02/06/2025

Thoughts on Birthright Citizenship from Kenneth Barr
Michael Ramsey

[Ed.: the following comments are from reader Kenneth Barr, regarding Richard Epstein's essay noted here and Andrew Hyman's draft paper available here.  They're generally in line with my thinking on the matter, though I don't necessarily agree with them on specifics (but I might). The comments have been lightly edited.]

(1) Professor Epstein’s claim that the gist of Justice Gray’s opinion in Wong Kim Ark is that the son of Chinese immigrants “could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country” is curious as Justice Gray says nothing remotely along these lines.  The gist of the opinion is that we adopted the English common law both under our original Constitution and in the 14th Amendment using the language of territorial jurisdiction that makes clear everyone who is included and excluded from such rule.  Of course, Wong Kim Ark didn’t discuss illegal aliens.  Assault rifles didn’t exist when the Constitution was written, however, we strive to understand the original public meaning of the language and apply it to modern circumstances like many other provisions of the Constitution.  Justice Gray clearly defines what the language means and the bottom line is that there is no way to exclude children of undocumented or temporarily resident aliens without completely ignoring the text or making up one’s own definition of “jurisdiction”, which unfortunately we see being done by opponents of birthright citizenship.

(2) Justice Gray looked to the international law of territorial jurisdiction, the only law of jurisdiction with respect to a nation’s jurisdiction over persons in its territory that existed at such time, and looked to Justice Marshall’s opinion in The Exchange, which was the seminal case on the international law of jurisdiction and was cited or followed by the treatises on public law of the time.  For example, “[e]very independent state has full and complete jurisdiction over all persons and things physically situated within its territorial limits, whether those persons and things are permanently or transitorily present.” John Norton Pomeroy, Lectures on International Law in Time of Peace, pg. 202 (1886).  To name a few more of the many treatises, Henry Wheaton, Elements of International Law, (1842); Joseph Story, Conflict of Laws, pg. 23 (1841); Henry Wagner Halleck, International Law: Or, Rules Regulating the Intercourse of States in Peace, pg. 162 (1861); Sir Edward Shepherd Creasy, First Platform of International Law,  pg. 175 (1876); George Breckinridge Davis, Elements of International Law, pg. 54-55 (1884); Freedman Snow, International Law, pg. 31 (1898).  There was no concept of domicile relevant to territorial jurisdiction under international law.  Treatment of temporary residents was a matter of comity or curtesy, not a lack of jurisdiction.  In the words of publicist Traver Twiss “to be resident within the territory of a Nation is to be subject to its Jurisdiction; but Nations, from considerations of mutual Comity, do not apply the same Laws in all matters to persons who are only temporarily resident, as to persons who are permanently resident within its territory”.

(3) Andrew Hyman only cites Story anonymously stating domicile can “found or destroy jurisdiction,” where a few sentences later Story made clear he is talking about being subject to the jurisdiction of the courts (a matter of municipal legislation and not relevant to the jurisdiction of a nation over persons born on is soil), and in the next paragraph tells us children of temporarily resident aliens are generally subjects of the country they are born in. 

(4) Professor Epstein stating that “there is no record of any parent claiming that their children born in the United States were citizen” is curious as is he seems to be claiming he looked at all antebellum records.   He clearly missed Lynch v. Clarke, the seminal antebellum case on citizenship that was cited by everyone, that was about a child of a temporary resident alien claiming citizenship.  It is simply a historical fact that prior to 1866, and for two decades afterwards, the government granted passports to anyone who could prove native birth, as the application did not even ask who the parents were, much less whether their residence was temporary or what was their domicile was. The Justice Department and State Department had said we followed birthright citizenship.  See Galliard Hunt, United States Dept. of State, The American Passport, pg. 49 (1898).  Such was also the case with protection certificates given to sailors to prove their U.S. citizenship.  Since individuals were declared citizens by our government based on native birth alone and weren't even asked whether their parents' residence was temporary, why would there be records of children of temporary residents claiming citizenship? I would turn this around and challenge Professor Epstein to find a single instance where such a person was denied citizenship, or any actual legal authority that said such persons were excluded.   Such authority does not seem to exist as all authority of note, and there is a mountain of it, appears to say we followed the common law where temporary residency was irrelevant.  I don’t think Andrew Hyman’s citations are helpful.  He cites a West Virginia state case where he is actually quoting the argument of counsel for the appellant and not the opinion of the court, which starts a few pages later and hence is not authority at all.  Justice McLean’s dissent in Dred Scott is not relevant authority as the issue in the case was whether the federal court had jurisdiction under the Judiciary Act for a case between a citizen of one state and a citizen of another state; he opined that “any individual who has a permanent domicil” would be deemed a citizen of the state for purposes of such Act.  McLean is not talking about who is a citizen at birth or stating domicile is a necessary component of citizenship.  Obviously, a natural born citizen who domiciles overseas is still a citizen but may not be able to sue under the Judiciary Act if not a citizen of a state.  One should note that Taney’s majority opinion in Dred Scott rejected the notion that national citizenship is based on state citizenship, as did Lynch v. ClarkeLudlum v, Ludlum and most other authority by such time, including the framers of the Amendment.  Such notion never made sense once we deemed persons in territory acquired by treaties to be citizens by treaty when such persons never stepped into a state.

