Paul Stephan: The Waning of the Federal Common Law of Foreign Relations
Michael Ramsey

Paul B. Stephan (University of Virginia School of Law) has posted The Waning of the Federal Common Law of Foreign Relations (THE RESTATEMENT AND BEYOND – THE PAST, PRESENT, AND FUTURE OF U.S. FOREIGN RELATIONS LAW (Oxford University Press: New York, Sarah A. Cleveland & Paul B. Stephan, eds. 2020)) (28 pages) on SSRN.  Here is the abstract:

The nationalist position, occasionally endorsed by the Supreme Court and widely embraced by foreign relations scholars, maintains that the United States must speak with one voice when dealing with the rest of the world, and that principle justifies the federal judiciary’s stewardship of foreign relations law. The premise seems compelling, but the implication is not. This chapter argues that concentrating authority in the federal judiciary to make foreign relations law in the absence of congressional enactments (either statutes or treaties) both ignores the capacity of the States to promote encounters with foreign actors and the tendency of the federal courts toward entropy, rather than coherence.

The 1987 Third Restatement of the Foreign Relations Law of the United States largely endorsed the nationalist position. Its most ambitious claim was that all international law qualifies as the law of the United States for purposes of the Supremacy Clause and the “arising under” prong of federal court subject-matter jurisdiction. In the absence of enacted federal law, it maintained, the federal courts must make rules that oust State law so as to fulfill the international legal obligations of the United States. As to other, nonobligatory bodies of law that might affect foreign relations, the Third Restatement asserted that courts must be vigilant to ensure that the States not adopt law in a way that intrudes into foreign relations.

After initially inspiring courts and scholars alike to pursue the one-voice idea, the Third Restatement later faced a revisionist critique. The Supreme Court began to limit the federal common law of foreign relations as it reined in more generally the lawmaking powers of the lower federal courts. The new Fourth Restatement follows that lead. It confirms that many important legal doctrines that affect the foreign-relations interests of the United States rest on State law, unless and until the federal political branches enact something else. According to the Fourth Restatement, the existence of plenary federal power over foreign relations does not automatically translate into exclusive federal authority.

This chapter argues that the Fourth Restatement not only captures the temper of the times, but that good functional arguments support its position. The growth of international commerce and connectivity since the 1980s has greatly increased pressure on the States to adopt laws that promote foreign contacts and business. Moreover, it has become apparent that a sprawling and diverse federal judiciary cannot pursue nationally uniform law except under stringent conditions that limit, rather than expand, judicial discretion to make law. The Supreme Court accordingly sees its task as inducing lawmaking by Congress and the executive. It pursues this goal by barring the lower courts from adopting stopgaps. As a result, the federal common law of foreign relations has shrunk and may disappear.

Agreed, and good riddance.  As argued here, the federal common law of foreign relations, as a judge-created preemption of state law outside the limits of the Supremacy Clause, is contrary to the Constitution's text and original meaning.  If a state law "intrudes" so much into foreign relations that it causes serious difficulties, Congress can override it.  If Congress, for whatever reason, can't come up with a simple majority to override, the state law stands.  That's the Constitution's design.  Madison wanted to have a council of revision to override inconvenient state laws, but he lost that argument.


Michael Morley: State Constitutional Claims in Federal Court
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted Litigating Imperfect Solutions: State Constitutional Claims in Federal Court (Constitutional Commentary, forthcoming) (29 pages) on SSRN.  Here is the abstract:

In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit emphasizes the important role of state constitutions and state courts in protecting individual liberty. Suggesting that plaintiffs usually inexplicably overlook state constitutional claims, Sutton laments that, in his fifteen years on the federal bench, he has heard only a single case involving a state constitutional claim. The book does not recognize, however, the range of procedural and jurisdictional doctrines that either prevent federal judges from adjudicating state constitutional claims, or allow them to avoid doing so. These doctrines likely deter litigants from devoting time and resources to attempting to litigate state constitutional claims in federal court.

This Book Review examines and suggests reforms to these doctrines, including Pullman abstention, Pennhurst sovereign immunity, and district court discretion to decline supplemental jurisdiction over state-law claims under 28 U.S.C. § 1367(c). Though the Supreme Court has yet to articulate a single, coherent theory concerning federal courts’ proper role in adjudicating unsettled issues of state law, this Book Review’s initial recommendations would reduce friction between federal and state courts, eliminate arbitrary inconsistencies in current doctrine, and facilitate efficient adjudication of litigants’ claims.

Intuitively, I'm conflicted on this topic.  On one hand, my guess is that most of the abstention and related doctrines at issue here are made up by the Court without much foundation in originalist materials.  But on the other, (a) my guess is that at least some of the doctrines that get state constitutional claims into federal court in the first place are also made up, and (b) more importantly, the review's focus suggests a preference for federal court litigation of state claims that the founding generation likely did not share.

In any event, here is a link to Judge Sutton's excellent book 51 Imperfect Solutions (Oxford Univ. Press 2018).


Harold Anthony Lloyd: Gorsuch and Originalism
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Gorsuch and Originalism: Some Critiques from Logic, Scripture, and Art (8 pages) on SSRN.  Here is the abstract:

Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It’s hard to see how such a form of Originalism withstands scrutiny.

First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences’ meaning prevails).

Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus?

Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon what the speaker meant by “planet.” (The same applies to the inclusion or exclusion of Pluto had the speaker used the word “planet” after the discovery of Pluto but before its exclusion by current science.) Unlike the “reasonable” reader of Gorsuch’s Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless.

Fourth, to the extent a judge is principally “constrained” by a text or texts (as he may determine), by dictionaries that he chooses, and by “history” as the judge understands it, isn’t judicial activism encouraged rather than restrained? Talk of a “reasonable” reader masks the fact that there can be multiple “reasonable” conclusions of what a reasonable or unreasonable speaker meant. Is a judge not therefore left to pick definitions and applications of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames, and their terms are subject to multiple definitions therefore raising the very same questions just raised above.

Finally, such Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as “Landscape with the Fall of Icarus” often attributed to Bruegel and which inspired such great ekphrasis as Auden’s “Musée Des Beaux Arts”). These further failures underscore the dysfunction of Originalism in Gorsuch's form noted above.


How to Correct the Context of the “Non-delegation” Debate
Rob Natelson

[Ed.: Rob Natelson is Professor of Law (ret.), the University of Montana, and Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver.]

Julian Mortenson and Nicholas Bagley deserve credit for sharpening thought on the non-delegation principle. They certainly have sharpened mine. They also have collected useful instances of early congressional delegation, which advocates of the non-delegation principle will have to address.

My purpose here is not to rebut their paper nor to define the limits of the non-delegation doctrine. As becomes evident below, I do not think there is a single, coherent non-delegation principle. Rather, my purpose is to correct a few of M&B’s assumptions and suggest a framework for future investigation.

For those who cannot read this entire post, my “syllabus” is as follows:

The correct question is not (as M&B contend) whether legislative power can be delegated but the extent to which delegated legislative power can be further delegated. M&B cite delegations by the British Parliament and by the states to the Confederation Congress, but neither is directly relevant, at least as M&B employ them. Moreover, the Constitution does not delegate to Congress a single “legislative power,” but discrete, enumerated legislative powers. The scope of each, including the extent of delegation approved by the people who conveyed it, must be sought in its particular wording and background.  It is also fruitless to try to identify in the Constitution a non-delegation principle for congressional activities in areas outside the enumerated powers. Originalists should concentrate on defining the proper scope of enumerated powers, the amount of delegation permissible for each, and why some congressional activity—with or without delegation to the executive—is outside the scope of the Constitution’s enumeration.

Because most jurists and law professors, including originalists, have no historical training, we often commit methodological errors when attempting to recreate the original meaning of a document as old as the Constitution. One  common failing is that of anachronism. Anachronism manifests itself in constitutional writings in several different ways. Perhaps the most common is the attempt to reconstruct the ratification-era understanding or meaning from materials generated years, even decades, later. While most of M&B’s historical illustrations are reasonably timely, some are anachronistic: For example, events in 1798 or 1802—whether cited by proponents or opponents of the non-delegation doctrine—tell us little about how other people, subject to different incentives, understood constitutional language a decade or more earlier.

Another kind of anachronism is to retroject, consciously or unconsciously, later attitudes into the founding generation. For example, in my experience modern legal academics do not think much of the traditional canons of construction because, they claim, those canons are tautological, conclusory, contradictory, or meaningless. But whatever we think of them, the fact is that the generation that wrote and adopted the Constitution respected them a great deal. Some legal sources characterized them as equal in authority to acts of Parliament, and ratification-era writers referenced them repeatedly, both expressly and by implication. The framers wrote, and the ratifiers adopted, the Constitution within a culture of that respect.

But Mortenson and Bagley unconsciously reflect modern attitudes when, as Will Foster observes, they fail to even mention an important founding era canon directly on point: Delegata potestas non potest delegari (delegated power cannot be delegated)—sometimes expressed as Delegatus non potest delegare (A delegate may not delegate). This maxim is crucial to any discussion of congressional delegation because, of course, under the Constitution Congress exercises only delegated powers. As I think Gary Lawson has pointed out, the relevant issue is not whether or to what extent legislative power in general can be delegated. The relevant issue is whether or to what extent delegated legislative power can be delegated further. Put another way, to what extent may our congressional agents employ executive branch subagents to carry out legislative responsibilities?

It follows that M&B’s precedents deriving from the British Parliament are not on point, at least not in the way they use them. Although 18th century radical Whigs contended that public officials were agents or trustees for the people and derived all authority from them, that was not the reigning British political theory. The reigning political theory was that Parliament—or more precisely the King-in-Parliament—was itself sovereign and the source of all political power.

It is true that one branch of Parliament, the House of Commons, consisted of members nominally representing the people. This was precisely why they were not permitted to vote by proxy—because delegating their voting authority to others would violate the Delegata potestas maxim. By contrast, peers represented only themselves, so members of the House of Lords were permitted to vote by proxy. The third branch of Parliament was the Crown, and like the Lords, represented itself only. And when the three branches voted together, they (and not the people) were sovereign. At least at this point, therefore, parliamentary delegations are not germane to the authority of a delegated-power legislature to delegate.

M&B also note that the states delegated authority to the Confederation Congress. This case is superficially appealing because prevailing American political theory did rest on radical Whig public trust/agency premises. Indeed, several state constitutions recited so.

But the Confederation example derives, I think, from another anachronism: the common habit of thinking about the Articles of Confederation as “our first Constitution.” Actually, although the Articles comprised part of the “foederal constitution” in the broader, 18th century sense (i.e., the political system), the Articles themselves were not a constitution in our sense of the word.

As contemporaneous dictionaries define the term, a “confederation” was a treaty, alliance, or league among sovereigns. The Articles confirm this characterization: “a firm league of friendship.” In other words, the Confederation Congress was a treaty organization—akin to NATO’s North Atlantic Council. It was not a true government. This was a reason the 1783 Peace of Paris did not refer to our country as solely “the United States.” Rather, the treaty provided that “His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such . . . . ”

The states’ decisions to confederate were consistent with the announcement in the Declaration of Independence that the former colonies were now “free and independent states” with “full power to . . . contract alliances . . . and do all other acts and things which independent states may of right do.” There was nothing new in this: Since the days of ancient Greece, sovereign states were understood to have power to make treaties, and the power to make treaties was understood to include authority to enter into confederations and leagues—a matter discussed extensively during the 1787-90 ratification debates.

Thus, the states’ delegation of authority to the Continental and Confederation Congresses—including what M&B would refer to as “alienation” of all authority to make treaties—was not a delegation of the legislative power. It was an exercise of that treaty power, customarily thought of as executive rather than legislative in nature. The states’ pre-constitutional delegation of authority to Congress is therefore no more relevant to post-constitutional congressional delegation than acts of the British Parliament.

Of course, one might point out that the Articles still were a delegation of delegated power, in seeming violation of Delegata potestas. But there was no violation. The Delegata potestas canon, like other canons of construction, applied in absence of evidence of the parties’ agreement to the contrary. If a principal consented, either expressly or by implication, to the agent’s employment of subagents, then the maxim was inapplicable.

Moreover, consent could be inferred from the nature of the commission. As noted above, the treaty power always had included authority to confederate.

