own jurisdiction when proposed injunctions or orders would threaten a removal.

The article sets forth the broad outlines of presidential removal doctrine and its jurisdictional ties. The focus is on the powers of federal prosecutors and federal courts in criminal proceedings vis a vis the President. It does not deal with the definition of high crimes and misdemeanors or other impeachment-related questions. While some of the arguments presented here might possibly apply to other types of proceedings against a President, including state prosecutions, this article focuses on federal prosecution.


Rafi Reznik: The Rise of American Conservatism in Israel
Michael Ramsey

Rafi Reznik (SJD candidate, Georgetown University Law Center) has posted The Rise of American Conservatism in Israel (8 Penn State Journal of Law and International Affairs (2020)) (forthcoming) (63 pages) on SSRN.  Here is the abstract:

In the United States, the link between interpretive methodology and political ideology has generated a massive yet largely idiosyncratic body of scholarship. This Article offers a comparative case study, which converses with the American example – Israel. A twofold argument is offered to facilitate this conversation. First, a current shift in the ideological climate of the Supreme Court of Israel is identified, manifested in the rise of a new interpretive method. Never before has a comprehensive alternative been offered to the interpretive theory prevailing in Israel, Purposive Interpretation, which is conceptually and historically tied to American liberal theories. The Article unpacks the challenges posed by the new theory, termed Purposive Originalism, in methodology as well as underlying understanding of democratic principles. While elevating the role of legislative history, an interpretive device associated with liberal judges in the U.S., Purposive Originalism nonetheless deeply resonates American conservatism, espousing variations on originalism, bright-line rules and deference. Second, it is contended that this development should be understood as part of a broader ideological reorientation of the political right-wing in Israel, toward American conservatism. Increasingly drawing on the philosophies, policies and strategies of its American counterpart, the Israeli Right has adopted the compound of social traditionalism, neo-liberal economic policy and hawkish national security stance, as well as discontent with the administrative state, synthesized under the headline of conservatism. An interpretive methodology that strives for the same values enshrined in this political project fulfills a vital role in its success. Such a convergence of judicial and political reinterpretations of conservatism marks the current historical moment in Israel a recreation of the dynamics that emerged in 1980s U.S., with an all-encompassing conservative backlash against legal liberalism. The Israeli case thus reveals how American conservatism can be, and is indeed, incorporated into different cultural and constitutional settings.



Bad Textualism (Again) [Updated]
Michael Ramsey

At Balkinization, Richard Primus argues that, under a textualist interpretation, the President could be impeached for matters in addition to high crimes and misdemeanors: It Doesn’t Say “Only”: A Textual Point About Impeachment.  He argues:

Article II, Section 4 of the Constitution reads as follows: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  As a matter of practice, people have taken that language to state the exclusively valid grounds for removal.  On that understanding, someone who has committed neither treason, nor bribery, nor a high crime or misdemeanor is not subject to impeachment.  In other words, everyone speaks as if Article II, Section 4 said that the officeholders specified shall be removed from office only on impeachment for and conviction of those offenses. 

But the word “only” does not appear in the text.  Read strictly, Article II, Section 4 does not purport to define the exclusive grounds for impeachment and removal.  If its language is given its most natural meaning, Section 4 specifies scenarios in which removal shall follow from impeachment and conviction, but it does not say that there are no other grounds for impeachment and removal than the ones specified.  The text might be saying “In cases of treason, bribery, or high crimes and misdemeanors, impeachment and removal are warranted,” while saying nothing about whether Congress also has the discretion to impeach and remove in other circumstances.  In other words, the function of the Clause might be to rule certain grounds for impeachment and removal in, not to rule everything else out.   

In a prior post I raised some doubt about Professor Primus' supposedly textualist interpretation of Title VII.  Here I'll go further and say this argument is simply bad textualism.

The question is whether the high crimes and misdemeanors clause (Art. II, Sec. 4) implies that it is exclusive.  The answer is: of course it does.  Otherwise, there would be no point to it.  He says that its purpose might be to clarify that high crimes and misdemeanors are a ground for impeachment, not that they are the only ground.  But if one reads the impeachment clause of Article I, Section 2 to license impeachment without limitation (as he must, else there is no source of an impeachment power), then there is no point in saying that some types of impeachment are authorized.  The high crimes and misdemeanors clause only makes sense as a limitation (or, one might say, a limited authorization).

There's a handy canon of construction that helps out here -- expresio unius est exclusio alterius (the negative implication canon).  Where some grounds for impeachment are mentioned, others are excluded by implication.  (E.g., "Dogs on leashes are permitted" means dogs not on leashes are not permitted; "You kids can have dessert after you finish your dinner" means kids cannot have dessert before dinner.)

Professor Primus anticipates this objection and responds:

But compare the last section of Article II, which discusses impeachment, with the last section of Article III, which discusses treason.  The language of Article I, Section 3 [ed.: a typo; he means Article III, Sec. 3] begins as follows:  “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”  (I’ve italicized the word “only.”)  Here, the Constitution’s text specifies that it is providing the sole grounds for treason convictions.  When it wants to, the Constitution is perfectly capable of saying “only.”

I'm thoroughly unpersuaded.  The use of "only" one place in the Constitution overturns (indeed, apparently reverses) the expresio unius canon for the entire document?  So the President can appoint Justices without the consent of the Senate?  (Art. II, Sec. 2 says he can appoint them with the advice and consent of the Senate, but it doesn't say "only").  Federal courts have jurisdiction over all manner of cases, not just those specified in Article III, Section 2?  (Art. III, Sec. 2 says "[t]he judicial Power shall extend to ..." but it doesn't say "only").  The President can rule by decree?  (Art. I, Sec. 1 says all legislative power is vested in Congress, but it doesn't say it is vested "only" in Congress).  To the contrary, the entire Constitution is premised on expresio unius (so that it doesn't have to repeat "only" about a hundred times).

The use of "only" in the treason clause is entirely understandable from context.  Treason had been defined much more broadly in English law, including imaging ("encompassing") the death of the king.  The Constitution's framers wanted to be especially clear that they were rejecting that broad version of treason (luckily for some people today!).  So the "only" in the treason clause is belt-and-suspenders, not leaving it (as elsewhere) to negative implication.  It's not a rule of construction for other clauses.

But even without the context, it's clear from other parts of the document that the drafters repeatedly used negative implications, notwithstanding the "only" in the treason clause.  Thus it seems overwhelmingly likely that the high crimes and misdemeanors clause should be read with a negative implication, especially given the implausibility of reading it the other way.

I'd bet there's not a single self-identified textualist judge or scholar in the country that would read the high crimes and misdemeanors clause as Professor Primus suggests -- which itself suggests that he isn't doing it right.

UPDATE:  Scalia and Garner have a good discussion of exclusio unis in Reading Law, pp. 107-111.  Among other things, they caution against going too far with it: "'No dogs allowed' cannot be thought to mean that no other creatures are excluded -- as if pet monkeys, potbellied pigs and baby elephants might be welcome."  They also give an example that seems quite a bit like the impeachment example:

Consider United States v. Giordano, decided by the Supreme Court of the United States in 1974.  A statute established procedures for obtaining court orders authorizing the interception of wire and oral communications.  It said that the "Attorney General ... or any Assistant Attorney General ... specifically designated by the Attorney General" could authorize application for such orders.  In Giordano's case, it was the Attorney General's executive assistant who applied for the court-authorized wiretap. Hence Giordano argued that the conversation to be used as evidence had been "unlawfully intercepted" and should be suppressed.  A unanimous Court agreed with him: The statute named two types of high-ranking officials -- and all other were excluded.


Cert Granted in CFPB Removal Case
Michael Ramsey

The Supreme Court has granted cert in Seila Law LLC v. Consumer Financial Protection BureauThe issue is: 

Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers.

The Court also asked the parties to brief whether the removal provision can be severed from the rest of the statute creating the CFPB.

As noted, I joined an amicus brief on behalf of "Separation of Powers Scholars" -- but really, on behalf of originalist separation of powers scholars -- written by Ilan Wurman of Arizona State law school, encouraging the Court to grant cert (along with Steven Calabresi, Michael McConnell, Saikrishna Prakash, Jeremy Rabkin and Michael Rappaport).  Here is the introduction:

The for-cause removal provision respecting the director of the CFPB creates an unprecedented concentration of unsupervised executive power, threatens the separation of powers and democratic accountability, and is unconstitutional. The Constitution vests the executive power in the President of the United States. U.S. Const. art. II, § 1 (“The executive Power shall be vested in a President of the United States of America.”). Whatever else this power includes, at a minimum it includes the power to appoint, control, and remove principal executive officers. To be sure, the Constitution assigns some of this executive power away from the President: Article II, Section 2 gives the Senate a share in the appointment power. But other than the Constitution’s specific assignments away from the President, the executive power of the laws rests with the President. The Take Care Clause supports this structural inference, implying that the President has that species of power—the ability to direct and remove officers—to ensure the faithful execution of the laws. Id. § 3 (“he shall take Care that the Laws be faithfully executed”).

Two important sources confirm that the power to remove executive officers was part of the “executive power.” William Blackstone, whose Commentaries on the Laws of England guided the Framers’ drafting of the Constitution, included within his conception of “the executive power of the laws” the power to conduct prosecutions, to issue proclamations binding on subjects (and, therefore, subordinate officers) as to how the laws are to be executed, and to appoint assistants—strongly suggesting the power to direct and remove subordinate executive officers engaged in the kind of enforcement function at issue in this case. Further, the First Congress concluded that, although not expressly mentioned in the Constitution, this removal power was constitutionally vested in the President because it was part of the executive power—an inference supported by the Take Care Clause. 

But as also noted, cert seemed inevitable once the Fifth Circuit found a single-director for-cause agency unconstitutional in a separate case.  Also the CFPB filed a brief finding itself unconstitutional (so the argument for constitutionality will be presented by an appointed counsel).

John McGinnis on the Contracts Clause
Michael Ramsey

At Law & Liberty, John O. McGinnis: Reviving the Contract Clause: An Acid Test for Originalism.  From the introduction:

Whether the Contract Clause will be restored as a protection for private property rights provides an important benchmark for the success of originalism. The Clause was the most litigated provision of the Federal Constitution in the 19th century, but today it has become a shadow of its former self because the Court has abandoned its original meaning. It is difficult to overrule some Supreme Court decisions, even when egregiously wrong, because people have come to rely on them or because essential institutions have grown up around them. But the Contract Clause by its term applies only to new laws that undermine established obligations and does not implicate substantial reliance or other institutional interests. No sound theory of stare decisis should protect the decisions that have distorted its meaning.

And on a pending case: 

Only the Supreme Court can overrule its prior Contracts Clause jurisprudence. But lower courts should read non-originalist precedents where they are ambiguous to preserve as much of the original meaning as possible. That was the approach of Judge Steve Colloton joined by Judge David Stras in the recent case of Association of Equipment Manufactures v. Burgum. North Dakota had prohibited manufacturers of farm equipment from requiring delay to maintain exclusive facilities, “unreasonably” refusing to approve the relocation of dealerships, or imposing “unreasonable” performance standards on dealers. The provisions were to apply retrospectively, substituting for contractual terms agreed upon by farm equipment manufacturers and their dealers.

The majority opinion held that that the North Dakota statute worked an impairment, suggesting that even if North Dakota has previously regulated some aspects of the contractual relationships, the statute imposed additional or expanded regulations. Most importantly, it rejected the argument that these provisions were in the public interest over a dissent that suggested that state action should be presumed in the public interest, and that while the law helped farm equipment dealers at the expense of manufacturers, it would also redound to the benefit of farming communities.