(5) Professor Epstein is wrong that the Civil Rights Act excluded foreigners.  The Civil Rights Act language does not say “being a subject of a foreign power”.  It says “subject to a foreign power” as in subject to the jurisdiction of a foreign power which is what its author, Senator Trumbull, and others in such Congress said it meant, with Trumbull saying in a later Congress it, and the 14thAmendment, were declaratory of the common law and only excluded children of ambassadors.  Read this way the clauses are just mirror images of each other, as under international law the only people on our soil who are subject to the jurisdiction of a foreign power are the people who are not subject to our jurisdiction.  There was no enumeration of exceptions, as Trumbull thought the “not subject to a foreign power” language excluded Indians but added the “Indians not taxed” when some people weren’t sure.  He refused to add the same language in the Amendment when one Senator insisted it meant actually paying tax rather than subjecting oneself to our tax laws by leaving one’s tribe.  Regardless, it was made clear in the legislative history of the Act that  they were adopting the common law as such was expressly stated, that the Act only excluded children of ambassadors and that children of aliens were citizens, a point repeatedly made without objection -- though one Senator voted against the Act because he was told it included children of Chinese aliens.   No one said merely being deemed a subject under foreign law prevented U.S. citizenship, which would be absurd as members of this Congress were surely aware, as it was discussed at length in the very next Congress, that perhaps half of our citizens were dual citizens as, for example, a child of a citizen born on our soil was a British subject if his grandfather was an immigrant, whether or not he was naturalized.  We should also note that, in 1868, two years after adoption of the Act, Justice Swayne riding circuit held in United States v. Rhodes that the Civil Rights act was declaratory of the English common law excluding only children of ambassadors, and no other court ever interpreted it otherwise.

(6) Elk v. Wilkens dealt solely with tribal Indians born on a reservation and didn’t say a word about children of aliens or even Indians born off the reservation, who were clearly intended to be citizens under the Civil Rights Act.  It held that such tribal Indians were not “completely subject to their political jurisdiction and owing them direct and immediate allegiance,” without defining what these terms meant or why they didn’t apply to tribal Indians.  Indeed, there was no concept of “political jurisdiction” under public law or other law at such time as Justice Gray seems to have made up the term out of thin air, which he only defined in Wong Kim Ark as being subject to charges of treason.  Justice Gray based his argument on such tribal Indians being born in what we always considered an alien nation, which made them the same as aliens born in a foreign country born under the allegiance of an alien nation; hence they needed to be naturalized just like foreign-born aliens.  Thus, if we did treat these Indian nations as akin to alien nations, his holding is perfectly consistent with the common law he lays out in Wong Kim Ark, as person born in a foreign country are not citizens under the common law.  In fact, even with being deemed an alien nation, under the common law members of such tribes would be deemed to owe allegiance to the tribes and not the United States, as under the common law persons born on land occupied by a tribal chief not in homage to the king owed their allegiance to the chief and not the king.  In Wong Kim Ark, Gray makes clear that children of aliens owe immediate allegiance at birth to the United States, defining allegiance at birth by the common law, and states that they are subject to its political jurisdiction as they are not born in what we consider an alien nation; hence they are subject to our absolute jurisdiction.  Gray cites authority that children of aliens owe political obligations that their parents do not, which was consistent with international law, though he doesn’t say such is political jurisdiction.  Elk’s claim that emigrants need to be naturalized is irrelevant as people born on the soil by definition are not emigrants and the Court has repeatedly said that naturalization does not apply to native-born persons other than Indians, who are considered foreign born. 

(7) Justice Miller’s dicta in The Slaughter-House Cases that anyone with a parent who is a foreign citizen or subject, made without any support or explanation on how the Amendment language can be so construed in the English language, is not persuasive authority as Congress had pointed out a few years earlier that a majority of our citizens had parents that were foreign or dual citizens.  This is probably why Miller would later admit he was wrong and stated it only excluded  children of ambassadors and children of temporarily resident aliens who took the child out of the country, which means they must have been citizens until they left, and which also makes no sense textually as it seems he was quite confused on the issue. No court followed either of Justice Miller’s interpretations as he provided no support for them, and all courts that actually addressed children of aliens outside of dicta prior to Wong Kim Ark followed the common law interpretation, as well as the vast majority of post-adopting interpretation as such  authorities ignored Miller’s dicta that had no textual or historical support.