Incidentally, the Articles were not the only document though which states, after Independence and before the Constitution, employed their “foreign affairs” prerogatives to delegate authority to joint assemblies. Between 1776 and 1787, the states continued colonial practice by holding eleven formal conventions among themselves. (This is one reason I am amused by the frequent claim that the Constitutional Convention is the “only precedent” for a general amendments convention under Article V.) Most of these conclaves, including the Constitutional Convention, were empowered only to make proposals. But in at least one instance, the 1780 Philadelphia Price Convention, the states pledged to be bound by any agreement the convention might reach.

Might it also be said that in granting Congress legislative power the people implicitly authorized delegation to executive agencies? Could M&B’s British and Confederation examples be used to show such implicit consent? Not in the way they use those examples.

It is fundamental that the Constitution does not delegate to Congress “the legislative power.” Rather, it delegates about thirty discrete legislative powers—seventeen (clarified by the Necessary and Proper Clause) in Article I, Section 8, and others scattered throughout the document. Specific words and phrases define the scope of each of these powers. The framers were careful drafters, and most of these words and phrases were borrowed from contemporaneous legal or governmental practice. For example, to “regulate Commerce” was an Anglo-American legal phrase embracing the law merchant, protective tariffs, governance and facilitation of navigation, and certain related subjects. Similarly, the framers borrowed the phrase “establish Post Offices and post Roads” from British postal statutes. It encompassed building post offices and intercity roads, designating postal routes and tolls, hiring employees, enacting criminal penalties for misuse of the postal service—everything necessary and customary to develop a working postal system and an intercity highway system.

The extent to which each enumerated power authorized Congress to delegate to executive sub-agents depended on the constitutional words describing the power. The relevant history shows that the phrase “establish Post Offices and post Roads,” probably did not allow delegation to the executive to fix routes—unlike in Britain, where Parliament used exactly the same language to describe its delegation of postal functions to the executive. On the other hand, the enumerated power to “provide and maintain a Navy” contemplates Congress as playing principally a funding role, delegating extensively to executive-branch officers.

It follows that the search for a single “non-delegation” principle applicable to all congressional powers is a futile one. Instead, the scope of permissible delegation of any particular congressional power must be sought in the meaning of the words describing that power.

A remaining difficulty is that today many of Congress’s statutory programs are not within the scope of the Constitution’s enumeration. Of course, we are all familiar with professorial and juristic attempts to square those programs with the Constitution’s text—specimens of the sophistry and pretextual arguments rejected by 18th century jurisprudence and widely mocked during the ratification debates. One sign of the weakness of such arguments is that they offer no way for identifying principled originalist delegation standards for the laws they seek to justify.

Consider, example, the law upheld in Hodel v. Indiana regulating surface mining so as to preserve farm land. The court held (in the teeth of extensive founding-era evidence to the contrary) that the law was a proper exercise of the Commerce Power. Given that holding, how does one determine the extent to which Congress may delegate surface mining rules to an executive agency? Nothing in the pre-constitutional history of “regulating Commerce” informs us of this, because nothing in the pre-constitutional history of “regulating Commerce” pertains to regulating land use.

In such cases, identifying a non-delegation principle rooted in the Constitution is, in my view, a hopeless task. Originalists would better spend their time defining the scope of the enumerated powers, the amount of permissible delegation within each, and why certain federal activities are outside their scope.


Faithless Electors Go to the Supreme Court
Michael Ramsey

On Friday the Supreme Court (as expected) granted cert in Chiafolo v. Washington and Colorado Department of State v. Baca, the faithless electors cases from Washington state and Colorado.  Here is my previous post on the Tenth Circuit's originalist-oriented decision in Baca, with links to earlier originalist pro-faithless-elector commentary by Rob Natelson and Mike Rappaport, and non-originalist commentary by Noah Feldman.

David Post has more at Volokh Conspiracy: The Return of the "Faithless Elector" (linking to amicus briefs he and historian Michael Rosin have submitted in the lower courts and at the cert stage.  He argues:

Our briefs have focused on a single, narrow point: that while we all have come to regard presidential electors as performing a purely formal, ministerial function—a "kabuki democracy"-style ceremonial ratification of the results of the presidential election—it is hard to deny that the Framers had something very different in mind. As Justice Jackson put it (in dicta) some time ago:

"No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, is that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation's highest offices." Ray v. Blair, 343 US 214, 232 (1952).

Hamilton's Federalist No. 68 is the primary, though hardly the only, support for this view of the "original expectation" of the Framers. Hamilton stressed the importance of having the president elected by "men most capable of analyzing the qualities adapted to the station," noting that a "small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation."

The original scheme, in short, contemplated that presidential electors would actually elect the president—not merely ratify the results of an election by others.

All true, but the actual text doesn't say this; it says (Art. II, Sec. 1) "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..."  So I think the originalist question is more difficult to answer.  States have basically unconstrained authority to direct how the electors are chosen, which can include choosing them in a way that likely assures a particular outcome.  But textually the states' power only extends to the choosing, not to the voting itself, so in the end I agree with Professor Post.

ROB NATELSON ADDS:   We at the Independence Institute also submitted an amicus brief, which I authored. It was cited by the Tenth Circuit in its opinion upholding elector discretion.

The brief addresses a host of issues but perhaps its most original contribution is extensive research from debates over the 12th Amendment, which is often cited by those who oppose elector discretion as changing the original system in that respect. As the research shows, that was not the case at all.


Harold Anthony Lloyd: Semiotics in Legal Theory, Practice, and Education
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education (91 pages) on SSRN.  Here is the abstract:

Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction."

How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols.

In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics.


David Rivkin & Lee Casey on the House War Powers Resolution
Michael Ramsey

In the Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey: Congress Declares War, but Only the President Can Make It.  From the introduction:

House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.

Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.

And from later on:

It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.

The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.


Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. 

I partly agree but mostly don't.  I agree that in an authorized war Congress cannot give tactical directions to the President.  (discussed here).  And I agree that absent a congressional prohibition, the President can respond to attacks (and highly imminent attacks)  (discussed here and here).  But (contrary to the linked post), I see the core of the declare war clause to be a prohibition on Presidents initiating war.  (discussed here and at greater length in The Constitution's Text in Foreign Affairs).

The difficult question is whether Congress can prohibit a military response when the President would otherwise have independent authority to respond.  I'm inclined to think Congress has this power, as necessary and proper to its declare war power -- to preserve its power to decide when and whether a war should start or continue.  In any event, it seems clear that Congress could prohibit expenditures on military responses, including against specific countries.


Marc DeGirolami on Greg Weiner on Judicial Restraint
Michael Ramsey

At Law & Liberty, Marc DeGirolami: Wanted: A republican Judiciary (reviewing [somewhat favorably] Greg Weiner’s The Political Constitution: The Case Against Judicial Supremacy [Univ. of Kansas Press 2019)]).  From the introduction:

Professor Greg Weiner’s The Political Constitution: The Case Against Judicial Supremacy, is a new book in an emerging genre of constitutional literature that champions judicial restraint, the intellectual inheritance of James Bradley Thayer, and the late jurisprudence of Justice Felix Frankfurter.[1] In taking aim at the libertarian school of adjudication now ascendant in originalist constitutional theory, Weiner frames the crucial contest of our day as between partisans of judicial restraint and partisans of “judicial engagement.” While appreciating the contributions of this readable, succinct, and thoughtful book, I want in this review to pick a few friendly fights with it.

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

And in conclusion:

Nothing in these observations should take away from the considerable achievements of this book. And one should have no illusions about the bleak prospects of success in the ongoing contest for shaping the republican sensibilities of the American people today in civically healthy ways. But that is the contest, one about the kind of judicial engagement we should want, not about whether we should want it at all.


Eric Segall on Supreme Court Overreaching
Michael Ramsey

At Dorf on Law, Eric Segall:  Supreme Overreaching: The Justices Should Return Gun Control, Affirmative Action, and Abortion to the States.  From the introduction:

President Trump successfully made the Supreme Court an important election year issue in 2016, and he is likely to do so again in 2020. This strategy works because for a long time the Justices have improperly placed themselves in the middle of many of our most important political, social, and cultural disputes. But elections shouldn’t be about judges, and courts shouldn’t be this important. 

In a recent essay for Dissent magazine, Yale Professor Samuel Moyn wrote an excellent piece criticizing what he calls our “juristocracy.” According to Moyn, judicial review

has been a disaster for the democratic premise that the people themselves choose their own arrangements, shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular interests and needs require. Only democratic politics can.

Why do we give unelected, life-tenured judges the important power to overturn state and federal laws? The original and best justification for judicial review is that our written Constitution forecloses some choices elected leaders may make, and we need an independent branch of government to enforce those limitations. This system makes sense where the Constitution’s rules are reasonably clear. However, the Supreme Court has for a long time taken it upon itself to invalidate legislation even when constitutional text is imprecise, its original meaning very much in doubt, and reasonable people can disagree over whether the Constitution should foreclose specific voter decisions.

And in conclusion:

If Chief Justice John Roberts truly wants the American people to view judges in general and the Supreme Court in particular as non-political, as he claims, a first and necessary step would be for him to convince at least four of his brethren that the Court needs to step away from all three of these divisive issues as none of them violate clear constitutional text or well-accepted historical accounts of that text.

The Supreme Court has played much too large a role in our system of government for far too long. The Justices should let politics run its course absent clear constitutional mistakes by elected leaders. As Professor Moyn pointed out, “Juristocracy or democracy? It is an easy call.” A good start to restoring robust democracy would be to for the Court to extricate itself from the politics of abortion, gun control, and affirmative action.

Though it's not my first choice, perhaps a compromise of this sort is needed to defuse the "confirmation wars."  Still, I'm not sure why it's two conservative concessions for one liberal concession.  Maybe throw in returning the death penalty to the states?

But the real practical problem with this version of judicial restraint is the overwhelming temptation to prefer judicial restraint for rights one doesn't like and judicial engagement for rights one likes.  To his great credit, Professor Segall doesn't give in to this temptation.  I don't see, though, why he thinks Justices would not.

I think any solution would have to be a structural one -- perhaps require 7 of 9 votes to invalidate a statute or executive action (thus approximating the vote of the states required to amend the Constitution).  If you're not willing to think about that reform, you're not really in favor of judicial restraint.  (But, I'm not sure I am).


Delegation, Wilson, and Madison
Chris Green

Professors Julian Davis Mortenson and Nicholas Bagley recently made a big splash (over 1000 downloads in 2 weeks) with their attack on the originalist merits of nondelegation doctrine, Delegation at the Founding. Ilan Wurman has given an initial response to some aspects of the paper, as has Will Foster just below, and there has been no small amount of discussion on Twitter, some by me. (At one point I very unfairly mischaracterized the paper because of a lapse in my own memory.)

While it is possible that Mortenson and Bagley will rephrase their thesis in later versions of the article—I certainly hope they do—they currently put it this way (at 3): “In fact, the founding generation saw nothing untoward about provisionally delegating the power to make rules so long as Congress did not permanently alienate its power to make laws.”

This is quite a bracing thesis, and immediately attracted even my non-specialist’s attention. (I’ve always assumed that Justice Harlan had the basic picture right in 1892 in Field v. Clark--"That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution”--but of course 1892 is a long time after 1787.)  After the jump I will explain problems with how Mortenson and Bagley characterize some important details regarding James Wilson and James Madison.

Continue reading "Delegation, Wilson, and Madison
Chris Green" »

Did the Non-Delegation Doctrine Exist at the Founding?
Will Foster

I've read through Nicholas Bagley and Julian Davis Mortenson’s important new paper, “Delegation at the Founding.” I just wanted to offer a few quick comments here. (For the record, I am sympathetic to some of the concerns raised by Ilan Wurman in his incisive post here. But I will try not to repeat his remarks below.)

1.  For starters, it’s worth noting just how broad the delegations Bagley and Mortenson’s theory allows are. “From the founders’ perspective,” they write, “nothing in the Constitution prohibited delegations of rulemaking power—no matter how broad, vague, or consequential—so long as the exercise of that power ultimately remained subject to congressional oversight and control” (pp. 3-4 of the most recent draft, as of this writing). Apparently, according to the original meaning, Congress could constitutionally pass a law saying, “The President shall have the power to declare war, confirm Supreme Court justices, and regulate interstate commerce.” 