It is also clear that the majority recognizes the original meaning of the Contract Clause, because it spends substantial space discussing it before turning to Supreme Court precedent. As in other cases by lower court originalist judges, the original meaning is not forgotten but is used to favor the more originalist readings of Supreme Court precedents when, as it often the case, the differences among them and indeed their ambiguity considered even individually would otherwise leave discretion with lower court justices.

In conclusion:

The [Borgum] case would be a good vehicle for the Court to reexamine its Contract Clause jurisprudence. ... [It] presents an undoubted impairment that would permit the Court to restore the Clause to its important place in the Constitutional firmament as an expression of the American commitment to private ordering and the rule of law.



Textualism and Sexual Orientation Discrimination
Michael Ramsey

Academic commentators having been arguing that a commitment to textualism should impel Justice Gorsuch to support the plaintiffs in the Title VII sexual orientation discrimination cases.  Richard Primus (Michigan) makes the argument in Politico: The Supreme Court Case Testing the Limits of Gorsuch’s Textualism (with the subhead "If the justice rules against LGBTQ protections, he’ll be admitting that, deep down, he knows his judicial philosophy is deeply flawed."). From the introduction:

[N]obody thinks that Congress in 1964 intended to ban workplace discrimination against LGBTQ persons when it prohibited discrimination “because of … sex.” But the words of the law turn out to do so, regardless of what Congress had in mind. The question before the Supreme Court, therefore, is what prevails when the text of a statute does something that the legislature that passed the statute did not have in mind—and would not have endorsed.

The justice to whom that question is posed most sharply, and who may well cast the deciding vote in these cases, is Justice Neil Gorsuch. Gorsuch may find himself pulled in different directions by two of his strong jurisprudential commitments. On one hand, he generally thinks that courts should not be engines of social change, including by expanding the reach of antidiscrimination laws. Those sorts of changes, he believes, should come from legislatures. But on the other hand, Gorsuch is a proud and articulate textualist. In his oft-repeated view, a court applying a law passed by a legislature should be governed by what the words of the statute actually say, regardless of whether the court thinks the words of the statute embody good public policy. Nor should courts let the meaning of statutory text be overcome by considerations about the general purposes of the law or what members of the legislature said or thought during the lawmaking process. What matters is the text of the statute. And the text that Congress adopted, read literally, covers LGBTQ scenarios.

I think this misunderstands textualism, at least the Scalia-Gorsuch version.  The textualist question is not the meaning of the text in the abstract without reference to context (what Scalia dismissively called "wooden literalism") but rather the meaning of the text within the context in which it was adopted.  The question is what the words meant at the time, not what they mean today.

In considering this question, it is surely relevant to consider what people at the time of enactment thought the words meant.  It's not conclusive, but it's strongly indicative.  Indeed, textualist originalists do this routinely when thinking about the meaning of constitutional phrases, and older statutes should be treated similarly.

Thus it is relevant, not that the enacting Congress did not intend to ban sexual orientation discrimination, but that Congress did not think its text had banned sexual orientation discrimination (nor, so far as I know, did anyone else at the time).

Indeed, the idea that a prohibition on discrimination on the basis of sex is "literally" a ban on sexual orientation discrimination seems a very recent discovery (even though sexual orientation discrimination has a long and sad history).  As Charles Lane observes in this account of the case, A more appropriate target for the LGBTQ discrimination case: Mitch McConnell, "Congress for decades after 1964 acted as though it had not banned job discrimination against LGBTQ people. Starting in 1974, lawmakers repeatedly introduced bills to add sexual orientation to Title VII, including in almost every session after 1994. ...  If Title VII’s reference to “sex” already incorporated sexual orientation and gender identity, then all of this was just wasted effort — as were state nondiscrimination measures." (State nondiscrimination laws routinely ban discrimination on the basis of sex and and on the basis of sexual orientation).

Further, the proposed Equal Rights Amendment would have banned discrimination "on account of sex."  All sorts of fanciful sky-will-fall arguments were brought against the proposed Amendment, but as far as I know opponents did not seriously claim the Amendment would ban sexual orientation discrimination (and if they had, I'm sure its proponents would have sharply denied it).  And when the issue of sexual orientation discrimination first came to the Supreme Court in Bowers and Lawrence, it was not thought that the Court's prior decisions invalidating sex discrimination made these easy cases.

So this is not a situation merely of Congress not thinking carefully about the text it was enacting.  It's a situation of essentially no one for decades after the enactment thinking the text had the meaning Professor Primus now thinks is self-evident and unambiguous.  (And, I assume, there's also no record of anyone prior to the enactment thinking that sex discrimination included sexual orientation discrimination).

I would not say that evidence of this sort should always be conclusive for a textualist (although it's surely relevant).  It's possible that a text could be so clear that no amount of contrary contemporaneous understanding could overcome its literal meaning.  But in this case the text seems to be not as clear as Professor Primus contends.  As commentators including Ed Whelan (at Bench Memos) and Paul Mirengoff (at Powerline) -- and Andrew Hyman on this blog -- have argued, discrimination on the basis of sex might just mean narrowly discrimination against women (or men) for being women (or men).  Indeed, they argue it self-evidently means this.  But one need not go that far in order to find the evidence of contemporary understanding highly persuasive.

In sum, looking at the way a statutory phrase was consistently interpreted at the time of its enactment is not contrary to textualism; it's part of textualism (or rather, it's part of textualist originalism, which is what Justice Gorsuch embraces).  How much the contemporaneous understanding should count, and how clear an apparently contrary text must be, are questions of degree that may divide textualists.  But in any event I do not see that Justice Gorsuch's principles oblige him to favor the plaintiffs.


The Speech of Jacob Howard, the Prevalent Rights Theory, and the Decision in Brown v. Board of Education
Earl Maltz

[Ed.:  For this guest post we welcome Earl M. Maltz, Professor of Law at Rutgers Law School.]

In a recent post, Andrew Hyman disputes the claim that originalists should adopt what Michael Rappaport describes as the prevalent rights theory of the Privileges or Immunities Clause of the Fourteenth Amendment.  However, Hyman fails to cite the explanation of the scope of section one that was given by Jacob Howard at the time that the amendment was introduced in the Senate.

For a number of reasons, Howard’s explanation is of crucial importance to any effort to understand the original meaning of section one. First, the speech provided the only really detailed analysis of the scope of section one during the congressional debates over the Fourteenth Amendment.  Second, Howard was not speaking only in his individual capacity, but rather as the official spokesperson for the Joint Committee on Reconstruction, which had drafted the amendment.  Finally, the speech was plainly not designed to convey the subjective intentions of the drafters.  Instead, Howard purported to describe the way in which he (a trained attorney whose legal abilities were greatly respected) believed that the language would be interpreted by the courts.

After giving a general explanation of the meaning of section one, Howard focused specifically on the relationship between section one and the right to vote.  The Republican members of the Joint Committee on Reconstruction had been deeply divided over the problem of how best to address the issue of suffrage in the Fourteenth Amendment.  At one point, a majority of the members of the Joint Committee had voted to report a proposal which would have provided that, after the year 1876 “no discrimination shall be made…as to the enjoyment by persons of the right of suffrage, because of race, color, or previous condition of servitude.”  However, it quickly became clear that such a prohibition would be unpopular with crucial centrist voters.  Thus, having become convinced that “the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race,” the committee voted to remove the suffrage provision from the amendment that was ultimately reported to the House of Representatives and the Senate for consideration.  Instead, the proposal that was reported contained a provision that penalized states that did not allow African-Americans to vote by reducing the number of representatives to which those states would be entitled in the House of Representatives.

Despite this action, the opponents of the proposed constitutional amendment continued to charge that the right to vote was one of the privileges or immunities of national citizens that was guaranteed by section one and that, if adopted, the Fourteenth Amendment would therefore impose a mandate similar to that which had been embodied in the deleted suffrage provision.  While admitting that he personally would have preferred that the suffrage provision had not been deleted, Howard felt compelled to respond to this claim.

In defending the view that section one would in no way limit the authority of the states to regulate voting rights, Howard did not make any specific reference to the distinction between political rights and civil rights that is widely-discussed in the literature dealing with the original meaning of the Fourteenth Amendment.  Instead, in an apparent effort to give a more precise meaning to the concept of “civil rights” to which other Republicans had referred, he distinguished sharply between “fundamental rights [that] lie at basis of all society” and those which are derived from “positive local law.”  Against this background, Howard insisted that section one did not limit state authority to regulate elections because the right to vote was “merely the creature of law.”

Among other things, Howard’s mode of analysis has profound implications for the claim that originalists should take the view that section one protects a right of access to public education.   Like the right to vote, public education exists only because taxpayer-supported schools have been created by state law.  Thus, the fact that, by 1868, the right to a public education had been ensconced in many or even most state constitutions was simply irrelevant for Fourteenth Amendment purposes.  Instead, because public education is “merely the creature of law,” under Howard’s theory, any claimed right of access to such education would be outside the purview of section one.    In short, unless one is willing to take the position that Howard misstated the original meaning of the relevant language, the claims of those who argue that the decision in Brown v. Board of Education is consistent with originalist theory are simply insupportable.


COMMENT BY ANDREW (October 16, 2019):  Thank you to Professor Maltz for his blog post.  I want to mention that the part of Senator Howard’s speech to which Professor Maltz refers was apparently revised and extended at a later time.  Here is how the Philadelphia Inquirer quoted that part of the speech as originally delivered:

The first section of this amendment, while conferring the rights I have enumerated, does not confer any right to vote.  The right of suffrage is not, in law, one of the privileges and immunities thus secured by the Constitution.  It has always been regarded in this country as the result of positive local law.  It has not been regarded as one of those fundamental rights lying at the foundation of our society, and without which people cannot exist without being slaves or subjected to a despotism.

The first two sentences seem to support an enumerated rights interpretation of the PI Clause; it is unclear whether the last two sentences alter that support, or instead merely explain why omission of the right to vote should not defeat the proposed Amendment.  Incidentally, Howard gave this speech before Senator Benjamin Wade asked for clarification of the PI Clause, which resulted in a prefixed Citizenship Clause.


Is Puerto Rico Unconstitutional?
Michael Ramsey

Today the Supreme Court hears oral argument in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, a case of potential originalist interest.  It presents the seemingly uninspiring question "[W]hether the appointments clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico."  But it might suggest that the entire government of Puerto Rico is unconstitutional (I doubt it) or that the odious (from an originalist perspective) Insular Cases should be overruled (one can hope).  For competing views: 

At Slate, Adriel I. Cepeda Derieux: The Supreme Court Has a Chance to Bring Constitutional Equality to Puerto Rico.  An excerpt:

More than geography or distance, Supreme Court case law has framed Puerto Rico’s relationship with the United States—and the second-class constitutional status of Puerto Ricans—for more than a century. As long as U.S. territories were populated principally by white citizens, the court commonly treated the Constitution as “following the flag.” It governed in the territories just as it did in the states.

At the turn of the 20th century, however—around the same time that it upheld “separate but equal” in Plessy v. Ferguson—the court created an unprecedented rule in decisions known as the Insular Cases. Going forward, the Constitution would not fully follow the flag to newly acquired overseas territories. Some of its protections—including the fundamental right to jury trial—did not apply.