(8) With respect to Minor v. Happersett, Professor Epstein is simply wrong that “the legal question presented was whether women could be citizens of the United States”.  Rather Justice Waite said “[t]he question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”  Justice Waite held that such a women citizen had no right to vote as suffrage was not a privilege and immunity of citizenship, because “[t]he amendment did not add to the privileges and immunities of a citizen” and women had always been citizens and suffrage had never been considered a privilege and immunity of citizenship.   He said suffrage was a matter of state law, not that citizenship was a matter of state law.  The citizenship discussion was merely dicta to support his claim that women were always citizens.  Like Wong Kim Ark, he said “natural born citizen” was defined by the common law but said some people had doubts about children of aliens under the common law that he didn’t need to look into.  Had he looked into it he would have found no one questioned the status of children of aliens  under the common law, as Wong Kim Ark did in its comprehensive review of the common law and who was a citizen under the original Constitution.

(9) The appeals court case in Ludlum v. Ludlum is in no way inconsistent with Lynch v. Clark.  Such court said it agreed with Lynch v. Clark that the question of U.S. citizenship should be defined by reference to the English common law.  It agreed with Lynch v. Clark that children of aliens in England were natural born subjects.  It agreed with Lynch v. Clarke that children with a British father born outside of England were natural born subjects under the common law and indeed made the most elaborate defense of such proposition in the U.S. or England, a proposition that most authorities in England and the United States rejected.

(10) Andrew Hyman points out that Senator Howard said the Amendment was declaratory of the current law which he defined a few days earlier as “a person who was born within the limits of the United States and subject to their laws".  In the debates the language was said to mean whether we had the power to subject people to our laws and accordingly most of the debates was on whether we could or had the power to subject Indians to our laws, with Trumbull arguing -- seemingly successfully as a majority voted with him -- that subjecting Indians to our laws would be prohibited by our treaties, though such topic would continue to be debated in future Congresses as there were skeptics that our treaties prevented our exercise of jurisdiction.  Everyone knew what the language meant, they just disagreed on application to Indians.   If Trumbull and the other framers where around in 1885 when Andrew Hyman said we subjected Indians to our criminal law, they would have agreed the Indians would be subject to our jurisdiction under their definition.  

(11) Andrew Hyman points out that Senator Trumbull did say with respect to the Civil Rights Act that children of temporary residents were excluded.   However, in a later Congress he would say both the Act and the Amendment were declaratory of the common law and only excluded children of ambassadors.  House Judiciary Chair James Wilson said we adopted the common law in the Civil Rights Act and made clear it included temporary residents.  In the 14th Amendment debates, it was made clear that children of temporary aliens were included by Senator Wade, without any objection, and Senator Conness said children of Chinese aliens were citizens  despite that the parent were only here temporarily, a theme that will be repeated multiple times in future Congresses when no one contested repeated statements that children of Chinese aliens were citizens even if they were only here temporarily on contracts with a set period.  Senator Williams as Grant’s Attorney General ruled that children of temporarily resident aliens were citizens.  No member of such Congress even suggested the amendment excluded temporary residents.  Such conclusion was also implicit in all the statements that only children of ambassadors were excluded and the statements we adopted the English common law which everyone knows did not include temporary residents.   For example, Senator Howard:

“But I held that in the sense of the Constitution every person born free within the limits of a State, not connected with a foreign minister’s family, is born a citizen whether he be white or black.”

02/05/2025

Robert Natelson on TikTok and Free Speech
Michael Ramsey

At Law & Liberty, Robert Natelson: TikTok and the First Amendment.  From the introduction:

The ultimate fate of TikTok in America remains unclear. After a brief blackout, the application returned live as discussions between TikTok and the new presidential administration continue. Officials in all three branches of the US government have weighed in, but the ultimate resolution is, of course, unknown.

In its January 17 decision in TikTok v. Garland, the Supreme Court unanimously upheld the “Protecting Americans from Foreign Adversary Controlled Applications Act” (PAFACA) against TikTok. TikTok’s parent company, ByteDance, is located in Communist China. PAFACA requires the parent company to either find a non-Chinese buyer for TikTok or terminate operations in the United States.

TikTok, of course, is a highly popular video-sharing Internet application. As detailed below, it also is a massive data-collection agency. Under Chinese law, its parent is obligated to share all collected data with the Communist government upon demand.

The court’s procedure in this Internet-related case—like its procedure in most electronic-medium cases—was wrong. Specifically, it asked the wrong questions, relied on highly subjective inquiries, and led the court into needless difficulty.

The First Amendment, ratified in 1791, protects six specific freedoms. By the time it was adopted, the broad outlines of each had been drawn by British and American statutes, judicial decisions, and custom—although there were disputes about some of the details.

Unfortunately, much of the Supreme Court’s First Amendment jurisprudence since then has been entirely disconnected from the intended meaning of the amendment. Today, the court relies on categories and balancing tests pulled out of thin air by the “progressive” majorities who dominated the bench during much of the twentieth century.

One of the most serious deviations from the actual meaning of the First Amendment is treating electronic-medium controversies as matters of free speech rather than what they are: cases involving freedom of the press. ...