Or maybe a judge could even write an opinion saying, "The President shall determine, at his discretion, the legal obligations of the parties before this court.” (Then again, I suppose it could be that there’s something about the nature of “judicial power” that prevents the crazy latter scenario from being permissible.) 

One has to wonder: Would the Founders really have believed it constitutional for virtually all power to be lodged in one branch of government? Of course, perhaps the concerns of their world were so different from ours that this possibility seemed too remote to be worth protecting against. 

2.  One of the few major holes in this quite lengthy and comprehensive article is the almost complete lack of discussion of fiduciary constitutional theory. Robert Natelson is not cited at all, and Gary Lawson and Guy Seidman’s A Great Power of Attorney book isn’t cited, either (although some of Lawson’s other work is mentioned). To be sure, I remain a bit skeptical of fiduciary constitutionalism as a historical matter (partly for the reasons given by Richard Primus in his article “The Elephant Problem”). But the theory at the very least presents important questions for anyone interested in the non-delegation doctrine’s Founding-era status (or lack thereof). 

For example, in their book, Lawson and Seidman -- drawing on some of Natelson’s research as a starting point -- discuss the Founding-era private law maxim delegata potestas non potest delegari (someone to whom powers are delegated cannot further delegate that authority). As Matthew Bacon put the point in his 18th century treatise, “One who has an Authority to do an Act for another, must execute it himself, and cannot transfer it to another; for this being a Trust and Confidence reposed in the Party, cannot be assigned to a Stranger.” 

Bagley and Mortenson appear to believe that the notion that government agencies could re-delegate their power was widely accepted in the Founding era (pp. 26-29). They might well be correct. Perhaps, say, the rule against re-delegation only applied to private agency relationships, not government branches. Or maybe one of the several exceptions to the rule that Lawson and Seidman identify was understood to apply. However, Bagley and Mortenson do not really discuss Founding-era fiduciary law at all, so readers are simply left to guess at how they would respond to Lawson and Seidman’s evidence. 

3.  Bagley and Mortenson spend many pages arguing that the boundaries between legislative, executive, and judicial power were porous at the Founding. But it is somewhat unclear to me what they hope to prove using that evidence. It might be true that in abstract, informal discourse those three terms had contested meanings, but with respect to our Constitution I am inclined to agree with Justices Alito and Gorsuch that Executive Branch entities “can only permissibly exercise executive power,” not legislative or judicial power. That is, if an executive branch agency is acting lawfully, it's necessarily exercising “executive power,” not any other kind of power -- as a constitutional matter, at least. True, Justices Stevens and Souter have taken the opposite view -- in their opinion, the Executive Branch can constitutionally exercise legislative power, so long as Congress authorizes such exercise. And on page five of their article, Bagley and Mortenson appear to side with that view. 

But I am more inclined to agree with Adrian Vermeule and Eric Posner that, to the extent delegations of policy discretion are permitted (whatever that extent might be), they are permitted because “agents acting within the terms of … a statutory grant are exercising executive power, not legislative power.” (Vermeule and Posner go so far as to suggest that “a statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power.”)

4.  Bagley and Mortenson use many examples of broad delegations to territorial governments to support their argument that the Founding generation had little problem with major delegations of policy-making discretion (pp. 70-74). But what if territorial governments are a unique scenario? True, some proponents of a broad non-delegation doctrine, including Lawson, argue that Congress cannot constitutionally create territorial legislatures or other governing bodies. But others -- including apparently Justice Gorsuch -- disagree. As Justice Alito wrote in 2018, joined by Gorsuch: “[U]nlike any of its other powers, Congress’s power over the Territories allows it to create governments in miniature, and to vest those governments with the legislative, executive, and judicial powers, not of the United States, but of the Territory itself. For that reason we have upheld delegations of legislative, executive, and judicial power to territorial governments despite acknowledging that each one would be incompatible with the Vesting Clauses of the Federal Constitution if those Clauses applied.”

Bagley and Mortenson evidently anticipate this counter-argument, and respond that “[t]he substantive scope of Congress’s authority does not bear on the classification of that authority, much less on its delegability” (p. 71). I do not find this response very persuasive. It could well be that certain powers, by their nature, imply an ability to delegate, while other powers do not. I am not sure, but I don’t think we can dismiss the possibility out of hand. 

Despite the above qualms, I do really appreciate Bagley and Mortenson’s paper, which sets forth a lot of new research. Many examples of delegations they cite indeed seem quite broad (although it’s worth investigating whether the statutes actually granted as much discretion as their words suggest) -- and the authors quite damningly note that there seem to be very few clear examples of Founding-era Americans referencing any sort of robust non-delegation doctrine. On the other hand, as even Bagley and Mortenson acknowledge, there are some examples of statements to that effect. And, particularly after re-reading the relevant portion of Lawson and Seidman’s book yesterday, I still find some of their fiduciary argument compelling. Bagley and Mortenson’s paper does not mention it, much less refute it. Even so, it could well be that Bagley and Mortenson’s argument, although not decisive, casts enough doubt on the Gorsuch argument for stare decisis to kick in and do the rest of the work. Even Justice Thomas, after all, believes precedent should stand unless it is demonstrably erroneous.

RELATED (by Michael Ramsey):  Andrew Coan (Arizona) recently posted this paper on SSRN:  Eight Futures of the Nondelegation Doctrine (Wisconsin Law Review, 2020 forthcoming).  Here is the abstract:

Among close observers of the United States Supreme Court, there is a palpable sense of anticipation. Conservatives eagerly anticipate a sweeping constitutional revolution. Liberals regard this prospect with mounting dread. Using the nondelegation doctrine as an illustrative example, this Essay argues that both sides should temper their expectations.The reason is straightforward, if frequently overlooked: The Supreme Court is a tiny institution capable of deciding only a small fraction of the constitutional questions generated by the operation of the U.S. government. In many of the most important constitutional domains, the limits of judicial capacity strongly constrain the Court to defer to the political process, to cast its decisions in the form of hard-edged categorical rules, or both. Since categorical rules are frequently clumsy and poorly matched to their underlying purposes, the limits of judicial capacity create a strong hydraulic pressure on the Court to employ deferential doctrines like rational basis review that effectively cede the field to other institutional actors.


A Response to Professor Ramsey
David Schwartz

[Ed.: For this guest post we welcome David Schwartz, the Foley & Lardner Bascom Professor of Law at the University of Wisconsin Law School.]

I’m grateful for Michael Ramsey’s well-argued comment on my Legal History Blog post, and for the opportunity to reply. Professor Ramsey and I agree that context can make semantic meaning clear even when some text is ambiguous in isolation. For the sake of argument, I will concede that some historical contextual enrichments can reasonably be considered within the realm of semantic meaning (e.g., that “charter of government” might refer in the U.S. context to the Articles or the Constitution). And I think Professor Ramsey is right to say that some purported disputes over meaning can be resolved on semantic criteria, when a disputant takes a position that is implausible in light of “contextually enriched” meaning. To be clear, my point is limited to semantically plausible disputes.

But I think there may be more to my examples than Professor Ramsey credits. If I referred to the “original charter of government” in a 1,000-word blog post or a law review article, there would undoubtedly be sufficient context to make the meaning clear. But suppose I spoke more delphically, and limited my utterance to the single sentence, “the original charter of government of the United States was deeply flawed.” There would be insufficient context to determine whether I meant the Articles or the Constitution. Ramsey asserts that “original charter of government” necessarily means the Articles of Confederation. But consider the opening section of Gibbons v. Ogden, which describes the transition from the Confederation to the Constitution in these terms: “when these allied sovereigns converted their league into a government…” I thus rely on no less an authority than John Marshall in saying that “original charter of government” could well refer to the Constitution, because many nationalists at the time plausibly believed that the Articles of Confederation system did not merit the term “government.”

Many provisions in the Constitution are more Delphic than thickly contextualized. This brings me to my second example. Professor Ramsey’s reading of “provide” in the General Welfare Clause is undoubtedly the prevailing one, and is perhaps even the most natural reading. But not all “correct” constitutional interpretations are the most linguistically natural ones. I think the contextual enrichments he implicitly relies on to determine the meaning of “provide” are political rather than semantic ones: e.g., the desirability of a government of limited enumerated powers. He points primarily to the idea of a limiting enumeration, which itself relies on what I think are non-semantic contextual enrichments.

Professor Ramsey argues that reading “provide” to mean ”legislate” in the General Welfare Clause is semantically implausible because it would reduce the rest of the enumeration to surplusage. This Madisonian argument is not a semantic one, and it is unpersuasive. It implies that a general term necessarily makes a following specific itemization redundant or meaningless. But if this were right, it would eliminate the ejusdem generis canon, in which specific itemizations that follow a general term are understood to explain the contours of the general term. “Provide” could mean “legislate” to a drafter (or reader) who believes it important to specify that “whatever else ‘general welfare’ means, it certainly includes commerce regulation, bankruptcy laws, etc.”


More on Impeachment and English History
John Vlahoplus

It is dangerous to analogize to English or U.K. law because (a) it is debatable whether that law has any bearing on U.S. impeachments, and (b) I am not trained in it.  That said, here are excerpts from U.K. authorities along with analogies to impeaching and trying a U.S. President.

The first excerpts are from Erskine May, the standard U.K. authority on parliamentary practice, beginning here (1851 edition, footnotes omitted):

It rests, therefore, with the House of Commons to determine when an impeachment should be instituted…   [T]he member is ordered to go to the lords, ‘and at their bar, in the name of the House of Commons, and of all the commons of the United Kingdom, to impeach the accused; and to acquaint them that this house will, in due time, exhibit particular articles against him, and make good the same.’  The member accompanied by several others, proceeds to the bar of the House of Lords, and impeaches the accused accordingly…  A committee is appointed to draw up the articles, and on their report, the articles are discussed, and, when agreed to, are ingrossed and delivered to the lords, with a saving clause, to provide that the commons shall be at liberty to exhibit further articles from time to time...

The lords appoint a day for the trial, and in the meantime the commons appoint managers to prepare evidence and conduct the proceedings, and desire the Lords to summon all witnesses who are required to prove their charges.  The accused may have summonses issued for the attendance of witnesses on his behalf, and is entitled to make his full defence by counsel.

When the case is thus concluded, the lords proceed to determine whether the accused be guilty of the crimes with which he has been charged…  If the accused be declared not guilty, the impeachment is dismissed; if guilty, it is for the commons, in the first place, to demand judgment of the lords against him; and they would protest against any judgment being pronounced until they had demanded it…  The necessity of demanding judgment gives to the commons the power of pardoning the accused, after he has been found guilty by the Lords…

So important is an impeachment by the commons, that not only does it continue from session to session, in spite of prorogations, by which other parliamentary proceedings are determined; but it survives even a dissolution, by which the very existence of a Parliament is concluded.

The last is from the House of Commons Library Briefing Paper Number CBP7612 (June 6, 2016), page 6, available for download here.

During the Oxford Parliament in 1681 … the Commons passed a resolution ‘That it is the undoubted right of the Commons to impeach before the Lords any Peer or commoner for treason or any other crime or misdemeanour, and that the refusal of the Lords to proceed in Parliament upon such impeachment is a denial of justice and a violation of the constitution of Parliament’.

These suggest by analogy that:

(1) The Senate cannot refuse to try an impeachment brought by the House;

(2) The House has the right to manage the prosecution;

(3) The House and the President have the right that the Senate summon witnesses;

(4) The impeachment process survives the end of congressional terms; and

(5) The Senate cannot pronounce a guilty judgment unless and until the House demands it, allowing the House to pardon the President even if the Senate finds him guilty.


UPDATE -- FURTHER THOUGHTS (by John Vlahoplus):

Here's a bit more English legal history on impeachment, suggesting that Andrew Hyman's description and the one above have longstanding precedent.  The following excerpt is a description of the process from counsel for a defendant in an impeachment in Parliament in 1681:
The Commons they bring up the impeachment to the Lords, the Commons they prosecute the impeachment, they manage the evidence upon the trial; and when the Lords have considered of it, and have found the fact, the Commons come and demand judgment, and judgment is given at the prayer of the Commons, and no otherwise...