But in the New York Times, Nikolas Bowie: Will Puerto Rico Still Be Allowed to Govern Itself? (arguing that a ruling against Aurelius -- that the appointments clause does apply in Puerto Rico -- would make the island's entire governmental structure unconstitutional).

... Article IV grants Congress “power to dispose of and make all needful Rules and Regulations” for territories. Congress can structure territorial governments as it chooses.

For instance, the Northwest Ordinance of 1789 provided for a territorial legislature with one house that was popularly elected and another comprised of appointees chosen by the President from lists proposed by the elected house and confirmed by the U.S. Senate.

The Court has long held that the Constitution’s structural safeguards including the Appointments Clause do not apply to territories. As Antonin Scalia noted in Freytag (1991), “Congress may endow territorial governments with a plural executive; it may allow the executive to legislate; it may dispense with the legislature or judiciary altogether.”

UPDATE:  Sounds like there's little interest on the Court to make it a big case.


Prevalent Rights Theory
Andrew Hyman

Professor Michael Rappaport posted here on October 10 in favor of the view that the Privileges or Immunities (PI) Clause protects “rights that are prevalent throughout the United States at a particular time.  To determine what those rights are, one must look at what rights the states . . . protect.”  Mike goes on to say that there are two versions of this view: a static view that relies upon what “the great majority of states or virtually all states” protected as of 1868, versus a similar but dynamic view that allows “the great majority of states or virtually all states” to add further rights over time if they realize those rights need protection.
I am not sure whether Mike thinks states could subtract rights over time after recognizing a mistake, or whether a state could protect a right while deciding not to influence or compel any other state to do likewise.  I am also unsure why he excludes federal practice and includes only state practice as factors in determining what the rights of federal citizenship are.  In any event, the prevalent rights theory that Mike describes is an interesting theory, and I am pretty much supportive of the dynamic version of it, so long as “the great majority of states or virtually all states” means the supermajorities prescribed by Article V of the Constitution.  In other words, I think the dynamic theory of prevalent rights is already embodied in Article V of the Constitution, and not in the Fourteenth Amendment.
Congressman John Bingham addressed this matter in February of 1866, while discussing his initial draft of the PI Clause:
It is not to transfer the laws of one State to another State at all. It is to secure to the citizen of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.
To me, the language of the final PI Clause, and its placement immediately after the Citizenship Clause, reflect what Bingham said in this quote.  And that makes perfect sense, because this quote from Bingham was an effort to placate opponents of his first draft, and so there would have been no reason for him to later backtrack from this quote.
More generally, a very longstanding rule of interpretation is that laws should be construed, if possible, so that they do not conflict with each other.  This rule applied in England for centuries, and Hamilton emphasized in The Federalist #78 that it applies in this country when considering the constitutionality of statutes.  Does this rule merely mean that a statute must be construed to avoid conflict with the Constitution, or does it also mean that the Constitution itself should be construed to avoid conflict with as many statutes as possible?  I think the latter must be true at least in cases of first impression, and probably to some extent in other cases as well.  It is an additional reason to confine the Privileges or Immunities Clause to the work it most clearly does: i.e. striking down state statutes that violate federal rights enumerated in the Constitution.

February Originalism Works-in-Progress Conference in San Diego: Papers Announced
Michael Ramsey

The Center for the Study of Constitutional Originalism at the University of San Diego Law School has announced the papers and commentators for the Eleventh Annual Originalism Works-in-Progress Conference in February 2020.  Here they are:

Stephanie Barclay (Brigham Young), Evolving Constitutional Remedies and Religious Exemptions

            Commentator: John Harrison (Virginia)

Will Baude (Chicago) & Stephen Sachs (Duke), The Misunderstood Eleventh Amendment

            Commentator: Jim Pfander (Northwestern)

Jamal Greene (Columbia), Rereading the Bill of Rights

            Commentator: Randy Barnett (Georgetown)

Stephen Griffin (Tulane), Optimistic Originalism Meets the Unfortunate Nineteenth Century

            Commentator: Michael McConnell (Stanford)

Rick Hills (NYU), Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide

            Commentator: John McGinnis (Northwestern)

Julian Davis Mortenson (Michigan), The Executive Power Clause

            Commentator: Ilan Wurman (Arizona State)

Seth Barrett Tillman (Maynooth) & Josh Blackman (South Texas), Offices “of,” “under,” and “under the authority” of the United States

            Commentator: John Mikhail (Georgetown)


Eric Segall: The Concession that Dooms Originalism
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted The Concession that Dooms Originalism: A Response to Professor Lawrence Solum (George Washington University Law Review On-Line, forthcoming) (17 pages).  Here is the abstract:

This essay responds to a recent article by Professor Lawrence Solum in the Northwestern University Law Review which describes alleged differences between Originalism and Living Constitutionalism. I argue that even under Solum's own criteria, and his specific discussion of and critique of my work, there is no meaningful difference between Originalism and Living Constitutionalism, and this merger is important for current political and legal debates about the proper role for the Supreme Court in our system of government.

The original promise of Originalism was that only by combining strong judicial deference with the search for original intent or meaning could judges be meaningfully constrained when resolving many of our country’s most difficult social, political, and legal issues. As more and more Originalists drop the deference aspect of the theory, however, and tell judges to apply the original meaning of the constitutional text differently as relevant facts (and values) change, then judicial discretion will be maximized. Whereas most Living Constitutionalists concede judges inevitably have that discretion, Originalists today still often claim that only their theory can limit the power of runaway federal judges. That claim, however, is simply false given the wide swath of discretion judges have under current originalist theory to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified.

The only meaningful theory of constitutional interpretation that can in practice privilege the Constitution's original meaning is one which includes strong judicial deference to other government officials.


Calvin TerBeek on Justice Gorsuch and Lee Strang on Originalism
Michael Ramsey

At The New Rambler, Calvin TerBeek: Originalist Scholarship and Conservative Politics (reviewing A Republic, If You Can Keep It, by Neil Gorsuch (Crown Forum 2019), and Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge University Press 2019)by Lee J. Strang).  Here is the introduction:

Neil Gorsuch is an ideological entrepreneur. His new book—pointedly not “intended for academics” (8)—is a folksy paean to constitutional conservatism. Gorsuch’s primary audience for his evangelization is the conservative media ecosystem and the engaged conservative citizen who consumes its wares. It is no coincidence the justice gave an exclusive preview of the book to  The Federalist, a pro-Trump conservative web magazine. Gorsuch wants to fill the role of conservative scholar-judge for the knowledge structure that movement conservatives have impressively built up for decades. This book is part of his bid to succeed Antonin Scalia, but with the late justice’s hard edges sanded down. 

Likewise, University of Toledo law professor Lee Strang’s book is the product of—and is also primarily aimed at—the conservative knowledge structure. Strang’s core audience is fellow conservative academic lawyers who subscribe (or are sympathetic) to originalism and their liberal interlocutors in the legal academy. The production of Strang’s book was supported by conservative institutional sites, including Georgetown Law’s Center for the Constitution (xi). The Center is run by Randy Barnett who conceived the first constitutional challenge to the Affordable Care Act. Reinforcing the ideological feedback loop: Barnett’s colleague, Larry Solum, with whom he runs an “Originalism Boot Camp” for conservative and libertarian law students, testified on behalf of Gorsuch at the nominee’s confirmation hearing. At Gorusch’s hearing Solum delivered a defense of originalism, and here, Solum blurbs the book.

Gorsuch’s central aim is to translate originalism—defined by the justice as reliance on “text and history and how the document was understood at the time of ratification” (25)—and its attendant conservative legal policy goals for a lay audience. Strang’s book serves as a compendium of the conservative and libertarian scholarship which Gorsuch, in turn, name-checks and popularizes in his book. Strang endorses this as the conservative legal movement’s “intellectual division of labor” (95). Put differently, Strang calls for conservative and libertarian legal academics to produce more law review articles (and books) for the conservative justices to cite in their opinions (and books) in order to legitimate them with ostensibly neutral academic expertise. Thus these books, instantiating the “intellectual division of labor,” provide a window into how ideas are disseminated and institutionalized by the conservative legal movement and the Republican Party. 

An interesting and engaging review, but I must say I'm baffled by this sentence:  "One goal of [Professor Strang's] book is to reassert the control Georgetown’s Center for the Constitution once had over the fractious intra-originalist debate in the legal academy (42)."  I have great respect for Georgetown’s Center for the Constitution but I'm fairly confident it did not ever "control" the intra-originalist debate (nor do I think the Center has such a goal). I at least have never felt controlled by it!


Haoshan Ren et al.: The Original Meaning of ‘Cases’ in Article III of the Constitution
Michael Ramsey

Haoshan Ren (Georgia State University), Margaret Wood (Northern Arizona University), Clark D. Cunningham (Georgia State University College of Law), Noor Abbady (Savannah College of Art and Design), Ute Römer (Georgia State University), Heather Kuhn (independent) and Jesse Egbert (Northern Arizona University) have posted ‘Questions Involving National Peace and Harmony’ or ‘Injured Plaintiff Litigation’? The Original Meaning of ‘Cases’ in Article III of the Constitution (36 Georgia State University Law Review __, forthcoming) (55 pages) on SSRN.  Here is the abstract:

If a federal official is deliberately violating the Constitution, is it possible that no federal court has the power to halt that conduct? Federal judges have been answering “yes” for more than a century – dismissing certain kinds of lawsuits alleging unconstitutional conduct by ruling that the lawsuits were not “cases” as meant in the phrase “The judicial Power shall extend to all cases” in Article III, Section 2, of the Constitution.

In 1911 the United States Supreme Court declared: “[T]he exercise of the judicial power is limited to ‘cases’ and ‘controversies.’ … By cases and controversies are intended the claims of litigants. … The term implies the existence of present or possible adverse parties, whose contentions are submitted to the court for adjudication.” The Supreme Court has subsequently further specified the meaning of “case” within the meaning of Article III to include the following “essential core”: a plaintiff who has suffered a concrete and particularized injury that is likely to be redressed by a judicial decision. Thus, at least in the civil setting, the Court has restricted the meaning of “cases” to adversary litigation initiated by a plaintiff with a personal and concrete injury --- in brief, “injured plaintiff litigation.”

This narrow interpretation of “cases” was used recently by the U.S. Court of Appeals for the Fourth Circuit to justify dismissing a lawsuit brought against President Donald Trump by the State of Maryland and the District of Columbia claiming that he is deliberately violating the Constitution’s prohibition against receiving emoluments from foreign states. The court said: “the District and Maryland’s interest in constitutional governance is no more than a generalized grievance, insufficient to amount to a case or controversy within the meaning of Article III.” Responding to the argument that if the District of Columbia and Maryland “could not obtain judicial review of [the President’s] action, then as a practical matter no one can,” the Fourth Circuit cited the answer provided in a 1974 Supreme Court decision: “The assumption that if [plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing.”

The empirical research reported in this article suggests that this “injured plaintiff litigation” interpretation of the meaning of “cases” may be more narrow – perhaps indeed entirely different – than how the word in its Article III context would have been used and understood by those who drafted and ratified the Constitution.

The authors of this article, comprised of a research team of lawyers and linguists, used a variety of computer-aided methods for examining very large data sets of Founding Era texts, including the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words.

One of the most glaring flaws of the Articles of Confederation was that the Articles supported only a very weak federal judiciary system. When delegates gathered in Philadelphia to draft a new constitution, they started out with high aspirations for establishing courts empowered to “hear and determine … questions which may involve the national peace and harmony.” The linguistic and historical analyses presented in this article support a conclusion that this aspiration did not disappear when “questions involving national peace and harmony” evolved into a series of phrases introduced by the word “cases” instead of “questions.”