02/04/2025

Joel Alicea: Bruen Was Right
Michael Ramsey

J. Joel Alicea (Catholic University of America  - Columbus School of Law) has posted Bruen Was Right (69 pages) on SSRN.  Here is the abstract:

New York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the consensus view among nearly all constitutional scholars is that Bruen’s text-and-history test is a mistake. According to originalists and non-originalists alike, Bruen’s methodology lacks a theoretical justification, is inherently manipulable, and is doomed to fail in its attempt to replace tiers-of-scrutiny-like judicial balancing tests.

I argue that Bruen’s methodology was right. Its theoretical justifications are sound; its methodology is principled; and its capacity to replace judicial balancing tests like the tiers of scrutiny is evident. In Parts I and II of this Article, I provide an exposition of the method and justification of Bruen’s text-and-history inquiry, followed by responses to the principal scholarly criticisms of Bruen’s methodology. In Part III, I examine recent scholarly defenses of Bruen’s rival—the tiers of scrutiny—and argue that Bruen represents a better approach to adjudicating constitutional rights.

The combined result of these three Parts is the most comprehensive explication and defense of Bruen’s methodology to date, a defense that is unique in a literature dominated by criticisms of Bruen. It is a defense that requires confronting some of the most vexing problems in constitutional law, such as the level-of-generality problem and the role of balancing tests in the adjudication of constitutional rights. Because these problems recur throughout constitutional law, this Article’s contributions are relevant beyond the debate over Bruen—and to originalists and non-originalists alike.

02/03/2025

Ilya Somin on Tariffs and Nondelegation
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Challenge Trump's Tariffs Under the Nondelegation and Major Questions Doctrines. From the introduction:

The Constitution gives Congress, not the executive, the power to regulate "commerce" with foreign nations. Trump claims the authority to impose these massive tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA), a vague statute that gives the president the power to set trade restrictions in situations where there is "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat."

...

Under Trump's logic, "extraordinary" or "unusual" circumstances justifying starting a massive trade war can be declared to exist at virtually any time.  This interpretation of the IEEPA runs roughshod over constitutional limitations on delegation of legislative power to the executive. For decades, to be sure, the Supreme Court has taken a very permissive approach to nondelegation, upholding broad delegations so long as they are based on an "intelligible principle." But, in recent years, beginning with the 2019 Gundy case, several conservative Supreme Court justices have expressed interest in tightening up nondelegation. The administration's claim to virtually limitless executive discretion to impose tariffs might be a good opportunity to do just that. Such flagrant abuse by a right-wing president might even lead one or more liberal justices to loosen their traditional skepticism of nondelegation doctrine, and be willing to give it some teeth.

...

More promising than the nondelegation argument is the possibility of attacking Trump's tariffs under the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'"  If the statute is ambiguous, courts must presume that Congress didn't give the agency the power the executive claims. In recent years, the Supreme Court has relied on MQD to strike down a number of sweeping assertions of authority by the Biden administration, such as its attempt to forgive over $400 billion in student loans, and the establishment of a nationwide eviction moratorium (first begun under Trump). The imposition of massive tariffs on our two largest trading partners is pretty obviously a  decision with "vast economic and political significance," one likely to cost the public even more than Biden's loan forgiveness plan would have. And, as in the student loan and eviction moratorium cases, the statutes under which the administration claims authority are far from clear in indicating it has such sweeping power. Furthermore, some of the conservative justices might welcome an opportunity to show that MQD isn't just a tool for the political right.

A key issue here is whether the nondelegation doctrine and the major questions doctrine apply to foreign affairs-related matters.  As indicated in this article on delegating war powers, my view is that under the Constitution's original meaning delegations that involve matters over which the President also has substantial independent power (common in foreign affairs), a delegation is much less constitutionally problematic.  But as Professor Somin says, tariffs and trade regulation are not in that category -- they are unambiguously included in Congress' legislative powers in Article I.  So it would seem that the same delegation standard should apply to them as applies to delegations of ordinary Article I domestic legislative power.

Unfortunately the Supreme Court in the Curtiss-Wright case held that foreign affairs delegations do categorically receive less constitutional scrutiny, and even more unfortunately, it held that in the specific context of trade regulation.  I've argued at length that Curtiss-Wright was wrong as a matter of the original meaning, but the case -- although de-emphasized in more recent Court decisions -- has never been overruled.

So I further agree with Professor Somin that the major questions doctrine (MQD) is probably a better line of attack on the tariffs.  As he says, the IEEPA -- the statute under which the President claims authority -- is broad and vague.  It's vague both as to when it can be invoked (in an emergency, which can be declared largely in the President's discretion) and as to what it allows the President to do.  And the principal justification for the MQD -- that it's needed to prevent the executive branch from aggressively overreading statutes to claim lawmaking authority Congress never intended to convey -- applies equally to foreign affairs matters as it does in domestic matters.  And finally, in my view anyway, the MQD is within the Court's constitutional power to underenforce statutes as part of the Court's judicial power.  Of course, the MQD hasn't yet been applied to foreign affairs (or to delegations directly to the President), so this would be a considerable extension.  But I don't see an originalism-based reason not to make that extension (if one agrees that the MQD is consistent with originalism).