Samuel Estreicher & Christopher Owens on Impeachment and Crime
Michael Ramsey

At Verdict, Samuel Estreicher & Christopher Owens: Impeachment of the President Normally Requires a Crime.  From the core of the argument:

Although the matter has been contested over the course of our history – and as noted, there has until now been no presidential impeachment (as opposed to judicial impeachments, which proceed under the same constitutional clause as presidential impeachments but perhaps have presented a more intractable problem because of the life tenure of Article III judges) without a crime – the prevailing view among commentators is that impeachment does not require an indictable offense; rather, the “other high Crimes and Misdemeanors” formulation is thought to invite a broader canvass of English common law precedents to include a President’s abuse of authority, other abuse of the people’s trust, or even gross dereliction of duty.

One problem with the prevailing approach is that the English precedents do not themselves yield a clear set of principles capable of deterring abusive resort to impeachment. Indeed, as Blackstone observed in his Commentaries, “mal- administration of such high officers as are in the public trust and employment by public officials” was “the first and principal” “high Misdemeanor” publishable by impeachment in Parliament. Thus, the very technique of interpretation urged by these commentators leads us to a ground for impeachment largely foreclosed by the debates in the Constitutional Convention.

The noncriminal-offense interpretation is also difficult to square with other aspects of the constitutional text. As former Justice Benjamin Curtis, who dissented in Dred Scott v. Sandford, 80 U.S. (19 How.) 393 (1867), argued in defense of President Andrew Johnson, the Constitution refers to impeachment in seven places—references (emphasis supplied) which taken together suggest a legal proceeding to try a criminal offense: (1) the Impeachment Clause’s reference to “Conviction” for “high Crimes and Misdemeanors “; (2) the Senate’s power “to try all Impeachments” (Art. I, § 3, cl.6); (3) the fact that the Chief Justice shall preside when the President is “tried” (id.); (4) the exclusion in the jury trial guarantee for “ all Crimes, except in cases of Impeachment” (Art. III, §2, cl. 3); (5) the pardon clause granting the President the power to “Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment” (Art. II, §2, cl, 1); (6) the requirement that two-thirds of the Senate vote for a person to be “convicted” of an impeachable offense; and (7) the provision limiting the reach of “Judgement in Cases of Impeachment… to removal from Office” (Art. I,§ 3, cl. 7). (Note that, as with certain immigration deportation proceedings, a legal proceeding that involves an adjudication of whether a criminal offense has occurred is not necessarily a criminal proceeding triggering constitutional double-jeopardy considerations.)

Wherever the Constitution refers to “crimes” or “offenses” the reference is to criminal offenses. Nowhere are such terms used to refer to noncriminal conduct or conduct that could be proscribed without a basis in a preexisting prohibition.

The foregoing suggests a textual basis for an objective standard that provides some constraint on political impulse to misuse impeachment and one that is consistent with the past practice of presidential impeachment—a minimum requirement, or at least a very strong presumption, that the President committed a crime under pre-existing federal law and perhaps certain state law dealing with garden-variety crimes.

(Via Neil Buchanan at Dorf on Law, who disagrees strongly).

A major structural problem with the impeachment-requires-a-crime view, in my view, is that it would not allow impeachment for many presidential violations of the Constitution.  Some of the more likely presidential violations, such as declaring war without Congress' approval or spending money without an appropriation, do not seem to have any obvious checks aside from impeachment, and yet aren't likely to be criminalized.  Without at least the threat of impeachment, these constitutional checks would seem to have little practical effect.  So I think it would be surprising if the founding generation had understood impeachment not to reach constitutional violations.


Nathan Coleman on Michael Faber on the Anti-Federalists
Michael Ramsey

At Law and Liberty, Nathan Coleman (University of the Cumberlands, higher education and history): Remembering the Anti-Federalists Rightly (reviewing [somewhat favorably] Michael J. Faber, An Anti-Federalist Constitution: The Development of Dissent in the Ratification Debates [University Press of Kansas 2019]).  From the introduction:

For most of American history, Anti-Federalists, those opponents of the Constitution, played the role of the loser. The attention received from scholars castigated them as “men of little faith,” arch-conservatives troubled by the rising democratic tide of American politics. Among the only credit they received came from their calls for a bill of rights. Beginning in the late 1970s, Anti-Federalist fortunes start to shift. The first glimpse of this change came with Herbert Storing’s collection of Anti-Federalist writings. Storing’s slim, but compelling, essay opening the collection, What the Anti-Federalist Were For, revealed how their opposition to the Constitution stemmed from serious philosophical concerns and differences with their Federalist counterparts, and not just obstructionism or pro-slavery partisanship. Saul Cornell’s The Other Founders: Anti-Federalism and the Dissenting Tradition in American History (1999) took Storing’s findings a step further by exploring the social background of Anti-Federalists, and, more importantly, tying their political thought and opposition to the American tradition of resisting centralized authority. Finally, in 2011, Pauline Maier’s Ratification: The People Debate the Constitution placed the Anti-Federalists (a term she avoids using) at the center of her story. For Maier the Federalists secured victory in the ratification conventions through political maneuvering rather than through the inherent force of their arguments. This made Anti-Federalists and their arguments once again relevant for scholars as anti-Federalist criticisms were not addressed forthrightly in the debates and thus not really vanquished.

Despite these shifting fortunes, there remained no single, comprehensive treatment of Anti-Federalists’ political thought. Michael J. Faber and his An Anti-Federalist Constitution: The Development of Dissent in the Ratification Debates has changed that. Building on the works of Storing, Cornell, Maier, as well as his earlier work on the Federalists, Faber argues that a combination of disorganization and tactical missteps forced the Anti-Federalists to transform their political thought from one aimed at broad opposition to working to secure changes to the Constitution.

And from further on:

Faber’s distillation of Anti-Federalist thought into three strands and his argument for their sectional distinctions creates interpretative problems. Despite offering scholars a shorthand for untangling the varied and often repetitive arguments made by the Constitution’s opponents, those three strands lack the clear delineation and sectional distinction Faber suggests. Too often, the distinctions appear forced. As a case in point, Faber quotes William Grayson saying that “In the first place I think liberty a thing of too much importance to be trusted on the ground of implication: it should rest on principles expressed in the clearest & most unequivocal manner.” Faber labels this passage as an expression of Rights Anti-Federalism, but since it deals explicitly with the ambiguous nature of Congressional power, he could just as easily have designated it as Power Anti-Federalism.

The same holds for his sectional differences. While Faber does eschew of Saul Cornell’s socio-economic explanations in favor of political reasons for the sectional distinction, nevertheless, the strands of thought and sectional distinctions he claims exists disappear in favor of a general exploration of Anti-Federalist positions. Faber even admits throughout that “these three strands did not remain separate” or that while New York Anti-Federalists adhered to Power Anti-Federalism, “there were Rights Anti-Federalist appeals” as well. One could go on, but Faber’s numerous admissions suggest that he strains too hard to find distinctions. A reason for these strained distinctions comes from the implicit suggestion that if a writer is talking about liberty, he must be a Rights Anti-Federalist; if state sovereignty it must be Power Anti-Federalism; and popular support means Democratic Anti-Federalism. This overlooks how Anti-Federalists feared consolidation above all other issues precisely because the loss of state sovereignty equated to the loss of both liberty and popular government.

These interpretative problems present themselves most clearly in Faber’s counter-factual account of what an Anti-Federalist Constitution would have looked like had they written the document. Guided by the framework of the Constitution, Faber’s imagined “Anti-Federalist Constitution” includes a “We the People of these Sovereign States” preamble, a declaration of political principles similar to Revolutionary state constitutions, and revisions to Congressional authority including the elimination of the power of taxation. Although Faber may have designed this counter-factual exercise as a teaching tool—he does not say—the entire section remains, at best, ancillary to his thesis. At worst, it further undermines the book’s contention for the various threads and sectional differences that constitute Anti-Federalist thought. For the Anti-Federalist Constitution to take shape as he believes it would have, the distinctive elements of their thought had to be less distinct and more fluid across sections than Faber claims.

If these interpretative problems are kept in mind, An Anti-Federalist Constitution is a work worth consulting. Faber does provide a new and convincing account that Anti-Federalists supported a bill of rights only after recognizing the failure of their general opposition. The discussion of Anti-Federalists’ general political thought, with its inclusion of lesser known writings, offers a deeper and more nuanced account of their political thought than any previous work.

And from Amazon, here is a description of Professor Faber's book:

What would an Anti-Federalist Constitution look like? Because we view the Constitution through the lens of the Federalists who came to control the narrative, we tend to forget those who opposed its ratification. And yet the Anti-Federalist arguments, so critical to an understanding of the Constitution's origins and meaning, resonate throughout American history. By reconstructing these arguments and tracing their development through the ratification debates, Michael J. Faber presents an alternative perspective on constitutional history. Telling, in a sense, the other side of the story of the Constitution, his book offers key insights into the ideas that helped to form the nation’s founding document and that continue to inform American politics and public life.

Faber identifies three distinct strands of political thought that eventually came together in a clear and coherent Anti-Federalism position: (1) the individual and the potential for governmental tyranny; (2) power, specifically the states as defenders of the people; and (3) democratic principles and popular sovereignty. After clarifying and elaborating these separate strands of thought and analyzing a well-known proponent of each, Faber goes on to tell the story of the resistance to the Constitution, focusing on ideas but also following and explaining events and strategies. Finally, he produces a “counterfactual” Anti-Federalist Constitution, summing up the Anti-Federalist position as it might have emerged had the opposition drafted the document.

How would such a constitution have worked in practice? A close consideration reveals the legacy of the Anti-Federalists in early American history, in the US Constitution and its role in the nation’s political life.


The House of Representatives Has Still Not Yet Accomplished the Purported Impeachment of President Trump
Andrew Hyman

I agree with co-blogger Michael Ramsey when he says that the House vote on articles of impeachment was not in itself an impeachment.  Thus, President Trump has not yet been fully impeached, and co-blogger David Weisberg is of the same opinion.  My reasoning is a bit different, though.

In the 1773 edition of his dictionary, Samuel Johnson defined the word “impeach” this way: “to accuse by public authority.”  Individual Senators' pre-trial accusations on television surely do not qualify as impeachment, because they are more like personal opinions than statements by public authority.  An official vote of the House of Representatives gets a lot closer, but what the House has done so far is incomplete.  It is not a full impeachment because the Constitution also contemplates an accusation by a prosecutor in a Senate trial; that accusation by a prosecutor is just as much an accusation by public authority as the preceding accusation by the House of Representatives, and both are powers reserved “solely” to the House of Representatives.  The Constitution provides that only the House of Representatives can make such an accusation, and that is why the right to prosecute impeachment in the Senate is a constitutional right of the House of Representatives, rather than a mere courtesy that the Senate can revoke any time it wants.

Indeed, as I mentioned previously, the leading legal dictionary of the founding era explicitly defined impeachment as including prosecution: “IMPEACHMENT, [from Lat. impetere.]  Is the Accusation and Prosecution of a Person for Treason, or other Crimes and Misdemeanors.”  Were it otherwise, the Senate could, for example, appoint the Chairman of the Senate Judiciary Committee as its prosecutor in all impeachment cases, even if that Chairman declines to recuse from voting on Articles of Impeachment. 

In The Federalist, Alexander Hamilton wrote that the Impeachment Clause deprives the Senate of all accusatory power: “[A]ssigning to one [house] the right of accusing, to the other the right of judging; avoids the inconvenience of making the same persons both accusers and judges....”  Those who now argue that the impeachment of Donald Trump has already been fully accomplished by the House of Representatives are saying just the opposite: that the Senate is free to control the prosecution during a Senate trial.

As far as English history is concerned, James Wilson described it accurately in 1791, elaborating upon what Hamilton had written in The Federalist:

Upon the separation of the two houses [in England], it became an obvious improvement, that the power of trying those high misdemeanors should belong to the house of lords, and that the power of conducting the prosecution should belong to the house of commons. In consequence of this improvement, the inconsistent characters of judge and accuser were no longer acted by the same body.

The House very likely will send its Articles of Impeachment to the Senate, and appoint managers to prosecute the impeachment of President Trump.  But if it does not, then no impeachment will have been accomplished in the constitutional sense.  Yes, this is partly about semantics, but it is also about who is constitutionally entitled and obligated to appoint prosecutors for Senate impeachment trials.  The House is free to use the word "impeach" however it wants, and free to say that the President is impeached, but so far that is not entirely true in the federal constitutional sense.  