This research indicated that those who drafted and ratified the Constitution:
(1) Would have understood “cases arising under laws” to be a type or example of “questions as involve the National peace and harmony”;
(2) Would have understood “questions as involve the National peace and harmony ” to be a more general category of jurisdiction than “cases arising under laws”; and
(3) Would not have understood “cases” in Article III as having a stable, inherent meaning such as “injured plaintiff litigation” – instead “cases” in each context of use would have been read as having a different meaning, constructed through its combination with accompanying words.

This empirical research may prompt reevaluation of the Supreme Court’s assumption that the original meaning of “cases” in Article III had the restrictive meaning of “injured plaintiff litigation” – an interpretation that is inconsistent with evidence of how those who drafted and ratified the Constitution actually used language.


Does the Constitution’s Original Meaning Prohibit a State from Abolishing the Insanity Defense?
Mike Rappaport

Mike Ramsey recently posted on the Kahler v. Kansas case, which raises the issue whether a state can eliminate the insanity defense.  Mike concluded that the original meaning does not protect against eliminating the insanity defense under the Eight Amendment or the Due Process Clause:

After considering this question a bit more, it seems to me that actually this long-standing practice is irrelevant from an originalist perspective.  Kahler is challenging his conviction under the Eighth Amendment (cruel and unusual punishment) and the Fourteenth Amendment (due process).  But the insanity defense is part of the substance of the offense.  It is neither procedural nor an aspect of punishment.

It cannot be that states must conform the substance of criminal law to what prevailed at the founding.  States routinely create new offenses and modify existing offenses by changing their elements or eliminating defenses.  That these changes may alter traditional approaches is not a matter of constitutional concern.

I have some sympathy for Mike’s argument, but I believe there is a potentially strong argument for concluding that the original meaning prohibits the insanity defense under the Privileges or Immunities Clause. 

As I have indicated previously, I adopt “the prevalent rights view" of the Privileges or Immunities Clause.  “Under this view ‘the privileges or immunities of citizens of the United States’ – refers to the rights that are prevalent throughout the United States at a particular time.  To determine what those rights are, one must look at what rights the states . . . protect.  It may be that those rights should have been protected over a period of time, not just for a particular instant.”

There are two versions of this view.  The static view holds that a right is protected by the Clause if it was protected by the great majority of states or virtually all states at the time of the enactment of the 14th Amendment.  (Perhaps the right also needed to have been protected for an extended period of time leading up to the 14th Amendment.)  Under this view, those rights were protected when the Amendment was enacted and cannot be taken away.

The dynamic view is similar but holds that the rights protected can change over time.  If a right that was not protected by virtually all states at the time of the 14th Amendment comes to be protected by virtually all states at a later point, it then becomes a privilege or immunity of citizens of the United States.   

I am not sure whether I hold the static or the dynamic view, but the insanity defense might be protected under either view.  If the insanity defense was protected by virtually all states at the time of the 14th Amendment, then it would be a privilege or immunity that could not be taken away.  Under the dynamic view, if the defense is protected by virtually all states at present, then it is a privilege or immunity that cannot be taken away. 

So I believe there are serious original meaning issues raised by the case.  Of course, the resolution will turn on how widely the insanity defense was actually protected by the states during the relevant period.  I have not explored that question.  

Title VII and Sexual Orientation Discrimination
Andrew Hyman

This week, the U.S. Supreme Court heard oral arguments in Bostock v. Clayton County and Harris Funeral Homes v. EEOC.   SCOTUSBlog has a summary of those arguments, and the transcript is here.  The cases revolve around Title VII of the Civil Rights Act of 1964, which bars employment discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”  The issue is whether this statutory bar on sex discrimination includes a bar on sexual orientation discrimination (Bostock), or on transgender discrimination (Harris).  For simplicity, I’ll just comment here on the former (Bostock).    

There is much common ground.  Hardly anyone thinks the word “sex” in the 1964 statute means anything other than “gender.”  Hardly anyone thinks Congress in 1964 anticipated that this section would give any protection to people in same-gender relationships.  Hardly anyone thinks discriminating against people in same-gender relationships would disfavor or disadvantage one gender or the other, or is motivated by any animus toward one gender or the other, or is an endorsement of the doctrine of male or female supremacy.  

The major disagreement is whether, according to the text of the section, it forbids employment discrimination against an individual in a same-sex relationship, given that the individual would not be in a same-sex relationship if his gender were different while the partner’s gender remained the same.  Seems to me it is unrealistic to suppose that an individual’s gender could be different while everything else remained the same, because in that event the partner would very likely insist upon exiting the relationship.  Also, using similar “but for” logic with regard to statutory categories like “national origin” would have absurd effects, because disfavoring people unlawfully in the United States depends on their national origin not being the United States.  Moreover, the discrimination against people in the present case (Bostock) is not against one gender or the other, even via implication or animus or anything else.  That doesn’t mean it’s a moral form of discrimination, but Title VII does not bar all immoral discrimination.

Congress passed the Civil Rights Act of 1964 and is free to improve it, and Judge Posner was surely mistaken when he said that we should “avoid placing the entire burden of updating old statutes on the legislative branch.”  It’s true Justice Scalia once wrote that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  Gender is not synonymous with sexuality, and being closely-related is not enough to make such words interchangeable.
MICHAEL RAMSEY ADDS:  George Will has some related thoughts in the Washington Post: It’s not the Supreme Court’s job to say whether ‘sex’ includes sexual orientation.  Also, at Volokh Conspiracy, Dale Carpenter has a great post on how Judge Posner was attacked by all sides in the oral argument:  Of loose cannons and loose canons in Title VII.
From a (statutory) originalist perspective, the interesting question to me is methodological: how much should it matter that the enacting Congress did not think that its text would cover sexual orientation discrimination?
If the original meaning of the text were clear, my answer (and I think Scalia's answer, per the quote Andrew provides above) would be: not much.  The text governs, not the intent.  When the text is not clear, though, one important way to resolve ambiguity is to look at what the enactors (and other people at the time) understood the text to mean.  That may not be conclusive, but it is strongly suggestive that, whatever ambiguities we now see over the passage of time, the text actually had a clear meaning at the time it was enacted.  For this reason, in constitutional originalism we routinely look to see what people in the founding era thought a particular text meant.  And if it seems that people in the founding era were largely in accord on the meaning, that indicates that the text isn't as ambiguous as it now seems to us.  (The scholarship on the declare war clause is a great example).
Thus when people who favor extending Title VII to sexual orientation discrimination say it shouldn't matter to a textualist what the enacting Congress thought, they are only partially right.  It shouldn't matter, if the text is clear.  But for reasons stated by Andrew, George Will, and others, I have a hard time concluding that the text is clear.

Scott Gerber: Law and the Holy Experiment in Colonial Pennsylvania
Michael Ramsey

Scott D. Gerber (Ohio Northern University - Pettit College of Law) has posted Law and the Holy Experiment in Colonial Pennsylvania (NYU Journal of Law & Liberty, Vol. 12, No. 3, 2019, pp. 618-717) (100 pages) on SSRN.  Here is the abstract:

Religious liberty is a core component of America’s legal culture. William Penn, the Quaker founder and proprietor of colonial Pennsylvania, played an indispensable role in ensuring that it is. Indeed, Thomas Jefferson — the author of one of the most celebrated religious liberty laws in American history, the Virginia Statute for Religious Freedom of 1786 — described Penn as “the greatest lawgiver the world has produced, the first in either ancient or modern times who has laid the foundation of govmt in the pure and unadulterated principles of peace of reason and right.” Jefferson was correct. After all, the commitment to liberty of conscience that characterized colonial Pennsylvania traced directly to Penn’s vision, example, and determination: Pennsylvania enacted more laws about religious tolerance than any other British American colony, both before and after Penn’s death. Delaware, which Penn also owned and which constituted the “lower counties” of Pennsylvania until it became an independent state in 1776, likewise enacted religiously tolerant laws even when Penn permitted it to govern itself with a separate assembly after 1704. Although generations of scholars have explored the political and social history of Penn’s “Holy Experiment,” no one has examined how colonial Pennsylvania used law to ensure its success. This article endeavors to do that through an exegesis of Pennsylvania’s charter, colonial constitutions, statutes, and judicial decisions.

(Via Dan Ernst at Legal History Blog).


Faithful Execution and "For Cause" Directors
Michael Ramsey

In the New York Times, Jed Shugerman and Ethen Leib argue that the Faithful Execution Clause allows Congress to limit the President's ability to remove agency directors (as in the CFPB and FHFA cases now pending for cert).  But their argument has a serious flaw that even they are forced to acknowledge and largely can't answer.

From the introduction:

First, the Department of Justice asked the court to strike down the job security protections for the head of the Consumer Financial Protection Bureau, which was Senator Elizabeth Warren’s brainchild. Such restrictions on a president’s removal power, the argument goes, violate the separation of powers. Afterward, Fannie Mae and Freddie Mac shareholders filed a surprising petition making a similar argument about the Federal Housing Finance Agency.

But these arguments overlook an important constitutional text that applies to the president’s powers: the duty of “faithful execution.” That obligation already limits presidential discretion, and it gives Congress the power to apply “good faith” or “good cause” limits on the president’s removal authority.

And from later on:

[T]he proponents of the view that all agency heads serve at the pleasure of the president cite the clause in Article II that requires of the president that he “shall take care” of executing laws.

However, they ignore a crucial modifier in Article II and its history: “The president shall take care that the laws be faithfully executed.” The president also takes an oath to “faithfully execute the Office of President.” These clauses require good faith in executing presidential powers. The position that the president must have a completely unconstrained ability to say “you’re fired” to any agency head is wrong as a matter of the original public meaning of the Constitution.

The word “faithfully” is a signal that the framers wanted to limit the exercise of presidential powers to “good faith” reasons, bona fide purposes and fidelity to the public interest. ...

Let's assume they're right about the President having a faithful execution duty.  (I think they probably are).  That does not  show that the President's removal power can be limited to cases of (as the CFPB statute puts it) "inefficiency, neglect of duty, or malfeasance in office."

To the contrary, the President likely may wish to remove an agency head because of a policy disagreement, or simply because the President is not comfortable working with the person.  Such removals obviously would not violate the duty of faithful execution.  They are not situations in which the President is pursuing a private interest at the expense of the public interest.  The point of the removal is to allow the President to pursue the public interest (as the President sees it) without interference from an agency head with a different view of the matter.  Yet these removals would not be allowed by the CFPB statute (or other similar statutes).  Indeed, the central point of the statutory removal limitations is to create independent agencies whose policymaking the President cannot directly control.  And that's what makes the limitations unconstitutional -- they prevent the President from fully exercising the constitutional "executive Power."

Professors Leib and Shugarman see the problem with their argument and try to deal with it toward the end of the article:

One might argue that “inefficiency, neglect of duty, or malfeasance in office” arguably goes beyond a constitutional good-faith requirement. A policy disagreement might be the basis of good-faith removal, but is it sufficient to meet the statutory terms of “inefficiency” or “neglect”?