02/02/2025

David Schwartz: Dred Scott, Roe, And Enumerationism
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted An Ugly Common Ancestor: Dred Scott, Roe, And Enumerationism (39 pages) on SSRN.  Here is the abstract:

The Dred Scott case holds a deserved place in the constitutional “anti-canon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the lead opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This essay argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that created the Republican backlash at the time—reflected, not a strong precedent for substantive due process, which was a mere makeweight argument, but instead turned on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers.

My view:  Dred Scott is fake originalism.  Dred Scott's enumerationism is fake enumerationism.  There 's no doubt that under the original meaning of Article IV, Congress had power to ban slavery in the territories.

02/01/2025

Christine Kexel Chabot: Trump v. United States and the Half-Originalist Presidency
Michael Ramsey

Christine Kexel Chabot (Marquette University - Law School) has posted Trump v. United States and the Half-Originalist Presidency (University of Michigan Journal of Law Reform, Vol. 58 (forthcoming 2025)) (17 pages) on SSRN.  Here is the abstract:

The Court's recent decision in Trump v. United States has been criticized for its ahistorical approach to presidential immunity. This essay offers the first account of the historical mismatch between the Trump Court's decision to immunize presidential removal power and Founding-era conceptions of the Presidency. Unlike the presumptive immunity that the Court recognized for most other official presidential acts, the immunity afforded for presidential removal power is absolute. The Court ruled that the President's "unrestricted power of removal" can never be regulated by Congress or considered as evidence of wrongdoing, even when the President threatens removal in order to effectuate blatantly unlawful ends. The Court's approach creates a far more powerful Presidency than was ever recognized by the Founding generation. The text of Article II authorized the President "to execute" the law, not to violate it, and it required Presidents to "take care" that the law be faithfully executed. The Court's decision to immunize removal also conflicts with Founding era understandings and laws in which Congress restricted the President's removal power.

01/31/2025

Ed Whelan on "The Meese Revolution" by Gary Lawson and Steven Calabresi
Michael Ramsey

At Law & Liberty, Ed Whelan: The Triumph of Ed Meese.  From the introduction:

Edwin Meese III served as the 75th Attorney General of the United States during President Ronald Reagan’s second term, from 1985 to 1988. In The Meese Revolution, constitutional scholars Steven Calabresi and Gary Lawson make their case that Meese is the “most significant Attorney General in U.S. history.” They provide a comprehensive intellectual history of Meese’s “role in the triumph of originalism in legal interpretation.” No other Attorney General has “so thoroughly transformed the legal culture.”

Calabresi and Lawson lament that Ed Meese “does not get the public credit and recognition that he deserves.” Their book undertakes to correct that injustice, and it succeeds admirably in doing so. It stands as a towering monument to the man they rightly honor.

On Meese and originalism:

The core principle of originalism—or, more precisely, of its dominant “original meaning” version—is that laws are to be interpreted in accord with what their text meant at the time they were adopted. As Calabresi and Lawson detail, Ed Meese as Attorney General powerfully promoted the cause of originalism through various means.

The authors open with Meese’s speech to the American Bar Association in July 1985, “a speech that has reverberated throughout American constitutional law for the last four decades.” In that speech, Meese argued for a “Jurisprudence of Original Intention” that would make the text of the Constitution and the “original intention of those who framed it” the “judicial standard in giving effect to the Constitution.” He further committed that under his leadership the Department of Justice would “endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.” (Note that Meese’s interchangeable uses of “original intention” and “original meaning” signal that the competition between those two versions of originalism hadn’t yet emerged.)

Meese’s speech, the authors explain, “sparked a national conversation.” It elicited public responses from Justices William Brennan and John Paul Stevens, which in turn enabled Meese’s prompt reply to them. Their book analyzes that debate and presents several other important speeches Meese delivered on originalist topics.

Meese and his “right-hand man” Ken Cribb also made the Department of Justice an “incubator” of originalist ideas. Calabresi and Lawson were themselves among the many “brilliant and interesting legal minds” that Meese and his top advisers hired. Calabresi worked directly for Meese, and he proudly remains Meese’s “loyal and devoted follower.” Lawson was a line attorney in the influential Office of Legal Counsel. Their excitement decades later over the “intellectual atmosphere” that prevailed at DOJ is palpable.

Chuck Cooper, the very young head of OLC, “issued a blizzard of originalist OLC opinions on almost every subject under the sun.” The Office of Legal Policy, under Stephen Markman, produced a sourcebook titled Originalist Meaning Jurisprudence and a series of originalist monographs on subjects such as religious liberty, the Ninth Amendment, and criminal procedure. And DOJ hosted three major academic conferences, on federalism, separation of powers, and economic liberties.

And from the conclusion:

As Pam Bondi prepares to become our 87th Attorney General, it’s worth contemplating what made Meese so successful. The book reveals four key ingredients.