The federal constitutional sense of impeachment can be found in state laws that say, "An impeachment is the prosecution, by the House of Representatives, before the Senate...." (e.g. see laws of Kansas and Oklahoma).  This is not a coincidence.

MICHAEL RAMSEY ADDS:  Andrew makes a good point here.  I will have to rethink my suggestion that the House does not have the constitutional right to conduct the prosecution.

Harvard Law School Seminar on Originalism
Michael Ramsey

At Volokh Conspiracy, Keith Whittington reports that he is teaching a course on originalism at Harvard Law School this semester.  The syllabus is here.  From the introduction:

This course will explore the scholarly debate surrounding originalism as a theory of constitutional interpretation. There will be some consideration of prominent criticisms of originalism, but the class will mostly focus on the internal developments and debates within the originalism literature. Topics will include the normative justifications for originalism, the role of precedent within originalism, the interpretation/construction distinction, and the relationship between originalism and judicial deference.


Angus McClellan: Thomas M. Cooley and Enduring Constitutional Principles
Michael Ramsey

Angus McClellan (Claremont Graduate University) has posted Thomas M. Cooley and Enduring Constitutional Principles (21 pages) on SSRN.  Here is the abstract:

Judge Thomas M. Cooley was one of the last of an old order: a jurist and constitutional treatise-writer cloaked in the traditions of Blackstone, Story, and Kent, a guardian of written constitutions, fundamental legal principles, and the English common law as adopted and modified by the states. His career peaked during Reconstruction and closed at the dawn of the Progressive era, when statesmen and jurists were first interpreting the most consequential amendment affecting the relationship between the states and central government. Many point out he was the most cited authority in federal and state case law for nearly half of a century, so knowing Cooley is knowing how the men of this transformative era understood our most fundamental law. He is in many ways a founder of modern constitutional law, and yet he is almost completely forgotten. Nearly 75 years of tunnel-vision scholarship often revolving around tenuous claims that Cooley was a political or economic ideologue has deprived legal thinkers of insights into how to understand American laws and constitutions. The purpose of this paper is twofold: first, to demonstrate that Cooley was no politician and was indeed a principled jurist. Second, to present his constitutional arguments and judicial philosophy by letting Cooley speak for himself through his most prominent treatises and his own judicial opinions.

To map this paper broadly, Section I will review the existing, most prominent literature that has cast Cooley as a political or economic ideologue. Few have written on him exclusively, and none of them have separated his political background from his later judicial career. Section II will examine Cooley’s understandings of American constitutions and legislatures generally, with particular emphasis on his view of implied limitations on American constitutional government. Section III will turn to his judicial philosophy, methods of statutory and constitutional interpretation, and then three case studies from his time on the Michigan Supreme Court.

(Via Larry Solum at Legal Theory Blog.)


David Schwartz on Originalism and Indeterminacy
Michael Ramsey

At Legal History Blog, David Schwartz (Wisconsin): Originalism and the Limits of Semantic Meaning.  From the introduction: 

The prevailing version of originalism—known as “original public meaning” (OPM) originalism—purports to be an historical semantic inquiry. The legally controlling meaning of a particular word, phrase, or clause in the Constitution is what it would have meant to a hypothetical reasonable person during the ratification debates. As of ratification, these meanings became “fixed.” (A small point: June 1788 when the ninth state ratified and the Constitution was deemed to be effect, or later?) While originalism in all its flavors, including OPM originalism, has been subject to various damning criticisms, I would like to suggest a further critique of the concept of original public meaning that has not to my knowledge been advanced.

My claim is this: where the ratification debates reveal a dispute over multiple meanings that are semantically plausible, semantics cannot provide a basis to choose one over another. If this is right, then the range of disputed constitutional meanings that can arguably be addressed by OPM originalism is even narrower than its critics have suggested.

And in conclusion: 

In sum, there is no original public meaning – in the semantic sense argued by OPM originalists – for any constitutional text whose meaning was debated during ratification. This does not mean that the converse is true. Terms whose meaning becomes contested in later, unforeseen applications are not necessarily subject to semantic resolution merely because their semantic meaning was not debated in ratification. The disputed meaning of “citizen” in the Privileges and Immunities Clause in the Dred Scott case is an example. But the only candidates for resolution by OPM originalism are terms whose meanings were not debated during ratification.To pick one among two or more plausible candidate meanings that had support during the ratification debates is to move the question from semantic meaning to something else.

I think this criticism is mistaken (or at least overstated) on two grounds.  First, originalism does not contend that all (or even most) disputed constitutional issues can be settled by application of the original public meaning.  It only contends that where the original public meaning can be found, it should be followed.  Even if it were true that any dispute in the ratifying debates produced an irresolvable ambiguity, there are many modern issues that were not disputed during ratification.  For example, I'm not aware that anyone during ratification claimed the President could begin military hostilities amounting to war without Congress' approval.

Second, the mere fact of a dispute does not show that the meaning was ambiguous.  A dispute might arise because a person was wrong about a provision's meaning, either because they misread it or did not understand its words or its historical background.  A dispute might arise because a person deliberately misread a provision to advance a political agenda.  A dispute might arise because a provision is subject to multiple meanings on its face but, considered with context or with other parts of the Constitution, its meaning becomes clear (or at least one meaning becomes more reasonable than another).

One of Professor Schwartz's examples illustrates the point:

[S]uppose I were to say, “There was widespread belief that the original charter of government of the United States was deeply flawed.” Note here that my authorial intention is irrelevant under the theory of original public meaning: again, the determining factor is the “objective” meaning to a hypothetical reasonable reader.

Some actual reasonable readers could take me to be referring, again, to the Constitution. But others would suppose I meant the Articles of Confederation. (A few others might even wonder whether I was referring to the Declaration of Independence, which has been viewed with some plausibility as the first United States governmental charter.) Context might, of course, make all but one meanings of my phrase “charter of government” implausible, with the result that its meaning is as plain as my use of “the Constitution” in these paragraphs. But such context might itself be absent or disputed, as is the case with many constitutional provisions.

But the existence of a dispute does not show that the dispute cannot be resolved.  Here it can.  A "charter of government" is a document that lays out the structure and authority of government.  The "original" charter of government is the first one.  The Articles of Confederation was a document that laid out the structure and authority of the U.S. government; it preceded the Constitution; and there was no such document before it.  (The Declaration did not lay out the structure of a government; it only announced a political separation).  True, some readers might think otherwise, because they are mistaken about the meaning of "charter," or mistaken about the history or the nature of the Articles or the Declaration.  But that does not make the statement irresolvably ambiguous, even on its face.  Moreover, we are only talking about a single sentence in isolation.  That is unrealistic; statements do not occur in isolation.  The post acknowledges that "[c]ontext might, of course, make all but one meanings of my phrase 'charter of government' implausible."  Indeed, context does often resolve apparent ambiguities, as originalists commonly argue.

Here is another example from the post:

Consider the meaning of the phrase “provide for” in the General Welfare Clause in Article I, section 8, clause 1 (“to provide for the common defense and general welfare”). Elsewhere in the constitution, “provide for” means “to legislate” (“to stipulate previously” in Webster’s 1828 dictionary): for instance, “to provide for the punishment of counterfeiting,” or “to provide for calling forth the militia” (Art. I., sec. 8., cls. 6, 15).  Originalists maintain that “provide for” in the General Welfare Clause means “spend” (indeed, so does conventional doctrine), but commonality of usage in the language generally, or the ranked order of dictionary definitions, do not supply a satisfactory justification for this choice. Rather, those who debate the meaning of “provide for” consider the legal and political effects of their choice. An interpreter preferring a narrow grant of power would prefer “spend” over “legislate” as the meaning of “provide for.”

Again, I think this is not a well chosen example.  It's true that "provide for" is somewhat ambiguous on its face, as Professor Schwartz says.  But its meaning is apparent if one considers (as the post does not) the whole clause: 

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States ...

Taken as a whole, the clause means that Congress can use funds derived from taxes, duties, etc., to provide for the general welfare -- that is, to spend them.  That's how one uses money to "provide for" something.  (And, of course, reading the clause to allow Congress to "legislate" for the general welfare would make most of the rest of Article I, Section 8 superfluous).  So I think the ambiguity can be resolved (even if there is some dispute over it) without recourse to functional considerations.

With all that said, I agree with Professor Schwartz that an originalist must be cautious when the ratification debates reveal a deep division over a provision's meaning, with strong textual and contextual arguments on both sides.  That's not a criticism of originalism; it's just an acknowledgement that sometimes the original meaning may be obscure or unsettled.


Has Trump actually been impeached? Ask Chief Justice Roberts.
David Weisberg

Speaker Pelosi’s current refusal to convey to the Senate the articles of impeachment adopted by the House has raised the question whether Pres. Trump has actually been impeached.  I am in the camp that says that, purely as a technical matter, he has not.  But the implications of that position are not as crystal-clear as one might initially think.

Sen. Lindsey Graham insists that, even if the articles are never conveyed to the Senate, the Senate can and should conduct a trial.  Legal scholars have responded that, if the president has not been impeached, then the Senate cannot try the impeachment (because, in fact and law, there is no impeachment to try).  Again, as a purely technical matter, I think this is correct.  But it does not follow that the Senate cannot conduct a trial; it follows only that any such trial would fall outside the scope of Art. I, Sec. 3.

Everyone would agree, I think, that the House cannot be compelled to convey the articles of impeachment to the Senate, because it has no duty to do so.  And I have argued that, even if the articles were officially conveyed, the Senate cannot be compelled to try those articles, because it has no duty to do so.  Both conclusions follow from the general proposition that each congressional body is a self-governing part of a co-equal branch of government, and they can expend their energy and resources in any way they choose, provided only that they do not violate any explicit or implicit duty under the Constitution or federal law.  Thus, if a majority of the Senate agree, the senators could spend their time playing bingo, with the presiding officer spinning a wheel and calling out numbers.  The only sanction they would face would be in voting booths the next election day.

Because the Senate is free to do anything that does not violate an explicit or implicit duty, the Senate can hold a trial of articles of impeachment that have not been officially transmitted by the House.  From the perspective of those who believe Pres. Trump has not actually been impeached, it might be thought of as an ‘unofficial’ impeachment trial of ‘unofficial’ articles of impeachment.  I don’t think anyone could prevent such a trial from proceeding—the person with the strongest potential objection would be Trump himself, but he’s insisted all along that he wants a Senate trial and so he won’t be objecting.

The question then arises: if the Senate were to go ahead with a trial without officially receiving the articles of impeachment, what would Chief Justice Roberts do?  The Senate would, of course, never characterize its proceeding as in any way ‘unofficial’; it would simply announce that, under Art. I, Sec. 3, it will try the articles adopted by the House.  The C.J. would then have to decide whether to “preside” over the Senate trial.  He might argue that, because there had been no official transmission of the articles, the Senate could not "try" the impeachment under Art. I, Sec. 3, and so he would have no duty under that provision to "preside".  Although perfectly defensible, I think it would be very difficult for the C.J. to take that position.  As a practical matter, the pressures on the C.J. to preside would be great.  And, even if the articles were never officially transmitted, a Senate trial with the C.J. presiding would certainly convince the general public that Trump had indeed been impeached.  The history books would undoubtedly agree.

Julian Davis Mortenson & Nicholas Bagley: Delegation at the Founding (with a Response from Ilan Wurman)
Michael Ramsey

Julian Davis Mortenson (University of Michigan Law School) and Nicholas Bagley (University of Michigan Law School) have posted Delegation at the Founding (108 pages) on SSRN.  Here is the abstract:

This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, the founding generation saw nothing untoward about delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking. As a matter of practice, the early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

Ilan Wurman (Arizona State) has this reply at the Yale Journal on Regulation's Notice and Comment Blog:  No Nondelegation at the Founding? Not so fast.  Here is the introduction: 

Julian Mortenson and Nicholas Bagley have posted a provocative and thoughtful new paper making the claim that there was no nondelegation doctrine of any kind at the founding. These two authors are careful as usual, and in several places they raise concerns and arguments that may require modifications to existing originalist claims about nondelegation. But their evidence does not quite add up to their ultimate claim: that the founding generation did not adhere to any nondelegation principle at all. ...