Congress sometimes is permitted to draw the bounds of “faithfulness” more specifically. First, the history of “faithful execution” and other parts of Article II indicate general deference to Congress’s law-giving authority and judgment. Within reasonable limits, Congress can animate the concept of “faithful execution” as a limit on a president’s removal discretion. Second, everyone knows “good faith” is vague; allowing Congress room to be more specific or to tailor protections for particular offices is not a remarkable exception. Congress should have latitude to specify that “faithful execution” in some agencies dealing with especially sensitive matters or special expertise may require extra insulation, even from removal for policy disagreements, to guard against self-interested presidential pressure and manipulation. Third, the limits Congress creates for independent agencies still leave the president with broad discretion to remove officials, retaining the Constitution’s basic unitary structure.

I don't think this makes any progress in salvaging their argument.  First, the good cause standard clearly (not just "arguably") goes beyond the good faith requirement.  And if one were inclined to read the two in harmony, the result would be that the President could fire the agency heads for essentially any reason apart from a purely private one.  (This argument has been made, though I regard it as amending the statute to preserve its constitutionality rather than fairly interpreting the statute).

Second, I think the supposed "general deference to Congress’s law-giving authority and judgment" in separation of powers cases is largely an invention of the authors (the link goes to a contested academic piece by Julian Mortenson that isn't really on point).  And when the Court has deferred (as in Morrison v. Olson), it's been wrong.  Fundamentally, separation of powers means that one power should not be allowed to encroach upon another; deferring to Congress' encroachments is exactly the wrong way to do it.

Third, the suggestions that Congress "can animate the concept of 'faithful execution'" or that we should "allow[ ] Congress room to be more specific or to tailor protections for particular offices" are but fancy ways of saying that Congress should be allowed to create limitations on the President's executive power that aren't in the Constitution.

In sum, the faithful execution limit on the President (which I endorse) is a very modest one.  It does not license Congress to shield agency heads from the President's control and removal in situations of policy disagreement or personality clash between the President and the agency head.  Such removals are an aspect of faithful execution, not a violation of it.

(Note: I joined an academic amicus brief supporting the petition for writ of certiorari in the CFPB case.  For more discussion, see here: The Battle of the "For Cause" Directors).


Does the Supreme Court Have Mandatory Original Jurisdiction?
Michael Ramsey

Article III, Section 2 says that "[i]n all Cases ... in which a State shall be a Party, the supreme Court shall have original Jurisdiction."  But does that mean it has mandatory original jurisdiction?  In a pending case, a group of states, led by Dave Yost and Benjamin Flowers (respectively, the Attorney General and Solicitor General of Ohio), argue yes.  Here is their brief (in Arizona v. Sackler).  And here is their summary of argument: 

Article III confers the “judicial Power” on the federal courts and allows them to exercise that power in certain categories of “Cases” and “Controversies,” including “Controversies … between a State and Citizens of another State” Art. III, §2, cl.1. The same article vests this Court with original jurisdiction over cases “in which a State shall be Party.” Art. III, §2, cl.2. This Court has long (and correctly) interpreted this language to confer original jurisdiction in only those cases to which the judicial Power extends “because a State is a party.” Cohens v. Virginia, 6 Wheat. 264, 394 (1821) (emphasis added). (As opposed to cases, such as federal-question cases, in which the courts have jurisdiction without regard to the parties’ identities.) The category of cases to which jurisdiction extends because a State is a party includes controversies “between a State and Citizens of another State.”

The “judicial Power” extends to this controversy between a State (Arizona) and nonresidents (the defendants). And this Court unambiguously has original jurisdiction over this case “in which a State shall be Party.” Art. III, §2, cl.2. Thus, the Court must entertain Arizona’s suit unless it has discretion not to hear cases over which it has original jurisdiction.

The Court has no such discretion. Article III gives the courts no freestanding power “to decline the exercise of jurisdiction which is given.” Cohens, 3 Wheat. at 404. Nor does it give this Court any power to decline jurisdiction specifically in cases arising under its original jurisdiction. Indeed, this Court has acknowledged that Article III, as originally understood, confers no such discretion. Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 496–97 (1971).

Notwithstanding this acknowledgment, the Court has claimed for itself the power to decline the exercise of jurisdiction. Id. at 498. “The Court’s reasons for transforming its mandatory, original jurisdiction into discretionary jurisdiction have been rooted in policy considerations.” Nebraska v. Colorado, 136 S. Ct. 1034, 1035 (2016) (Thomas, J., dissenting from denial of motion for leave to file complaint). For example, the Court has “cited its purported lack of ‘special competence in dealing with’ many interstate disputes and emphasized its modern role ‘as an appellate tribunal.’” Id. (quoting Wyandotte, 401 U.S. at 498).

These arguments are unpersuasive. Most fundamentally, this Court cannot rewrite the Constitution whenever, in its view, doing so makes  better policy. Regardless, the policy arguments fail on their own terms. For example, the Court’s ability to appoint special masters, and the option to certify state-law questions to state courts, mitigate or eliminate any concern about this Court’s “special competence” or its ability to function primarily as an “appellate tribunal.” And even if this Court were to restore the mandatory nature of its original jurisdiction over disputes between States and nonresidents, it would face no serious risk of being flooded with litigation: In disputes between States and nonresidents, only the States can sue under this Court’s original jurisdiction; the nonresidents have no power to sue the States. See U.S. Const., 11th Am. Since States will usually prefer to proceed against nonresidents in their own courts if possible, they will rarely seek relief in this Court.

Because this Court’s decisions claiming discretion to decline jurisdiction in original matters are contrary to the Constitution and poorly reasoned, and because they have engendered no reliance interests, they ought to be overruled. ...


Supreme Court Term Opens with Cases of Potential Originalist Interest [Updated]
Michael Ramsey

The Supreme Court's 2019-2020 Term opens with several cases of potential originalist interest, including on the first day:

(1) Kahler v. Kansas (argument today):  Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.  The case is likely to raise the originalist questions (a) whether the insanity defense (or rather, what form of the insanity defense) existed in the eighteenth century, and (b) whether that matters.

(2)  Ramos v. Louisiana (argument today): Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.  My thoughts on this one are here and especially here.  There is a good possibility of a left/right alliance to overturn the embarrassment of Apodaca v. Oregon.

(3) Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC and related cases (argument 10/15/19): Whether the appointments clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.  These cases may lead to some interesting questions about the original understanding of "officers of the United States."

And, although they aren't constitutional cases, Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (argument 10/8/19) ask whether Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation or transgender status, and raise important questions of statutory originalism -- namely, whether the statutory text literally prohibits such discrimination, and if it does, whether it matters that the enacting Congress probably did not intend to prohibit such discrimination.  See William Eskridge: Textualism’s moment of truth and Stephanie Taub & Michael Berry, Hiding elephants in mouseholes: The original meaning of “discrimination on the basis of sex” (plus other contributions to the SCOTUSBlog symposium on the cases).

And that's just October.

UPDATE: As reported at SCOTUSBlog, as expected the argument in Kahler involved multiples references to and arguments from the traditional and long-standing insanity defense.

After considering this question a bit more, it seems to me that actually this long-standing practice is irrelevant from an originalist perspective.  Kahler is challenging his conviction under the Eighth Amendment (cruel and unusual punishment) and the Fourteenth Amendment (due process).  But the insanity defense is part of the substance of the offense.  It is neither procedural nor an aspect of punishment.

It cannot be that states must conform the substance of criminal law to what prevailed at the founding.  States routinely create new offenses and modify existing offenses by changing their elements or eliminating defenses.  That these changes may alter traditional approaches is not a matter of constitutional concern.

For example, suppose in the founding era it had long been permitted to use deadly force to protect private property (that is, it was a defense to a murder charge that the defendant was protecting his property).  But over time some states decided this was not an appropriate defense: people should not be excused for killing merely over property.  So the defense was abolished.  Would this raise Eighth or Fourteenth Amendment problems on the ground that the protection-of-property defense was long-established?  I don't think so, and I don't see why the insanity defense should be different.


Allen Mendenhall on St. George Tucker
Michael Ramsey

At Law & Liberty, Allen Mendenhall (Faulkner University/Jones School of Law): St. George Tucker’s Jeffersonian Constitution.  From the introduction:

One could argue that there are two basic visions for America: the Hamiltonian and the Jeffersonian. The former is nationalist, calling for centralized power and an industrial, mercantilist society characterized by banking, commercialism, and a robust military. Its early leaders had monarchical tendencies. The latter vision involves a slower, more leisurely and agrarian society, political decentralization, popular sovereignty, and local republicanism. Think farmers over factories.

Both have claimed the mantle of liberty. Both have aristocratic elements, despite today’s celebration of America as democratic. On the Hamiltonian side we can include John Adams, John Marshall, Noah Webster, Henry Clay, Joseph Story, and Abraham Lincoln. In the Jeffersonian camp we can place George Mason and Patrick Henry (who, because they were born before Jefferson, could be considered his precursors), the mature (rather than the youthful) James Madison, John Taylor of Caroline, John C. Calhoun, Abel Upshur, and Robert Y. Hayne. The Jeffersonian Republicans won out in the early nineteenth century, but since the Civil War, the centralizing, bellicose paradigm has dominated American politics, foreign and monetary policy, and federal institutions.

St. George Tucker falls into the Jeffersonian category. View of the Constitution of the United States, published by Liberty Fund in 1999, features his disquisitions on various legal subjects, each thematically linked. Most come from essays appended to his edition of Sir William Blackstone’s Commentaries on the Laws of England.

Born in Bermuda, Tucker became a Virginian through and through, studying law at the College of William and Mary under George Wythe, whose post at the law school he would eventually hold. On Tucker’s résumé we might find his credentials as a poet, essayist, and judge. He was an influential expositor of the limited-government jurisprudence that located sovereignty in the people themselves, as opposed to the monarch or the legislature, which, he believed, was a surrogate for the general will in that it consisted of the people’s chosen representatives.

With, among other things, interesting points about Tucker's view of the common law.

(Thanks to Mark Pulliam for the pointer).


The Fixation Thesis
David Weisberg

Prof. Rappaport’s recent post broadly defines “originalism” in accordance with Prof. Larry Solum’s view that that theory encompasses two premises: the fixation thesis and the constraint principle.  In this note, I want to focus on the fixation thesis.  (A more detailed discussion is available in my paper on SSRN.)

In Prof. Solum’s words, the fixation thesis holds that “the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified.”  Prof. Rappaport takes this to mean that “the meaning of the text is the meaning it had when it was enacted—its original meaning.”  These formulations seem clear and straightforward, but experience demonstrates that conscientious originalists can apply the fixation thesis and produce flagrantly erroneous results.  Its apparent clarity and simplicity can be illusory.

Consider the late Justice Antonin Scalia’s well-known struggle with the question whether the 8th Amendment prohibition against “cruel and unusual punishments” bars flogging as a punishment today.  In an interview in 2013, Justice Scalia said that, although “a long time ago” he was a fainthearted originalist who would have found the re-imposition of flogging to be unconstitutional, in 2013 he would not so find.  “[I]f a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional.”

The notion that a re-imposition of flogging today would pass muster under the 8th Amendment is obviously mistaken.  Flogging was “cruel” in the 18th century and would be “cruel” today, as defined, e.g., in the O.E.D.: “Disposed to inflict suffering[.]”  (Suffering was inflicted, of course, as a means to the commendable ends of deterring the criminal from repeating his crimes and others from replicating them.)  But in the 21st century, no reasonable person could say that flogging would not be “unusual” in the U.S.  Because the 8th Amendment bars punishments that are both cruel and unusual, it would bar flogging today.

Justice Scalia’s mistake stems from confusing the 8th Amendment prohibition of “cruel and unusual punishments” with a prohibition of punishments that are (a) cruel and (b) were unusual in 1791, when the amendment was adopted.  Indeed, one might think that, having accepted the fixation thesis, we should understand the 8th Amendment as prohibiting cruel punishments that were unusual in 1791.  That is incorrect, for the following reason.