First, Meese had Reagan’s complete trust. The ties between the two men were tight and longstanding. Meese was Reagan’s chief of staff during most of his years (1967 to 1975) as governor of California, worked full-time on his 1980 presidential campaign, and headed his presidential transition team. Meese held the title of Counselor to the President during Reagan’s first term and was a member both of his Cabinet and of the National Security Council. Amazingly, during his time as Attorney General, he continued to serve as a member of the National Security Council and also chaired the White House’s Domestic Policy Council.

...

Second, Meese had a clear mission in mind. He was keenly aware of the dismal state of Supreme Court decision-making (I will not dignify it with the term constitutional law) that had persisted since his days as a prosecutor in the early 1960s, and he knew that a foundation had to be laid for genuine reform. He recognized the common-sense soundness of originalism, even as he knew that it required development.

...

Third, Meese knew that personnel is policy. He carefully selected his key advisers on the originalism project, put his trust in them, and delegated authority to them. More broadly, he knew better than to try to micromanage an organization of the size and complexity of DOJ.

Fourth, Meese had strong character as well as deep intellect. He inspired those who worked for him. I have had the pleasure of coming to know Meese over the past two decades, and the authors’ celebration of his character rings true.

Some readers might be put off by the fact that their praise sometimes crosses the line into hagiography. Humble as Meese is, I am guessing that he would recoil at their declarations that he “has lived a perfect life of service to other people and to his country, and to the world” and that “he exemplifies what St. Thomas Aquinas called the seven heavenly virtues: he is brave, wise, just, temperate, and full of faith, hope, and love.” But the very fact that Meese could receive such otherworldly acclaim is a compelling testament to the dedication he earned from those who had the honor to work for him.

01/30/2025

My Views on Birthright Citizenship with a Nonoriginalist Argument Against Birthright Citizenship
Mike Rappaport

Given the attention focused on birthright citizenship, I thought I would discuss my position.  Overall, I am something of a moderate on the issue, taking what are regarded as both pro-immigration and anti-immigration positions.*  

First, I believe that the original meaning of the 14th Amendment requires birthright citizenship largely for the reasons that Mike Ramsey has given.

Second, I believe there is a reasonably strong case against birthright citizenship based on a nonoriginalist, living Constitution approach.  I present this position at greater length below but I do not adopt it since I am an originalist.  But nonoriginalists who support birthright citizenship need to explain why they reject the argument I present below.

Third, as a normative or policy matter, I strongly favor a sensible and generous immigration system.  I would allow many people to immigrate – but only those who come here legally and are likely to accept the basic values of our nation.  I also believe we should be especially receptive to people who can make a valuable contribution to the country. 

Fourth, as a normative or policy matter, I oppose birthright citizenship.  While I favor significant immigration, there is little reason to allow children who just happen to be born here to automatically become citizens.  Citizenship should be reserved for people based on the sensible immigration system discussed above.  Birthright citizenship also makes it harder to have guest worker programs.

The Nonoriginalist Case Against Birthright Citizenship

Since I have never seen this argument anywhere else, let me briefly elaborate on why I believe there is a reasonably strong case against birthright citizenship based on a nonoriginalist, living constitution approach.

Text and Intent – One can read the text to deny the children of illegal aliens born in the US automatic citizenship. The 14th Amendment provides “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens.” What does “subject to the jurisdiction of the United States” mean?  I agree with Ramsey that the original meaning supports birthright citizenship but a nonoriginalist can read it differently.  One can read “subject to the jurisdiction of the United States” to mean “subject to the exclusive jurisdiction of the United States.” 

Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world.  By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country.  Thus, the children of illegal aliens would not be “subject to the exclusive jurisdiction of the United States.”  It is true that the language does not say "exclusive jurisdiction" but sometimes people use language loosely, as when they use "property" to mean "real property."  While inserting the term "exclusive" is a less persuasive reading of the text than the originalist one that Ramsey offers, nonoriginalists are not wedded to strict textual interpretation. 

Moreover, one might argue that something like exclusive jurisdiction was intended.  After all, the statute that the 14th Amendment was modeled on -- the Civil Rights Act of 1866 -- stated that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."  This would have excluded illegal immigrants for much the same reason that exclusive jurisdiction would. 

Normative Arguments – There are also strong normative arguments against birthright citizenship for the children of illegal immigrants (and for many others), as I mentioned above.  Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation. 

Changes in Society – The circumstances at the time might also be thought to argue against the originalist interpretation that Ramsey offers. At the time of the 14thAmendment, there was not an illegal immigration issue, since there were few, if any federal laws restricting immigration.  Thus, the Framers of the Amendment were unlikely to have had that issue in mind.  Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter.  

Other Developed Nations – Another type of nonoriginalist argument is to look to the existence of laws throughout the world, especially that of “civilized” countries in Europe.  A strong trend in these laws is thought to suggest that normatively the United States ought to follow it.  Significantly, other than Canada and the United States, there are very few developed countries that have birthright citizenship (depending on how one defines a developed country). And none of the European countries have it and several developed nations have repealed it in the last generation.