At the outset, it’s important to establish correctly the existing originalist claims. The standard originalist position is that there are certain kinds of things that Congress must do and the executive (or judicial) branch may never do, namely the formulation of rules regulating private conduct, i.e. telling private people (as opposed to government officials) what they can and can’t do or altering their rights or obligations. Yet Mortenson and Bagley often describe the originalist position as being that any “rulemaking” is an exercise of legislative power that cannot be delegated. I know of no originalist who actually holds such a view, and I encourage Mortenson and Bagley to remove the several characterizations to the contrary. (For example, p. 21: “First, the critics have argued that rulemaking is an exercise of legislative power that may not be delegated by the legislature. Second, they insist that rulemaking can’t qualify as an exercise of executive power, which is limited to the particularized application of existing rules.”)

The paper’s central problems, however, relate to its interpretation of the evidence of “what the Founders said” and “what the Founders did.” This post challenges the paper’s interpretation of “what the Founders said” on two counts: their understanding of nonexclusive powers, and the distinction between delegation and alienation. It then argues that the paper’s evidence of “what the Founders did” does not prove what Mortenson and Bagley think it does. Their evidence from the First Congress does, I think, establish that the modern originalist “private conducts/private rights” nondelegation test might have to be modified—and here their paper contributes the most to the scholarship and originalists must take its claims seriously. But the evidence does not prove there was no nondelegation doctrine at all. ...

And in conclusion:

In short, I lose no sleep over any of the statutes that Mortenson and Bagley unearth. But what of the following hypothetical statutes? “Any common law court shall decide who shall be a citizen, for whatever reason the court sees fit to declare someone a citizen.” Or, “The patent office shall decide whether the United States government should give patents, the term of years, and the grounds on which to grant patents.” Or, “The President may issue regulations carrying into effect any of the powers vested in Congress in Article I, Section 8.” Mortenson and Bagley’s paper does not prove that these kinds of statutes would have been permissible. It does not demonstrate that there was no nondelegation principle at the founding. It proves, at most, that originalists might need to think more about the limitations of their current “private conduct” theory of nondelegation.  

(Via Josh Blackman at Volokh Conspiracy.)


The Controversy about the ERA Amendment Process
Mike Rappaport

It seems likely that another constitutional controversy will soon emerge. In 2020, the Virginia Legislature seems poised to ratify the Equal Rights Amendment, which Congress first proposed nearly a half century ago. Under one way of counting, Virginia’s approval would be the 38th state ratification for the ERA, giving it the requisite three quarters of the states needed for ratification. Thus, it might seem like the ERA is about to become law. In my view, however, even if Virginia votes to ratify, it will not bring the ERA into effect.

The story of the ERA is a long and complicated one, but on one level it is simple. Once the ERA was initially unable to secure ratification, advocates of the Amendment have engaged in one questionable act after another in an effort to enact it. I say this despite my support of at least some versions of an equal rights amendment—specifically, versions that have a relatively determinate meaning.

In 1972, Congress proposed the ERA by the required two thirds of each house of Congress. The resolution proposing the amendment provided:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:


SEC 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

SEC. 3. This amendment shall take effect two years after the date of ratification.

(second italics added).

What is peculiar about this resolution is that the seven-year limitation was contained in the resolution proposing the amendment, but not in the text of the amendment itself. While many constitutional amendments, such as the 20th, 21st, and 22nd have also had seven-year limitations, those limitations were placed in the text of the amendments.

Unfortunately for the ERA, it did not receive the required 38 state ratification by the end of he seven year limitation in 1979. As the deadline was about to run, Congress passed by a simple majority of each house (and then signed by the President), a provision attempting to extend the deadline until 1982. But no additional states ratified the amendment prior to the 1982 deadline.

Although the amendment seemed to be dead, additional states began to ratify the amendment in 2017. Illinois and Nevada have now passed ratifications. If Virginia (or another state) passes a ratification next year, many ERA proponents are likely to argue that the Amendment has been ratified.

But the argument for this conclusion is very weak. First, even if these three ratifications had occurred during the 1979-1982 period when Congress had passed an extension by statute, they would not be valid. One cannot use a statute to modify a proposed constitutional amendment. A proposed constitutional amendment requires a two-thirds vote of both houses. A statute requires only a majority vote of both houses.

Moreover, even if Congress had passed the extension with two-thirds of each house, that would be insufficient. The ratifications that had occurred prior to the extension were to a proposed amendment that had a 7-year limitation. One cannot count those ratifications for a proposed amendment with in effect a 10-year limitation, since we don’t know that the states that had ratified the amendment with the 7-year limitation would have ratified an amendment with a 10-year limitation. This (hypothetical) amendment with a 10-year limitation that was passed by two thirds of each house would only be ratified if 38 states approved it.

This discussion assumes that the ratifications beginning in 2017 were passed during a period for which Congress extended the ratification window. But Congress has not extended the ratification window either by statute or by proposed amendment since 1982. So what possible argument is there for counting the three new ratifications and adding them to the prior ones?

The best arguments appear to be that the time limitation in the original ERA was not binding and therefore can be ignored. One possible reason is that the ERA time limitation was not in the amendment itself, but only in the resolution proposing it. But this argument is open to an objection. The Constitution merely states that Congress should propose an amendment and it is not clear why limitations in the resolution proposing the amendment should not be considered as part of Congress’s proposal. Still, this argument against enforcing the time limitation cannot be rejected out of hand.

Another possible reason why the time limitation might not be binding, even if it were in the constitutional text, is the argument that the Constitution does not allow Congress to set a time limit. Under this view, Congress’s only role in the amendment process is to propose an amendment and then to determine whether it is ratified by state conventions or state legislatures. I have some sympathy for this argument. But again there are problems. First, many constitutional amendments have included time limitations in the text and therefore there is a strong precedent for concluding they are valid. Second, even if Congress has no authority to do anything other than propose the amendment and specify whether state conventions or state legislatures should make the ratification decision, Congress placed the time limitation in its proposal, and it certainly has the power to make proposals. So one must decide whether the time limitation was a legitimate part of the proposal.

But let’s imagine that we accept the argument for the continuing life of the proposed ERA on these issues and conclude that Congress could not—in the text or the resolution—place time limits on the amendment. What would be the consequence of this conclusion? It would indicate that the time limitation was unconstitutional. If so, one might conclude that the proposed ERA itself is unconstitutional and therefore of no force or validity. That would hardly help the prospects of the ERA.

The response to this conclusion would presumably be that it is only the time limitation that is unconstitutional. Therefore, that portion of the proposal is of no effect, but the remainder of it is. This amounts to a severability argument—the unconstitutional portion of the proposal can be severed from the remainder, leaving it of full force and effect.

The problem here is that it is extremely questionable that the unconstitutional portion is severable. Applying severability to constitutional provisions (as opposed to statutes) is novel and questionable. In addition, there is no severability clause. Finally, there is a strong argument that the provision is not severable, because the Congress might not have voted for it without the unconstitutional portion. Members of Congress might have sought a genuine consensus of the country and not one that was only secured over a half century.

There is also another severability problem at the state level. When states ratified the Amendment prior to 1979, they too might have sought a genuine consensus within a seven-year period. Thus, they might have rejected an amendment with an unlimited ratification period.

Finally, there is one last problem with concluding that only one more state is needed to ratify the ERA. Since five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) have rescinded their ratifications, if those rescissions are operative, then an additional five states will be needed for ratification. It is not clear that these recissions are valid, but my tentative view is that they are valid on the ground that recissions are valid so long as they are passed before the requisite three quarters of the states are reached.

Overall, there are numerous problems with the claim that only one more state is needed for the ERA. In my view, there is much to be said for an equal rights amendment that has a determinate meaning and even more to be said for effecting constitutional change by constitutional amendment rather than judicial updating. But declaring the original ERA ratified when one more state approves it might create a constitutional crisis and would certainly damage the credibility of the Constitution.

The Unimpeached President (Again)
Michael Ramsey

News reports say that Senate Judiciary Committee Chair Lindsey Graham wants the Senate to go ahead with an impeachment trial if the House does not deliver the Articles of Impeachment.

Sen. Lindsey Graham, R-S.C., insisted Sunday that if House Speaker Nancy Pelosi does not deliver articles of impeachment against President Trump to the Senate by the end of the week, the Senate should "take matters in our own hands."

Graham accused Pelosi of playing political games and trying to exert control over the Senate trial by keeping it from starting. Senate Majority Leader Mitch McConnell, R-Ky., recognized Friday on the Senate floor the chamber's rules prevented him from doing anything until Pelosi does her part, but Graham proposed a solution that could remove what McConnell has called an "impasse" in the process.

"What I would do, if she continues to refuse to send the articles as required by the Constitution, I would work with Senator McConnell to change the rules of the Senate so we could start the trial without her, if necessary," Graham proposed on "Sunday Morning Futures."

Can the Senate do that?  If the President has been impeached, absolutely the Senate can do that.  The Senate has "sole power to try all Impeachments." (Art. I, Sec. 3).  That's all the Constitution says on the matter.    So the Senate can do what it wants.  It doesn't have to hold a trial at all.  If it does, it doesn't have to give the House any role.  Any role the House has had in prior impeachment trials (especially, appointing "managers" to argue the impeachment) is a courtesy role, not a constitutional one.  The Constitution does require anything from the House once impeachment is completed.  The Senate rules provide such a role, but as Senator Graham says, the Senate can change the rules.  The Constitution gives everything up to the point of impeachment to the House (Art. I, Sec. 2) and everything after that to the Senate (Art. 1, Sec. 3).  So Senator Graham is entirely correct.

If the President has been impeached.

But as argued by Andrew Hyman on this blog, and by Noah Feldman at Bloomberg (and elaborated by Keith Whittington at Volokh Conspiracy), historical understanding and practice strongly indicate that a President is not impeached (under the Constitution's original meaning) until the Articles of Impeachment are delivered to the Senate.  Impeachment, in this view, is not the act of voting on the articles, but rather the act of making an accusation to the entity having trial authority (in this case, the Senate).

And if that's right (and I think it is), then Senator Graham is wrong.  Speaker Pelosi can hold on to the undelivered articles of impeachment as long as she wants, and there's nothing constitutionally that the Senate can do about it.  The vote in the House was to authorize the House to proceed with an impeachment, but it was not in itself an impeachment.  Speaker Pelosi may choose not to proceed with the impeachment (that is, with the delivery of the accusation to the Senate) even though she is authorized to do so.  Until she completes the impeachment, there is nothing for the Senate to act upon.  The Senate can only begin the trial of an impeachment once the impeachment happens.

Thus it makes a substantial difference how we understand the original meaning of "Impeachment" in the Constitution.  (I've made this point before but especially in light of Senator Graham's comments it seems worthwhile to restate it).


Robert Natelson: The Constitution's Fiduciary Meaning of 'High . . . Misdemeanors'
Michael Ramsey

Robert G. Natelson (Independence & Montana Policy Institutes) has posted Impeachment: The Constitution's Fiduciary Meaning of 'High . . . Misdemeanors' (19 Federalist Soc'y Rev. 68 (2018)) (5 pages) on SSRN.  Here is the abstract:

This essay explores the meaning of the phrase “high ... Misdemeanors” in the Constitution's Impeachment Clause. After a review of 18th century sources, it concludes that the phrase denotes breaches of fiduciary duties.

I posted a link to this article back around the time it was first published, but it's now available on SSRN and seems of particular relevance at the moment.



Nathan Chapman: Constructing the Original Scope of Constitutional Rights
Michael Ramsey

Nathan Chapman (University of Georgia School of Law) has posted Constructing the Original Scope of Constitutional Rights (88 Fordham Law Review Online, 2019) (14 pages) 0n SSRN.  Here is the abstract:

In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration of the legal history of the judicial rights of foreign states.

Here is my earlier post on Professor Wuerth's outstanding paper.