Consider two versions of the amendment:

1.     “…, nor cruel and unusual punishments inflicted.”  (Actual)

2.     “…, nor punishments inflicted that are cruel and also unusual as at the time of adoption of this amendment.”  (Hypothetical)

In 1791, the framers of the 8th Amend would have understood the clear difference between these two versions precisely as we understand that difference today; none of the words or phrases in these two versions have changed meaning in the 228-year interval.  And, because they would have understood the difference just as we do, we may conclude that, in adopting version 1, they declined to adopt version 2.

A second problematic example is Justice Scalia’s dissent in Obergefell vHodges.  In rejecting (in my opinion, correctly) the view that the 14th Amendment requires States to accept same-sex marriages, he wrote:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the people who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. 

This is, I submit, an entirely unsatisfactory explication of “the meaning” of either Due Process or Equal Protection, or both. 

It is flatly misleading to say that in 1868 “no one doubted” the constitutionality of limiting marriage to opposite-sex couples.  In 1868, no one doubted that marriage should be limited to opposite-sex couples, but equally no one doubted that marriage should not be so limited, because no one had ever considered the question at all.  [Compare Justice Scalia’s majority opinion in Kyllo vU.S.: Use on a public street of a thermal-imaging device aimed at a private house to detect heat anomalies evidencing cultivation of marijuana in the home was an unreasonable search under the 4th Amendment.  Certainly no one in 1791 considered that using that device would constitute an unreasonable search, because no one at that time had ever conceived of such a device.  But that empty truism did not lead Justice Scalia to find no constitutional violation.]

Justice Scalia’s misadventures (which are no reflection on Profs. Rappaport and Solum) do teach an important lesson.  The meaning of a phrase—“cruel and unusual punishments,” or “the equal protection of the laws,” or “unreasonable searches and seizures”—cannot be determined by identifying the things to which the phrase did or did not refer at the time it was made part of the Constitution.  Flogging was not a cruel and unusual punishment in 1791, but it would be so today.  In 1868, the equal protection of the laws was not understood either to compel the States to recognize or permit the States to reject same-sex marriages, because at that time no one had even considered the issue.  In 1791, no one had an opinion as to whether remote thermal imaging could constitute an unreasonable search. 

The meaning of a word or phrase is not determined by its referents at any particular moment; the definition of a word is to be found in a dictionary, and the meaning of a phrase can be discovered by starting with the definitions of the constituent words, and then researching idiomatic meanings.  Constitutional history is of course important, but if we had a time machine to transport us back to 1791, we would certainly find convicts in stocks being flogged.  That would not make flogging constitutional today.

MICHAEL RAMSEY adds:  I completely agree on the Eighth Amendment example, and in fact I used this same example in a recent talk on originalism. When originalists say that sometimes facts change, and that can change the way fixed meanings are applied, this is an example of what they have in mind.  But the Eighth Amendment is a bit unusual (sorry) in this respect.  The example does not generalize to the proposition that applications change whenever facts (or our understanding of facts) changes.

For example, the confrontation clause says that a criminal defendant has the right to confront witnesses against him.  We now understand -- in a way the framers of the Amendment did not -- that confrontation of particularly vulnerable or impressionable witnesses can interfere with the truth-seeking process.  But that would not suggest (to originalists) that courts should read an exception into the confrontation clause.  We may now understand that an absolute confrontation clause is a bad idea, but that does not change the fixed meaning of the clause.

Eric Segall Responds to Mike Rappaport
Michael Ramsey

At Dorf on Law, Eric Segall: The Problem Isn't Naming Originalism: A Response to Professor Rappaport.  From the introduction: 

Professor Michael Rappaport recently wrote an essay for the Originalism Blog (a site that has been quite generous in publishing my critiques of originalism) titled "The Challenge of Naming the Modern Originalist Movement." In this piece, Rappaport concedes that there are many internal squabbles within the originalist movement and that these disputes can lead to different theories all labeled originalist. He also, suggests, however, that most originalists coalesce around Professor Larry Solum's two bedrock principles allegedly underlying all or most originalist theories: the fixation thesis (the original meaning of the text is fixed at ratification); and 2) the constraint thesis (that meaning constrains today's political actors, including judges). 

Rappaport discusses the various labels that originalsts use, such as New Originalism or his own Original Methods Originalism, and concludes that originalists need to be more sensitive to the naming of their respective theories and try to find more common ground. The entire essay, however, fails to wrestle with the two major defects with Originalist theory today, which are emphatically not a labeling problem. The real defects are that there is no coherence among different originalism theories, and that the fixation and constraint principles don't come close to providing a glue that can bind varying originalist theories together.

And from further along:

Some originalists believe originalism is already our law, most believe it is not. Some originalists believe in strong judicial deference while some argue for almost no deference. Some originalists believe the proper search is for original meaning. Others think the appropriate focus is original intent. And no originalist has yet articulated a well-accepted theory by other originalists as to how to fit non-originalist precedent into a coherent and consistent originalist philosophy. 

More specifically, as I've written before

llya Somin and Steven Calabresi urge a form of originalism that they claim justifies the Court's decisions overturning same-sex marriage bans, but many other originalists such as Michael Paulsen think that conclusion is, well, not only not originalist, but comparable to Dred Scott. Randy Barnett and Ilya Shapiro would like to overturn much of the administrative state through their brand of originalism via "judicial engagement", though Michael McConnell would absolutely deny judges that role under his version of originalism. Meanwhile, Will Baude and Steve Sachs think originalism is already our law (possibly including cases like Brown and Obergefell). Most originalists today do not agree with that view.

These aren't labeling differences but major substantive disagreements.



Negative Misprisions Are Not Grounds for Impeachment
Andrew Hyman

I am no expert on impeachment, so this week I turned to my favorite online copy of the U.S. Constitution to find out more.  Plus I read some recent commentary by reliable constitutional scholars.  Michael Ramsey wrote on this blog that, whatever the exact meaning of high crimes and misdemeanors may be, the U.S. Supreme Court can prevent impeachments for conduct that falls outside those terms.  Mike makes some solid arguments.  But what falls outside the meaning of high crimes and misdemeanors?
Well, Blackstone wrote that a “high misdemeanor” is synonymous with a “positive misprision,” which he said included “mal-administration of such high officers as are in public trust and employment.”  But care must be taken here, because Blackstone used the term “mal-administration” in a narrow way; he gave examples of things that are not mal-administration, including "negative misprision" which is a failure to disclose something that ought to be disclosed.   It would therefore seem that disobeying subpoenas to turn over information or provide witnesses to Congress cannot be proper grounds for impeachment.
UPDATE BY ANDREW ON OCTOBER 13, 2019: A 1998 CRS report quotes Blackstone and many other impeachment authorities at length.  Among other things, Blackstone wrote: “A crime, or misdemesnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it" (the word "misdemesnor" is an antiquated spelling of "misdemeanor").  Thus, when Blackstone later wrote about “high misdemesnors; of which the first and principal is the mal-administration of such high offices, as are in public trust and employment,” he must have meant by the term “mal-administration” only instances where a public law was violated.  That is a relatively narrow use of the term "mal-administration."  During the constitutional convention, a more vague use of the term "maladministration" was rejected, as Judge Rao pointed out in a dissent on October 11, 2019.  I already mentioned in this blog post that negative misprisions were not considered by Blackstone to be high misdemeanors, but I should have said that he left open the possibility that they could sometimes be high crimes.

Rick Hills on Rick Hills on Strategic Ambiguity and the Constitution
Michael Ramsey

At Prawfsblawg, Rick Hills (NYU) has a long post discussing his recently posted article Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide (noted here): How Should Article VII’s Ultimatum Game Affect Constitutional Interpretation?  Here is the introduction: 

Suppose that you accept the originalists’ premise that 18th century linguistic norms ought to determine the communicative content of American constitutional words and phrases. Which 18th century norms should you use, if 18th century speakers disagreed about the applicable norms? As Jack Rakove has noted, the Constitution was ratified during Revolutionary times when the meaning of words were in flux. What if 18th century Americans were in ferocious disagreement with each other about how to read constitutional text?

I have recently posted a draft article arguing Article VII of the U.S. Constitution defined a revolutionarily new legislative process with interpretative consequences. That Article VII process amounted to a one-shot Ultimatum Game. The essence of this Ultimatum Game was that Federalist proposers who drafted a proposed Constitution in a secret Philadelphia Convention sent it for an up-or-down vote to state ratifying conventions where amendments to the proposal were forbidden. Anti-Federalists dominated several important ratifying Conventions (in particular, Massachusetts, Virginia, and New York), and they bitterly resented the Article VII process, complaining that the process amounted to (using their oft-repeated phrase) “cramming the Constitution down our throats.” As modern political science notes, such a process gives the proposer a decisive advantage over the ratifiers whenever the ratifiers’ preferences lie somewhere between the status quo and the proposers’ preferences. The further the ratifiers’ preferences are from the status quo to which the situation will revert if the proposal is rejected, the greater the proposers’ power to cram a proposal down the ratifiers’ throats that the ratifier dislikes. Because Anti-Federalists generally hated the Articles of Confederation (albeit not as much as the Federalists), they would theoretically hold their noses and approve any proposal that they really, really disliked to avoid reversion to the dreaded anarchy of the Articles.

What interpretative conventions ought to accompany a document ratified through such a process? In the article, I suggest that the Federalists deliberately adopted a stance of presuming that contested constitutional terms were ambiguous in order to assuage Anti-Federalist resentment over Article VII. Especially during the Massachusetts ratifying convention and thereafter, two standard Federalist talking points were that (1) popular ratification through state conventions required a proposal filled with vague language but (2) Anti-Federalists would have equal odds of influencing the interpretation of ambiguous phrases after ratification. This ratification strategy suggests an interpretative convention: When in doubt, construe constitutional phrases to be strategically (meaning deliberately) ambiguous. As originalists generally agree, strategically ambiguities cannot be resolved by looking to facts contemporary with ratification such as linguistic usage or shared constitutional purposes. Instead, the legal meaning of strategic ambiguities must be resolved through constitutional “construction” using post-ratification materials.

After the jump, I have provided some answers to FAQs I’ve encountered when discussing this idea with colleagues. The broad take-away, however, is that the contested character of Article VII really matters to originalism. One cannot figure out what norms should apply to any linguistic artifact — a novel, a card game, a love letter, an elevator pitch, a treaty, a statute, etc. — until one investigates the process that produces that artifact. The Article VII process suggests IMHO that the right linguistic norm is a presumption of strategic ambiguity, but, even if you reject that position, you really need to take Article VII’s contested character into account when devising one of your own.

As with many arguments that the Constitution's text is mostly ambiguous (or vague), I'm not persuaded (although surely some of it is); but in any event, I am persuaded that if the Constitution's text is mostly ambiguous, then courts have little license to override the decisions of the political branches.  I'm not sure that's what the author wants to persuade me of, however.


Devin Watkins on Korematsu and Substantive Due Process

Devin Watkins comments on this post by me on the Korematsu case: 

While I mostly agree with you, your opinion concerning Korematsu is very close to “so-called” substantive due process—which I don’t think is a bad thing. So-called substantive due process, I think has gotten quite a bad reputation, but that is because the name was designed to imply something silly for something that should be good law. But your definition is rather close to what it should mean.