Originalist Scholars Brief in Seila Law LLC v. CFPB
Michael Ramsey

Ilan Wurman (Arizona State) has filed this amicus brief on behalf of Separation of Powers scholars in support of the petitioner in Seila Law LLC v. Consumer Financial Protection Bureau, challenging the single director/for cause removal structure of the CFPB.  I'm honored to join the brief along with Steven Calabresi, Michael McConnell, Saikrishna Prakash, Jeremy Rabkin, Michael Rappaport and Professor Wurman.  As the list of signatories indicates, it's basically an originalist brief.  Here is the Summary of the Argument:

1.  The Consumer Financial Protection Bureau (CFPB) is a regulatory agency headed by a single director insulated from presidential control and removal, yet wielding executive power. This agency structure is unconstitutional because Article II of the Constitution vests “[t]he executive Power” in the President of the United States and charges the President with the duty to “take Care that the Laws be faithfully executed,” a duty that cannot be discharged without authority to supervise, control, and remove subordinate executive officers. U.S. Const. art. II, §§ 1, 3. To be sure, the Constitution assigns some of the historical executive power away from the President: Article II, Section 2, for example, gives the Senate a share in the appointment power. Id. § 2. But except as specifically qualified, the executive power is vested in the President. Therefore, if the power to remove principal executive officers is part of “[t]he executive Power” or essential to carrying out the duty to “take Care that the Laws be faithfully executed,” it is vested in the President.

As this Court recognized in Myers v. United States, 272 U.S. 52 (1926), the power to remove is a necessary element of the executive power. Two important historical sources confirm that, whatever else might be contained within “[t]he executive Power,” that power includes the ability to remove executive officers who assist the chief executive magistrate in carrying the laws into execution. First, in eighteenth-century English law and practice the executive magistrate had the power to remove principal executive officers as part of the executive power to carry law into execution. See, e.g., 1 William Blackstone, Commentaries on the Laws of England *243, 261–62, 327 (1st ed. 1765–69); Michael Duffy, The Younger Pitt 18–27 (2013); Murray Scott Downs, George III and the Royal Coup of 1783, 27 The Historian 56, 72–73 (1964).

Second, in 1789 the First Congress concluded that, although not expressly mentioned in the Constitution, this removal power was constitutionally vested in the President on the basis of the two overlapping and complementary textual grounds discussed above: because the power of removal is part of “[t]he executive Power” vested in the President, and because such a removal power is necessary for the President to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, §§ 1, 3.

As a result, the structure of the CFPB is unconstitutional. The CFPB, among other duties, is charged with law enforcement. 12 U.S.C. §§ 5492(a)(10), 5581(b)(5)(B)(ii). It is headed by a single director who may be removed by the President only “for inefficiency, neglect of duty, or malfeasance in office.” Id. §§ 5491 (b)(1), (c)(3). Thus the President does not fully control the CFPB’s law execution.

2. In recent decades, revisionist scholars have argued that the President’s authority over the Treasury Department, financial regulators, and “Article I” agencies is distinct from the President’s authority over “Article II” agencies tasked with assisting the President in exercising inherent constitutional power. The Framers and Founding generation, however, recognized no such distinction. To the extent financial agencies enforce the law, they exercise executive power.

3. Not only is the CFPB’s structure unconstitutional, it is unprecedented. In 1935, the Court in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), in addressing the structure of the Federal Trade Commission (FTC), created space for Congress to establish multi-member commissions charged with “quasi-legislative” and “quasi-judicial” responsibilities, led by commissioners with staggered terms. The Court’s efforts in Humphrey’s to distinguish Myers and avoid the force of Article II, Sections 1 and 3, were and remain unpersuasive. The Constitution only recognizes legislative power that can be exercised by Congress, judicial power that can be exercised by the judiciary, and executive power—even if the exercise of this executive power sometimes takes regulatory or adjudicatory forms—that is vested in the President.

Humphrey’s is thus inconsistent with the Constitution’s text and original meaning and should be revisited—or, at minimum, should not be extended. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 484 (2010) (declining to extend Humphrey’s to multiple levels of removal protection). Here, the CFPB’s structure concentrates unsupervised executive power in a single person outside the executive itself. It represents an unprecedented extension of the exception created by Humphrey’s. The Court should reject that extension and reaffirm the original meaning of Article II’s Vesting Clause.


Angus McClellan: Early Women's Rights Activists and the Meaning of the 14th Amendment
Michael Ramsey

Angus McClellan (Claremont Graduate University) has posted Early Women's Rights Activists and the Meaning of the 14th Amendment (19 pages) on SSRN.  Here is the abstract:

The purpose of this paper is to consider the meaning of the 14th Amendment as it applies to women in the United States through the perspective of the women’s rights litigants, advocates, and their allies in the 1860s and 1870s. Originalism as a method for constitutional interpretation can take many forms, including giving weight to the original intent of the drafters of the Constitution or its amendments, or deferring to the understandings of the ratifiers in state conventions and legislatures, or perhaps giving weight to the “public meaning” or “public understanding” of the documents by considering newspaper editorials, pamphlets, and dictionary definitions in use at the times of their ratifications. This paper is an originalist approach to understanding the 14th Amendment by turning to a group of people who were particularly active in the earliest debates on its meaning. Modern interpretations as well as those from contemporaneous statesmen and jurists will be considered as well to provide some orientation and comparison.

To map this argument broadly, modern scholars argue that the 14th Amendment protects some or all categories of individuals within the jurisdiction of the United States, and they variously claim that Section 1 protects substantive or procedural civil, political, natural, fundamental, or common law rights, or even social equality. Adding to this the variety of definitions of rights or “equality,” there is a wide spectrum of scholarly thought on what the 14th Amendment protects, and to whom it applies. Part II be divided between political efforts and legal efforts. It will focus first on the political efforts and the accompanying interpretations of the 14th Amendment from some of the most prominent activists during the 1860s and 1870s. It will then explore the legal arguments of women’s rights activists and their attorneys engaged in litigation from three notable cases in the earliest days of the 14th Amendment.


Andrew Ferguson on the Historians' Statement on Impeachment
Michael Ramsey

In The Atlantic, Andrew Ferguson: Historians Should Stay Out of Politics (commenting on the Historians' Statement on the Impeachment of President Trump).  A key excerpt: 

The thesis of the petition goes like this: “President Trump’s numerous and flagrant abuses of power are precisely what the Framers had in mind as grounds for impeaching and removing a president.”

When I first read the statement, I took that superfluous adverb, precisely, as a bad sign. No one knows precisely what the Framers had in mind when it comes to impeachable offenses, and if we did, we could be sure it didn’t involve transcontinental telephone calls, gaga theories about computer servers, Javelin anti-tank missiles, or the sovereign nation of Ukraine, none of which existed when the Framers were framing away. Trump’s abuses and the kinds of violations the Framers thought were impeachable may bear a general similarity, or fall into the same general category, but that’s a different matter. Precision, we see early on, is precisely what the historians are not after.

From an originalist perspective, I'm amused to see 2,051 historians (at last count) affirming that we can know "precisely" what the framers were thinking about a modern constitutional dispute.  That's especially true as we have been lectured at length by historians (different  historians, one hopes) that originalism is a fallacious methodology because we can never really know what the framers were thinking; because history is complex and nuanced, not susceptible to easy answers; because the framers believed a range of things in tension with one another; etc.  Do the statement's signers understand that they are embracing a simplistic version of originalism -- a version that would, I think, be rejected by most legal academic originalists?  In any event, I'll try to remember this "statement" next time a historian claims that originalism is simplistic and ahistorical.


Nathan Chapman: New Light on the Establishment Clause
Michael Ramsey

Nathan S. Chapman (University of Georgia School of Law) has posted Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause (88 pages) on SSRN.  Here is the abstract:

Americans have long disputed whether the government may support religious instruction as part of an elementary education. Since Everson v. Board of Education (1947), the Supreme Court has gradually articulated a doctrine that permits states to provide funds, indirectly through vouchers and in some cases directly through grants, to religious schools for the nonreligious goods they provide. Unlike most other areas of Establishment Clause jurisprudence, however, the Court has not built this doctrine on a historical foundation. In fact, in Trinity Lutheran v. Comer (2017), the dissenters from this doctrine were the ones to rely on the founding-era record.

Intriguingly, the Court and scholars have largely ignored an early governmental practice that directly bears on the historical understanding of the Establishment Clause: from the Revolution through Reconstruction, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Funds Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all personally participated in the partnerships. Virtually no one objected on constitutional grounds. This is the first Article to place these government-missionary partnerships in their cultural, political, and constitutional context and to thoroughly evaluate their implications for the history of disestablishment and contemporary doctrine.

The Article acknowledges that multiple overlapping factors may account for why no one raised a constitutional objection to the partnerships, including factors unique to “Indian affairs.” But it argues that the dominant reason was that elite white Americans shared a paradigm of social progress that equated republicanism, Christianity, education, and civilization. The practice dramatically qualifies the conventional wisdom that the quintessential example of an “establishment of religion” was the use of public funds to support religious groups. In fact, that opposition appears to have been aimed narrowly at taxes earmarked for churches and clergy salaries.

Although the implications of the practice, which was undoubtedly culturally chauvinistic, must be translated for a constitutional regime that prizes neutrality and voluntariness, this Article argues that the partnerships support the trajectory of the Court’s funding jurisprudence, with implications for Espinoza v. Montana Department of Revenue, currently pending before the U.S. Supreme Court.


Jeffrey Toobin's Abortion Prediction
Andrew Hyman

CNN’s legal analyst, Jeffrey Toobin, said this 18 months ago: “Anthony Kennedy is retiring.  Abortion will be illegal in twenty states in 18 months.”  This prediction 18 months ago by Toobin has not (yet) come true.  But, from an originalist point of view, it would be great if Toobin’s forecast could ultimately come true.  I emphasize “could” instead of “would” because the original meaning of the Constitution does not require states to do what Toobin fears they would do, and I am not blogging here to support the outcome that Toobin fears.  

We haven’t blogged much about abortion and Roe v. Wade here at the Originalism Blog, although it may well be the central issue in American constitutional law.  In one of our rare mentions of this highly contentious issue, Professor Mike Rappaport said on September 5, 2019 that the U.S. Supreme Court in Planned Parenthood v. Casey “justified its decision to not overturn Roe v. Wade based on stare decisis, but then cut back on the protections the law afforded abortion rights.”  Even though we have not said much more than that about Roe v. Wade this year, we have often discussed the controversial legal doctrines that have been used (or might be used) to justify that decision.  

The primary legal basis of Roe v. Wade is of course the doctrine of substantive due process (SDP), which liberal legal pundits like Toobin would probably despise if it were once again used to attain conservative rather than liberal goals, as happened prior to the New Deal.  SDP was given new life during the 1960s in reliance upon the atrocious precedent of Dred Scott v. Sandford, even though that precedent very probably did not go so far as to employ SDP.   My view has always been that SDP is very probably unconstitutional no matter whether it is used by conservative judges or by liberal judges.  

The SDP doctrine reminds me of a funny scene from one of the great comedic movies of all time (Airplane) in which a long line of passengers uses a variety of different techniques to help another panicked passenger get a grip; someone is always trying to apply one legal theory or another to the Constitution so as to yield desired abortion policy.  If it’s not substantive due process, then it’s the Privileges or Immunities Clause, or the Equal Protection Clause, or the Free Exercise Clause, or the Ninth Amendment, or a fiduciary theory, or the Declaration of Independence, or the Fourth Amendment, or natural law, et cetera.  I have not opposed such theories on the grounds that they would bolster one political result or another, but rather on the grounds that they are unsupported by the original meaning of the Constitution.  Natural law and all of those other things are wonderful, and should always prevail, but unconstrained power to divine natural law was never meant to be a job of the federal judiciary.  As Mark Pulliam correctly stated earlier this year, “the same principles of ‘natural law’ either compel or prohibit abortion rights and gay marriage (to cite just two examples). So much for the Declaration serving as a useful guide to constitutional interpretation!”  

If and when the courts allow non-judges to do more than chat about the million-plus abortions that occur annually in the United States, then there will be many possible policy alternatives to employ, but there is presently no incentive for the “pro-choice” faction to discuss (much less accept) any new compromises. The present situation would quickly change with the overturning of Roe and Casey.  For example, citizens might choose to put the abortion issue entirely in the hands of female voters and legislators, because the issue affects them differently than it affects males (this might or might not require a constitutional amendment).  Or citizens might choose to move the line between lawful and unlawful abortion so that it coincides with the biologically meaningful line between an embryo and fetus, instead of the ever-shifting standard of viability.  Or citizens might apply the prior restraint doctrine, so that abortion is entirely safe for women, who would have to subsequently pay a fine or accept some other disincentive.  Or citizens in a few states might decide that a fetus is simply a worthless blob of cells that warrants no legal protection whatsoever throughout the nine months of pregnancy.  All of these options (except the last one) have no chance of materializing as long as the courts continue to give one faction an advantage, and impose a one-size-fits-all policy on the entire nation, while overlooking that any reliance interests could be easily addressed by delaying the effective date of a court decision modifying abortion precedents (or, equivalently, striking down state legislation on the grounds that it does not delay its effective date).