The Due Process Clause, properly understood, means that (in addition to the executive) the legislature cannot pass a law that takes someone’s liberty away without proscribing a process that goes through the procedures of a trial and conviction by one’s peers. It’s a procedural right, but it creates a procedural protection for “liberty.” Before “liberty” can be taken (even under a statute passed by Congress), such judicial procedures must be followed.

The question then becomes, what is the meaning of “liberty.” It is here, that I seem to disagree a bit. I totally agree that imprisonment clearly takes someone’s liberty away. But Korematsu wasn’t imprisoned or ordered to be imprisoned (by the legislature or the President) by the law/order he violated. The executive order by FDR stated that the military commanders could “prescribe military areas in such places and of such extent as he or the appropriate… from which any or all persons may be excluded” and the order by the military commander he violated merely excluded him from the county of Alameda. Now I agree that these orders took Korematsu’s liberty, but by what measure do you think such an order was “imprisonment”?

To me, imprisonment is merely one example of taking a person’s liberty. The Constitution’s preamble goal to “secure the blessings of liberty to ourselves and our posterity” doesn’t seem to suggest that the word “liberty” means “imprisonment.” Nor do I see what Benjamin Franklin saying “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety,” to be suggesting that liberty is limited to imprisonment. Surely the word liberty described as an unalienable right in the Declaration of Independence wasn’t speaking of mere imprisonment.

Korematsu lost his right to liberty of movement, the ability to move freely in his own country (such as on public sidewalks) as he choose to do so. That takes away a core part of liberty to me. But I don’t see how your more limited version of liberty as only imprisonment could invalidate an order to exclude people from an area. Forcing them to move elsewhere isn’t imprisonment.

Christine Kexel Chabot: An Originalist Argument for Independent Agencies
Michael Ramsey

Christine Kexel Chabot (Loyola University Chicago School of Law) has posed Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies (46 pages) on SSRN.  Here is the abstract:

The President’s inability to control the Federal Reserve’s monetary policy decisions raises significant constitutional concerns. The Federal Reserve’s Federal Open Market Committee executes critical statutory mandates when it buys or sells U.S. securities in order to expand or contract the money supply, and yet the Committee’s twelve voting members check one another instead of answering directly to the President. The President cannot remove Committee members who refuse to carry out his monetary policy directives. Seven of the Committee’s twelve voting members are Federal Reserve governors who enjoy for-cause protections from removal by the President. Congress delegated power to supervise and remove the remaining five voting members, who are presidents of regional Federal Reserve banks, to the governors rather than the President. Further, the President has no say in the appointment of regional bank presidents to the Committee. While the Committee’s independence and appointments process would likely pass muster under current precedent, a growing chorus of originalists have argued that the Constitution requires greater executive control and a more expansive application of Article II’s Appointments Clause requirements.

This paper demonstrates that existing originalist accounts are incomplete. They do not account for the structural independence of an obscure agency known as the Sinking Fund Commission. This Commission was proposed by Alexander Hamilton, passed into law by the First Congress, and signed into law by President George Washington. One would expect all of these actors to have a clear grasp on the original public meaning of the Constitution, as well as a strong dedication to the structural commitments established therein. Their decisions to form a Sinking Fund Commission with multiple members to check one another — and to include the Vice President and Chief Justice as Commissioners who cannot be replaced or removed by the President — belie the notion that an independent agency structure violates the newly minted Constitution. The Sinking Fund Commission directed open market purchases of U.S. securities pursuant to a statutory mandate. It provides a direct historical analogue to the Federal Open Market Committee’s independent purchases of U.S. securities pursuant to a statutory mandate. This analysis shows that the structure of the Open Market Committee is not a novel invention of the twentieth century. Rather, the independence stemming from the Committee’s multi-headed structure and protections from removal has an impeccable originalist provenance which dates all the way back to Alexander Hamilton and First Congress.


Cert Petition in the "For Cause Director" Case
Michael Ramsey

Following up on this post, the challengers have filed a petition for writ of certiorari in Collins v. Mnookin, the case challenging the constitutionality of the Federal Housing Finance Agency (FHFA) on the ground that its director can be removed by the President only for cause.  At Volokh Conspiracy, Jonathan Adler explains: Shareholders Challenging FHFA's Constitutionality Want Supreme Court to Hear Their Case—Even Though They Won.  From the introduction:

Several shareholders of Fannie Mae and Freddie Mac were unhappy with actions taken by the Federal Housing Finance Agency (FHFA) that greatly diminished the value of their shares. The shareholders sued, alleging (among other things) that the FHFA is unconstitutional because its Director is insulated from Presidential control because the director may only be removed for "cause."

Last summer, a divided panel of the U.S. Court of Appeals for the Fifth Circuit agreed with the shareholders' claim. Earlier this month, the entire Fifth Circuit, sitting en banc, agreed (albeit in a highly splintered opinion), affirming the panel's opinion that the limitations on the removal of the FHFA's Director violates the separation of powers.

Despite their victory, the shareholders filed a petition for certiorari last week, asking the Supreme Court to review the Fifth Circuit's decision. Why would a prevailing party do such a thing? In this case, because the shareholders are unsatisfied with the remedy provided by the Fifth Circuit's decision.

A majority of the en banc court found that the FHFA Director's for-cause removal protection infringes upon the President's ability to supervise the agency and ensure that it faithfully executes its legal obligations. A different majority of the en banc court held that the only remedy to which the shareholders were entitled was the prospective remedy of voiding the for-cause removal action. This left the shareholders unsatisfied because such a remedy does nothing to redress the injury—the devaluation of their shares in Fannie Mae and Freddie Mac—that was the basis of their suit.

Among other things, the Collins petition argues that the Fifth Circuit's holding on the for-cause director issue creates a split in authority with the Ninth Circuit's decision in Seila Law v. CFPB (discussed in my prior post, and also on petition to the Supreme Court) but that Collins is a better case for the Court to hear.

(Thanks to Peter Patterson for the pointer).


Marc DeGirolami: First Amendment Traditionalism
Michael Ramsey

Marc O. DeGirolami (St. John's University - School of Law) has posted First Amendment Traditionalism (Washington University Law Review, forthcoming) (28 pages) on SSRN.  Here is the abstract:

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.

Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed them practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.

In Part III, this essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this essay takes no position), then it may support traditionalism as much as originalism.


The Challenge of Naming the Modern Originalist Movement
Mike Rappaport

One sign of the success of an academic movement, like originalism, is that it becomes attractive enough to develop multiple theories that promote the movement in different ways. The existence of these different theories has advantages. The various theories provide multiple perspectives and differing defenses of the movement, making it more likely to prevail in the marketplace of ideas by providing them with a broader appeal. But the existence of various theories also presents challenges. First, how should the objective of the movement be defined? In the case of originalism, how can we define originalism in a way that includes all of the different theories?

Second, how can the terms in the theories be made consistent? In the case of originalism, it is useful to have a common vocabulary so that the different theories can debate and communicate with one another and other scholars about their theories. But the different perspectives of the various theories leads them to use terms in conflicting ways.

Unfortunately, meeting these challenges is not so easy. It takes hard work, mutual respect, and compromise among the adherents of different views. But it is extremely important that these challenges be met if the originalist movement is to succeed in its overall objective of establishing an originalist judicial and legal system.

The Meaning of Originalism

Let me start with the first question: What is originalism? How can we define the term so that it includes the major theories? Larry Solum has the leading view here, defining modern originalism as including those who accept two beliefs—what he calls the fixation thesis and the constraint principle. Solum’s view appears to have been accepted by most originalists and there is much to be said for it as a consensus view of originalism.

The fixation thesis is the view that “the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified.” In other words, the meaning of the text is the meaning it had when it was enacted—its original meaning. The constraint principle is the view that decision-makers, especially judges, should “at a minimum” be constrained by the original meaning of the constitutional text.

In my view, treating these two principles as the core of modern originalism is both helpful and enlightening. The version of originalism that John McGinnis and I champion (original methods originalism alongside a normative view based on the goodness of the Constitution) certainly satisfies these two principles. Under our view, one discovers the original meaning of the constitutional text by using the methods that people at the time of the Constitution’s enactment would have employed to interpret it. This view certainly complies with the fixation thesis. We believe that the original meaning determined by applying these methods fixes the meaning of the constitutional text. Our view also satisfies the constraint principle. In our view, the only situation where one ought to depart from the original meaning is in following certain non-originalist precedents, especially those that have been widely accepted. We hold that precedent is authorized by the Constitution itself, and those departures from the original meaning are relatively limited. Therefore, our view does not violate the constraint principle’s requirement that the original meaning should constrain decision-makers.

A bigger question, I believe, arises for the version of originalism advanced by Will Baude and Stephen Sachs. Under their theory of original law originalism, we are bound by the law that existed at the time of the enactment of the Constitution unless that law has been lawfully changed. The law that existed at the time of the Constitution’s enactment includes what they call the law of interpretation. This law governs how the Constitution should be interpreted.

Baude and Sachs are clear that the law of interpretation does not necessarily yield interpretations that conform to linguistic meaning. But if that is true, then this theory risks requiring judges to be bound by interpretations that do not conform to the text’s original meaning. And thus the theory might violate either the fixation thesis or the constraint thesis, or both.

For example, consider the absurdity rule, an interpretive rule that applied at the time of the Constitution. Under this rule, an interpretation of the ordinary or legal meaning of a provision that was absurd would not be followed. Consequently, original law originalism would recommend following an interpretation of a provision that the theory did not regard as conforming to the original meaning.

If original law originalism, which is an important modern theory of originalism, does not conform to Solum’s two principles, then the principles may need to be modified. Perhaps modern originalism should be defined as focused on either the original meaning or the original law.

Terms within Originalism

Let me now move to the second issue—the various names that are used for different theories within originalism. One type of originalism is called “the New Originalism.” This term usually refers to a group of theories authored by Randy Barnett, Evan Bernick, Larry Solum, and Keith Whittington, which place an important emphasis on what is called the interpretation and construction distinction. To oversimplify, these theorists believe that for a significant portion of the Constitution, the original meaning of the language can “run out” because the language is vague or ambiguous. As a result, these provisions must be given effect by considering matters other than the original meaning.

But there is a problem with calling this group “the New Originalism.” This theory is not the only new theory these days. Other new theories include Baude and Sach’s original law originalism and McGinnis and Rappaport’s original methods originalism. Reserving the term “New Originalism” for only a portion of the new originalist theories is confusing and inaccurate. McGinnis and I have suggested changing the name of the new originalism to “constructionist originalism” but the new originalists have rejected that. Fair enough—no one should be forced to accept a name they don’t like. But that still leaves us looking for an appropriate name for the new originalism.

Unfortunately, the problems in this area continue. Some of the new originalists have sometimes taken to simply calling their theory original public meaning originalism. I think that is problematic. First, Justice Scalia was an important developer of original public meaning, but he did not accept the interpretation/construction distinction. Second, I regard the best form of McGinnis’ and my own theory of original methods originalism to be a type of original public meaning. Thus, reserving original public meaning for the new originalism again seems to risk confusion.

What can one say about these matters? The basic problem is that these different theories have differing views about their subject and try to select names based on their own perspective. Since the theories disagree, it is not surprising that there is disagreement about the names. But this disagreement has significant costs. The first cost is that it creates confusion, especially for those that are not well versed in the theories. Since that is most people, this is a serious problem. Second, these disagreements create friction among the different theorists, since they each view the other’s names as inappropriate or aggressive.

I am not sure that there is a single solution to this matter. But one essential component is that the different theorists should look at these matters not just from their own perspective, but also from an ecumenical perspective. In choosing names, we should be sensitive to the overall situation and how matters can be understood by people who are not very familiar with the theories. We should remember that, while we are competing over our theories, we should also be cooperating in promoting originalism in a wider sense. It is to that wider goal of establishing originalism in general as the dominant constitutional interpretive theory that originalist theorists should pledge allegiance.

One good example of this ecumenical approach is the use of the term “original meaning” in the scholarly literature. While there is disagreement between theories that advocate original public meaning and those that advocate original intent, original meaning has been used as a term to cover both theories. This helps to unify the field: despite their differences, both theories advocate the same end point. In this way, differing theories seem to be pursuing the same objective and are using a term to have the same meaning.

Roderick Hills: Strategic Ambiguity and Article VII’s Two-Stage Ratification Process
Michael Ramsey

Roderick M. Hills, Jr. (New York University School of Law) has posted Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide (74 pages) on SSRN.  Here is the abstract:

The U.S. Constitution ratified in 1788 contains a lot of apparently ambiguous language — abstract phrases like “executive power,” “judicial power,” and “necessary and proper” — the meaning of which seemed to be reasonable debatable. The array of approaches to constitutional interpretation dubbed “originalist” all share the ambition of eliminating these apparent ambiguities by careful exhumation of facts about linguistic usage and constitutional purposes in existence when the Constitution was ratified. This article argues that Article VII’s two-stage ratification process is one such original fact suggesting that apparently ambiguous language ought to be construed as deliberately ambiguous. That process gave the drafters at the Philadelphia convention (the first stage) incentives to choose deliberately ambiguous language as a strategy to mollify critics of the Constitution in the state ratifying conventions (the second stage). The drafters at Philadelphia were overwhelming drawn from “Federalists” — politicians who favored a strong national government. Because critics of centralization (dubbed “Anti-Federalists” by their Federalist opponents) were simply not present in significant numbers at the drafting stage, the Federalists could not use clarifying amendments to determine precisely what their opponents would tolerate in the ratifying conventions. Because Article VII did not permit the state ratifying conventions to approve clarifying amendments, the ratification process created a risk that, offended by specific language in an unamendable proposal, Anti-Federalist ratifiers would reject the entire proposal and doom the project of a stronger central government that everyone desired. By proposing and approving deliberately ambiguous language, Federalist drafters and Anti-Federalist ratifiers could sidestep their most intractable disagreements, making deliberate ambiguity a rational strategy for facilitating ratification. Moreover, this rational strategy is also normatively attractive. The critics of the Constitution deeply resented Article VII as a device for “cramming the Constitution down our throats” through its reversion threat. The presumption of strategic ambiguity reduces the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat that violated contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.

UPDATE:  At Legal Theory Blog, Larry Solum says "Highly recommended. Download it while it's hot!" and adds comments.



Joyce Lee Malcolm: The Right to Carry Your Gun Outside
Michael Ramsey

Joyce Lee Malcolm (George Mason University - Antonin Scalia Law School, Faculty) has posted The Right to Carry Your Gun Outside: A Snapshot History (Law and Contemporary Problems, forthcoming) (26 pages) on SSRN.  Here is the abstract:

The right of self-defense is the core of the Second Amendment right to keep and bear arms as the US Supreme Court has affirmed in two landmark decisions. The right does not, and cannot, stop at the domestic doorstep. Nevertheless there are those arguing that somehow the right “to bear arms” is confined to the home. This essay addresses this latest effort to deny the individual right to keep and bear arms that the Court has affirmed. It focuses on the right to carry a gun outside the home, mindful that the right to keep and bear arms, like other rights, included some practical restrictions. In reviewing the history, the crucial time for an understanding of the meaning of the Second Amendment is the point in the evolution of the Anglo-American right when the amendment was drafted and added to the American Bill of Rights.


John Bickers: Greenbacks, Consent, and Unwritten Amendments
Michael Ramsey

John M. Bickers (Northern Kentucky University - Salmon P. Chase College of Law) has posted Greenbacks, Consent, and Unwritten Amendments (33 pages) on SSRN.  Here is abstract:

“We the people,” the Constitution begins, setting forth the core republican principle that the American government would henceforward be one based upon the consent of the governed. Yet after that announcement the Constitution set forth written rules of varied levels of specificity that clearly mean to bind future generations of those same people. One set of those rules establishes a complicated set of options for amendment: the authors at the end of the eighteenth century made it quite difficult for anything less than a future double supermajority to change their work.

Yet over the centuries there have been countless changes to the society governed by this formative document. The originalist judicial philosophy would prevent such changes from occurring unless they were at least countenanced by the original public understanding of the Constitution among those who made (that is to say, ratified) the document. Other philosophies argue that the current people have a right to remake the Constitution outside of the formal amendment process, an idea resisted fiercely by the originalists. Some thinkers have speculated about the possibility of discovering, at two centuries of remove, an unusual but consistently held view of the founding generation: would the discovery invalidate experiments the United States had adopted in the interim?

No such speculation truly needs to be engaged, as the preeminent example of this puzzle is offered on sheets of paper found in almost every wallet. Each sample of U.S. paper money contains the confident, all-capital phrase “THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE.” The population accepts this assertion. But it has not been ever thus.

Just a century and a half ago, a challenge to the Civil War issuance of paper money as legal tender made its way to the U.S. Supreme Court. There, Chief Justice Salmon P. Chase authored an opinion denouncing this legal innovation that had occurred under the watchful eye of Treasury Secretary Salmon P. Chase. Although some legal scholars have argued that he was wrong, most of the legal world has accepted Chase’s analysis: the Constitution prohibited the adoption of paper money as legal tender by text, by the understanding of those who wrote the text, and by the original meaning ascribed to the text by the portion of the public that ratified it.

Chase’s decision sent shock waves through an American economy that had quickly become reliant on this new device. There is evidence that the search for new Supreme Court justices focused to some degree on finding people who would reject Chase’s originalism in favor of letting We the People decide the issue. When two newly appointed justices joined the Court and reconsidered the matter just a year after the rejection by Chase, they embraced paper money. The embrace of paper money as legal tender remains to this day.

The triumph of that second of the Legal Tender Cases was so complete that Americans today are frequently confident that the use of the phrase “coin money” in the constitutional powers of Congress is meant metaphorically. Chase’s solid demonstration that it was nothing of the kind has faded from the consciousness of all but a few specialists.

What does this unwritten amendment of Congress’s powers mean, then, for the role of consent of the governed? For if the Constitution must be limited to its original public meaning, the United States should immediately revert to an economy suitable for the first years of the Republic, when the decision whether to accept paper in payment of debt was the choice of the individual, and the government could only compel acceptance of coins. Yet that, surely, is not an idea to which more than a bare handful of contemporary Americans would consent.

If “consent of the governed” means consent by those current Americans, they evince it by continue to live in the America of their understanding. They demonstrate such consent to unwritten amendments every time they offer or accept cash believing that the claim made on the face of the bill is true.

The Legal Tender Cases are undoubtedly a challenge for originalism.  I'm not so sure, though, that the Court's ultimate conclusion (that Congress had power to issue paper money) was incorrect.  Article I, Section 10, bars the states from "emit[ting] Bills of Credit; [or] mak[ing] anything but gold and silver Coin a Tender in Payment of Debts."  There's no equivalent textual prohibition on Congress.  Congress has an express power to borrow money -- and, I would think by implication the power to make evidence of that debt freely assignable.  That's essentially a power to create paper money.  So the core question would seem to be just whether Congress can make the paper money legal tender.  Quite arguably that could be found under the necessary and proper power.


Michael Louis Corrado: Insanity and the Historical Understanding of Mens Rea
Michael Ramsey

Michael Louis Corrado (University of North Carolina School of Law) has posted Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea (23 pages) on SSRN.  Here is the abstract: 

In October of this year, the United States Supreme Court will hear the case of Kahler v. Kansas, and it will have the opportunity to answer a question that it has been avoiding for some time: Does the United States Constitution — in particular, do the Due Process and the Cruel and Unusual Punishment clauses — require each of the jurisdictions of the United States to provide an affirmative defense of insanity for those accused of a crime? The petitioner, Kahler, argues that the right to an affirmative defense is "deeply rooted" in our history and tradition, and so is embedded in our Constitution. To undermine that argument, the State of Kansas attempts to show that eliminating the affirmative defense and limiting the admissibility of evidence of mental illness to its role in rebutting mens rea is consistent with history and tradition. This paper argues that the State misreads the history of mens rea, and that that misreading leads to an equivocation in the State's argument.

Kahler [SCOTUSBlog summary here, argument 10/7/19) is one of a number of cases of originalist interest in the upcoming Term of the Supreme Court.  I will try to get an origianlist preview posted shortly.


Eric Segall on Justice Gorsuch on Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Reviewing Justice Gorsuch's New Book: An Originalist Fantasy out of the Old West (reviewing [very harshly] Justice Gorsuch's book A Republic If You Can Keep It).  From the introduction:

Justice Neil Gorush's new book "A Republic If You Can Keep It," isn't completely awful. Made up mostly of old speeches and essays, portions of his judicial opinions, and some new content, he provides a portrait of himself as that fishin'-lovin', down home, Western cowboy who just happened to graduate from an elite prep school in Bethesda, Maryland, and then Columbia, Harvard, and Oxford. But there are photos in the book of him fishing (with Scalia even), and he talks about how he and his wife raised two daughters "along with chickens, a goat, horses, a rabbit, dogs, cats, mice, and more in our home on the prairie." He "loves the West," but if you want to know much more about his personal life than that, well you will be disappointed. In this book, he has much bigger fish to fry, or cattle to lasso, or, well you get the idea.

Much of the book is about how originalism and textualism are great while living constitutionalism, purposivism, and pragmatism are bad. Throughout the book he discusses and provides excerpts from criminal law cases where he ruled for criminal defendants to show that even originalists and textualists can side with those accused of crimes. In this sense, and many others, he follows in the footsteps of Justice Antonin Scalia, who ruled for criminal defendants slightly more often than some might have thought likely given the rest of Scalia's priors. I believe Gorsuch does care about the rule of law when it comes to denying people their liberty, and this prior is of course consistent with his liberty-and-freedom-loving self-descriptions (if not with originalism).  ...

And from the critical parts: 

Throughout the book, Gorsuch argues that originalism and textualism will keep judges in their place whereas living constitutionalism, purposivism, and pragmatism will allow unelected, life-tenured judges to impose their value judgments on the rest of us. But nowhere in the book does Gorsuch discuss the panoply of  important decisions that so-called originalists and textualists Scalia and Thomas signed on to over the years that invalidated laws without any persuasive basis in originalist or textualist methodology--cases like Shelby County v. HolderCitizens United v. FEC, and Seminole Tribe of Florida v. Florida. That would have been an interesting discussion.

More importantly, Gorsuch himself has voted to strike down important statutes in his short time on the Court without demonstrating or even trying to demonstrate ... that original meaning required those results. In Trinity Lutheran v. Missourithe issue was the constitutionality of a Missouri constitutional amendment prohibiting the giving of public funds to religious institutions. This amendment was originally passed in the late 19th century and over 20 states have similar ones. Neither the narrow plurality opinion, which limited its holding striking down the amendment to the specific facts of the case, nor Gorsuch's much broader concurring opinion, contain a word about the Free Exercise Clause's original meaning either at the time of the founding or in 1868 when the Clause was made applicable to the states through the 14th Amendment ...