Seth Barrett Tillman on Robert Goodloe Harper on Impeachment
Michael Ramsey

At The New Reform Club, Seth Barrett Tillman: Representative Robert Goodloe Harper: A House Manager at the Blount Impeachment.  Although a short post, it's hard to summarize.  The issue at the Blount impeachment trial was whether Blount, a Senator, could be impeached (which turned on whether a Senator is a "civil Officer[ ] of the United States" under Article II, Section 4.  Harper argued that Blount was such an officer but Professor Tillman argues otherwise.  And that leads to the conclusion that "officers of the United States" are only appointed -- and so in turn that:

In every day language, the presidency is an officer of the United States, but that is not how that language is used in the Appointments Clause and elsewhere in the Constitution of 1787.


The Wall Street Journal Celebrates Originalist Judges
Michael Ramsey

From the Wall Street Journal editorial board: Revitalizing the Federal Courts.  Here is the introduction: 

President Trump is far from a shoo-in for re-election, but win or lose in 2020 his legacy already includes advancing a new generation of highly professional, constitutional federal judges. Working with the Federalist Society on selecting nominees, and with Mitch McConnell leading a largely unified Republican Senate on confirmations, Mr. Trump is reshaping the judiciary to protect fundamental liberties and the original meaning of the Constitution.

And in conclusion:

A new era of originalism in the courts should be good for the law, and for the public reputation of the judiciary as nonpartisan interpreter of the Constitution. Such an era may even be good for progressives, who will have to win their arguments the old-fashioned way—via political debate and elections.

Two fairly obvious thoughts: it further illustrates the mainstreaming of originalism that the Journal celebrates the new judges specifically as originalist judges.  And whatever one thinks of the campaign to seat specifically originalist judges, the success of that campaign means that originalist arguments will have increasing importance for both lawyers and legal academics -- and so law professors will need to learn how to make (and how to teach people to make) originalist arguments.


Aaron Houck & Claire Teague: Pluralistic Originalism
Michael Ramsey

Aaron Houck (Queens University of Charlotte, Political Science) and Claire Teague (independent) have posted Pluralistic Originalism (34 pages) on SSRN.  Here is the abstract:

Originalism is a method of constitutional interpretation judges use to resolve textual indeterminacy. The dominant strain of originalism argues that proper constitutional meaning comprises the original public meaning of constitutional provisions at the time of their adoption — and that this result is required by a robust theory of democracy. Strong proponents of this view argue that interpretations of constitutional texts that are not faithful to their original meaning are illegitimate. But most of the Constitution’s textual indeterminacies did not emerge over time. Rather, they have existed since the text was drafted. Throughout constitutional history, individuals and groups have publicly argued about the meaning of proposed constitutional provisions — the Constitution itself, the Bill of Rights, and every subsequent successful amendment (along with numerous failed amendments). And additional interpretations could have plausibly been imagined privately by people shut out of public debate for various voluntary or involuntary reasons. The originalist theory of democracy offers no principled rationale or method for privileging one such original public meaning over any other. Thus originalism itself has a problem with indeterminacy. In cases requiring the interpretation of indeterminate constitutional provisions, originalism cannot resolve these textual indeterminacies. This is the problem of original indeterminacy. Recognition of original indeterminacy — what we call “pluralistic originalism” — places contemporary originalists in precisely the same position as the text’s original adopters: a position that acknowledges a range of possible textual interpretations — sometimes a range so wide that it includes inconsistent, even contradictory, interpretations. To resolve cases that turn on such interpretations, judges must look beyond originalism to other interpretative methods and canons of constitutional construction.

Or, judges could acknowledge that faced with irresolvable indeterminacy they have no authority to override the constitutional judgments of the political branches.


Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors
Mike Rappaport

How should the Fourth Amendment’s original meaning be applied to modern technology that was not in existence at the time of the Amendment’s enactment? Many commentators believe this type of question problematic to answer. As Justice Alito quipped some years ago at oral argument, “I think what Justice Scalia wants to know is what James Madison thought about video games.” But in the case of the Fourth Amendment, there is a disciplined way to engage in this inquiry. Here I discuss how the matter should work with respect to two recent cases—Riley v. California (the search of cell phones when a person is arrested) and Kyllo v. U.S. (the use of heat sensors to determine the temperature inside a home—as a means of discovering whether illegal pot is being grown there).

In a prior essay, I noted that the Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Unfortunately, the Supreme Court has followed neither the text nor the original meaning of the Amendment. In Katz v. United States, the Court held that whether a government action constitutes a search depends on whether it interferes with a reasonable expectation of privacy of an individual. But the Amendment does not speak about privacy or define searches by reasonable expectations of privacy.

Instead, the Amendment simply speaks of searches, which had an ordinary meaning at the time of looking “over or through things.” And the covered searches were limited to searches of “persons, houses, papers, and effects.” So whether something is a search is not a matter of reasonableness, but of whether one of those four things is examined.

The text of the Amendment does make reasonableness relevant, but only to something that has already been classified as a search. It is unreasonable searches that are prohibited. And the reason that is referred to here is the reason of the common law. Thus, the Amendment’s prohibition on unreasonable searches simply asks whether such searches were allowable under common law.

In cases where the existing common law did not provide a clear answer, as with new technology, courts must determine the content of the common law right by deciding the case as a common law judge at the time would have—by considering the existing precedents and values at the time.

Let me then apply this approach to Riley and Kyllo.

In Riley, the police arrested Riley and sought to search his cell phone without a warrant under the “search incident to an arrest” exception. Under this exception, the police are allowed to search evidence they uncover when making an arrest without having to get a warrant. While this doctrine would normally cover personal property on the arrested person, the Court held that the doctrine could not be used to search a cell phone. The Court reached this result by invoking modern nonoriginalist precedents and balancing the legitimate government interests with an individual’s privacy interests.

While the Supreme Court applied nonoriginalist precedents, what would an originalist analysis look like? First, it seems clear that the police are attempting to search of an “effect” (since the phone is movable personal property) and thus within the scope of the Fourth Amendment’s protection. The next question is whether the search is a reasonable one. Since the search incident to arrest exception to warrants was part of the common law, originalist analysis suggests that it accords with the Amendment’s original meaning. Searches pursuant to that common law doctrine appear to have been justified on the grounds that the Supreme Court mentioned in Riley—to prevent destruction of evidence and to protect against violence from the person arrested.

The question, then, is how a common law judge at the time would have answered the question whether search of a cell phone fell under the search incident to arrest exception. And while some people will regard this question as unanswerable, I do not. If the reason for the exception (preventing destruction of evidence and protection against violence from the person arrested) is accurate, and if the common law judge understood how cell phones work (which we must assume to answer the question correctly), then I believe there is a strong case that the common law judge would not have extended the search incident to arrest exception to cell phones. Put differently, a common law judge would have recognized that cell phones were quite different than other materials on the suspect’s person and therefore should be treated differently.

The reason is that the values underlying the earlier cases apply differently to cell phones. While preventing destruction of evidence and protecting against violence from the person arrested are important concerns as to traditional property on the person of the arrested individual, they are far less important as to a cell phone. Once the cell phone has been seized (but not searched), the possibility that it could cause harm to the police or that the evidence would be destroyed is quite low.

By contrast, while privacy interests are weakly implicated in the ordinary situation, since there is only a limited amount of information that can be gleaned from non-digital materials on a person, (even from a wallet), privacy interests are strongly implicated by the search of a cell phone, which has an enormous amount of information about a person, including possibly large collections of pictures, videos, text messages, bank information, emails, and personal files.

There is, of course, no certainty that judges at the time would have viewed the matter in this way. It requires us to ask how they would evaluate a type of technology that was completely unknown at the time. But there is little reason to believe that they would have evaluated these basic facts about cell phones any differently than modern judges. If the values identified were the basis of the search incident to arrest exception, as scholars assert, then this does not seem like a problematic judgment.

What is interesting here is that this analysis resembles the Supreme Court’s decision in Riley, even though that decision followed nonoriginalist precedent. This is not an isolated example. One of the things that I have learned over my years as an originalist scholar is that the original meaning of a provision is often closer to the nonoriginalist position than I would have imagined. There is no necessary connection here; it just happens more often than one might expect.

Now, let me turn to the other Supreme Court case, Kyllo v. U.S., where the police used a heat sensor, along with other information, to obtain a warrant. The question is whether aiming the infrared heat sensor at the outside walls of a home amounted to a search of the home. Justice Scalia wrote the opinion, but applied the nonoriginalist Katz reasonable expectations of privacy test. He concluded that individuals had a reasonable expectation of privacy against use of the heat sensors to obtain information from a house.

While Scalia applied a nonoriginalist test, what would the originalist analysis look like? The first question is whether this is a search of a house. If it is search, it is certainly of a house. But is it a search? Here the analysis is a little complicated but in the end seems to suggest there is a search. One possibility is that examining the outside walls of a house is a search because that is “examining” part of the house and that accords with the ordinary meaning of the term at the time. It might be argued, however, that this is not a search because the outside of the house is in public and simply looking at something in public is not a search. But even if one accepts this latter argument, one might still conclude that it is a search because the police are using special equipment to examine the outside of the house. Thus, what they are examining is not open to all people in the public.

The next question, then, is whether the search is unreasonable. One must ask how a common law judge at the time would have decided the case. Since thermal imaging was not employed at the time of the Constitution, one must engage in an independent analysis. Once again, the nonoriginalist arguments used by the majority and dissent seem quite helpful.

That the thermal imaging reveals information that is occurring inside the home seems to strongly indicate that it is an unreasonable search absent a warrant. If a common law judge would have placed strong emphasis on the importance of privacy within the home, which seems quite likely, that is a strong argument for the unreasonableness of the search. There is a moderately strong argument, however, on the other side. The thermal imaging only revealed very rudimentary information about what was occurring inside the house—information about the heat being emitted. While some judges might have used this fact to conclude that the thermal imaging is not unreasonable, my judgement is that it is more likely that a common law judge of the time would view the thermal imaging as being an unreasonable search, since it was an infringement on an area that was traditionally protected.

In the end, this analysis shows that a proper understanding of the Fourth Amendment can accommodate modern technology, even though that technology was not known at the time. The analysis does require a limited common law type reasoning, but that is what the original meaning requires.


John McGinnis on Matthew Franck on Thayer and Originalism
Michael Ramsey

At Law and Liberty, John O. McGnnis:  James Bradley Thayer and Judicial Restraint.  From the introduction: 

One of the most important ongoing debates in constitutional law is the degree of deference that judges should accord legislation in assessing its constitutionality. And the most famous article arguing for deference remains “The Origin and Scope of American Constitutional Law,” written by James Bradley Thayer. Indeed, as suggested by the fact that it is still being discussed 126 years after it was written, it has a strong claim to being the most famous article ever about American constitutional law. Given how important originalism has become in constitutional interpretation, it is not surprising that today that scholars, including my Northwestern colleague Steven Calabresi, are evaluating whether Thayer’s renowned article reflects an originalist view.

Matthew Franck, one of the most sophisticated advocates of judicial restraint, has made the case for this article’s originalism in a fascinating American Political Thought essay, “James Bradley Thayer and the Presumption of Constitutionality: A Strange Posthumous Career.” He argues that Thayer’s claims have been unfairly distorted by subsequent scholars, particularly those who favor judicial engagement—the opposite of deference. While there is much that is extremely valuable in the article, I do not believe it succeeds in defending Thayer’s article as originalist.

There are at least four reasons not to count Thayer in the originalist camp: First, some of Thayer’s key arguments are consequentialist, not interpretive. Second, Thayer does not investigate fully what the founders thought about judicial review, and that allows him to exaggerate deference into a “beyond a reasonable doubt standard” which exceeds that which can be fairly gleaned from the record. Third, without providing any support in the Founding, Thayer argues that judges should be more deferential to federal than state legislation. Finally, Thayer assumes that much of the Constitution is unclear. As a result, there is a lot of room for deference to operate. But here he follows a jurisprudential understanding that developed after the Founding.