Thus, there is a strong nonoriginalist argument for reading the 14th Amendment not to confer birthright citizenship, at least to the children of illegal aliens.  Nonoriginalists might not agree with this argument, but it is hard for them to argue that it is illegitimate, since many nonoriginalists accept this type of argument.  In the end, one can’t have it both ways.  If one favors the freedom that nonoriginalist interpretation gives to an interpreter, then one must live with the way that others may use that interpretive freedom.

* I have blogged about this issue in the past and I borrow some of my language from previous posts.

Jonathan Adler on Trump and Presidential Removals
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: Is Humphrey's Executor in the Crosshairs?  From the introduction: 

President Trump's decision to fire over a dozen agency inspectors general may be legal, but he has made other moves that are almost certainly unlawful under existing Supreme Court precedent, Humphrey's Executor in particular.

On Monday, Trump purported to fire two Democratic members of the Equal Employment Opportunity Commission and the Chair and General Counsel of the National Labor Relations Board. Any one of these dismissals could result in litigation, and one in particular could set up a direct challenge to the Humphrey's Executor precedent.

Under Humphrey's Executor, decided in 1935, Congress may prevent the President from removing members of multi-member independent agencies (such as the Federal Trade Commission) without cause. A more recent decision, Seila Law (which I unpacked here) held that this does not apply to agencies exercising substantial authority headed by a single individual (such as the Consumer Financial Protection Bureau). While Seila Law did not purport to modify Humphrey's Executor, the two decisions are clearly in tension.

That brings us to President Trump's latest moves. ...

And from later on:

The decision to remove NLRB Chair Gwynne Wilcox, on the other hand, would seem to put Humphrey's Executor in the crosshairs. The relevant statutory provisions provide that members of the NLRB are appointed for set terms and (as is particularly relevant here) can be removed "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." Thus a President cannot remove a member merely because of anticipated policy differences or because the President wants the ability to make his own appointment.

There may be a clever way to try and distinguish the removal of an NLRB member from the removal of a Federal Trade Commission member (which is what was at issue in Humphrey's), but no serious argument for such an outcome comes to mind. This would suggest that if Wilcox contests her removal, the Administration will argue that Humphrey's Executor should be overruled, and courts will be forced to confront the question. Chief Justice Roberts may be a pro at manipulating statutory text to prevent disruptive outcomes, but this would seem to be beyond even his expertise.

In my view Humphrey's Executor may limited to its facts, or what the Court claimed were its facts.  Distinguishing its prior decision in Myers, the Court said:

The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department, and who exercises no part of the executive power vested by the Constitution in the President.

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive.  (emphasis added).

I have serious doubts about the Court's description of the agency at issue in Humphrey's, but taking the Court at its word, Humphrey's appears to be limited to agencies that "exercise[ ] no part of the executive power vested by the Constitution in the President."  That seems worth exploring as a way to distinguish modern agencies, which I would think often do exercise such power.

The Court went on to say:

In administering the provisions of the statute in respect of "unfair methods of competition" -- that is to say, in filling in and administering the details embodied by that general standard -- the commission acts in part quasi-legislatively and in part quasi-judicially. In making investigations and reports thereon for the information of Congress under 6, in aid of the legislative power, it acts as a legislative agency. Under § 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function -- as distinguished from executive power in the constitutional sense -- it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.

I have further serious doubts that the concepts of "quasi-legislative" and "quasi-judicial" have any basis in the Constitution or any meaningful content today.  But again, to the extent the Court was saying that the agency in Humphrey's didn't really exercise executive power, that seems a potential basis to distinguish modern agencies (whether or not it was actually a fair characterization of the agency in Humphrey's)

01/29/2025

Richard Epstein on Birthright Citizenship
Michael Ramsey

At the Civitas Institute, Richard Epstein: Trump’s executive order stands on a firmer footing than its vocal critics acknowledge.  From the core of the argument: 

On the historical front, there were no restrictions on immigration prior to the Civil War so there is no body of law that deals with it.  But the problem of the sojourner had to come up frequently, and there is no record of any parent claiming that their children born in the United States were citizens, so on one half the problem, the historical record is clearly against the claim.  And as illegality is, if anything, a more serious offense, it seems clear that if that problem had arisen, there is no reason to think that citizenship would have been granted.

Yet given the weak historical record, the overall understanding of Wong Kim Ark depends heavily on the key text of the Citizenship Clause of the Fourteenth Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

That language comes hard on the heels of the Civil Rights Act of 1866 which opens with this declaration:

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery . . .

The 1866 Act thus includes foreigners on the list of persons, along with Indians not taxed.  Diplomats are on that list. The Fourteenth Amendment contains no enumeration of excluded parties but does contain the phrase “subject to the jurisdiction thereof” that points to a set of unenumerated exclusions.  It is widely agreed that this phrase includes diplomats and their families who owe loyalty to their sovereign.  But if that were the only class of cases covered, the exception to citizenship language could have been explicit.  And it would be odd in the extreme if there were any reversal on foreigners, especially illegal aliens and sojourners, without some explicit notice of the point.  Yet the early case law speaks to these issues against the claim of birthright citizenship.  Thus, from the outset, it has never been disputed that members of the Indian tribes within the United States did not obtain citizenship of this clause.  Thus, Elk v. Wilkins (1884) held that the Indian plaintiff was not an American citizen because the Citizenship Clause required that he had to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.” Thereafter, it took The Citizens Act of 1924 to make by statute members of Indian tribes citizens of the United States.  Members of Indian tribes occupy a complex position under American law, which followed, according to Elk that “an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.” And the same position had also been taken in the well-known Slaughter-House Cases (1872). Speaking about the Citizenship Clause in the wake of Dred Scott v. Sandford (1857), they wrote: “That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  Both cases were cited and distinguished in Wong Kim Ark, which is no surprise since the same Supreme Court Justice, Horace Gray, wrote both Elk and Wong Kim Ark.

(Thanks to Jonathan Adler for the pointer.)

It's a forceful essay, as one would expect from Professor Epstein, and I agree that the case against the President's position isn't as self-evident as some suggest.  But I'm not persuaded.  I'll just note three quick points in response.

(1) Like much of the writing on its side of the issue, the essay does not develop an account of "subject to the jurisdiction [of the United States]" that that explains how that phrase meant something other than simply "subject to the legal authority of the United States."  In particular, it does not develop a meaning of the phrase that would include non-citizen permanent residents (held to be covered by the Citizenship Clause in the Wong Kim Ark case) but not non-citizen visitors.  (The best effort I've seen in that direction is Andrew Hyman's recent paper.)

(2) The essay does not address the fact (which I don't think is disputed) that under English common law children born in England (other than children of diplomats) were English subjects without regard to the status of the parents.  It's true that there was some dispute in the pre-Civil War United States whether that rule carried over completely to U.S. common law, though in my view the majority view was that it did.  (It's simply not true that there is "no record" of children of temporary visitors claiming U.S. citizenship in the pre-Civil War era.  As I noted in a prior post,  this situation was raised and discussed in court cases and commentary.)  The longstanding English rule is surely important historical background, and makes it entirely plausible that the Fourteenth Amendment's framers adopted a parallel rule.

(3) In my view the 1866 Civil Rights Act cuts against the narrow view of the Citizenship Clause, not in favor of it.  If one reads the Act to exclude from citizenship the children of all foreign citizens, and if the Fourteenth Amendment's framers had wanted that rule, they could have simply carried over the language of the Act.  Instead, they chose different language that indicates a more limited exclusion.

Ultimately, I agree with the essay that the issue comes down to the meaning of "subject to the jurisdiction," but as explained in my article on the matter from a while back, I think that phrase had a clear common meaning at the relevant time, and the various historical ambiguities one might raise in opposition aren't enough to overcome the text.

01/28/2025

Stuart Ford: The Preamble's Concern with Internal and External Threats
Michael Ramsey

Stuart Ford (University of Illinois at Chicago - UIC School of Law) has posted To Insure Domestic Tranquility and Provide for the Common Defence: The Preamble's Concern with Internal and External Threats (44 pages) on SSRN.  Here is the abstract:

There is a growing scholarly movement to rehabilitate the Preamble as a tool for understanding and interpreting the Constitution.  While there have been a number of articles arguing that the Preamble should be used to interpret the Constitution, there have been few articles that explore what the specific words and phrases in the Preamble mean.  Yet understanding the meaning of the phrases in the Preamble is a prerequisite to using it to interpret the Constitution.  This Article fills a gap in the Preamble literature by exploring the origins and meaning of the phrases "insure domestic tranquility" and "provide for the common defence."  

Both phrases have a rich history that begins in sixteenth century England and extends to eighteenth century America.  Both phrases were widely used in the decades preceding the Constitutional Convention and both had well-understood public meanings.  Those pre-existing public understandings can be used to understand what the Preamble means when it imposes a duty on the federal government to ensure domestic tranquility and provide for the common defence.  As this Article shows using contemporaneous documents, providing for the common defence referred to the obligation to supply the means necessary to protect the United States from attack, while insuring domestic tranquility referred to the government's obligation to ensure peace and calm within the country.  These two goals complement each other with domestic tranquility focusing on internal threats and the common defence focusing on external threats.

A related article, noted on this blog previously, is Stuart Ford, The Role of the Preamble: Evidence from the Constitutional Convention and Ratification Debates (Texas A & M L. Rev., forthcoming 2025).

I think it's methodologically appropriate for originalists to look at the preamble to resolve genuine ambiguities in the Constitution's text. But I also think people tend to look at the preamble when they can;t find what they're looking for in the substantive part of the Constitution.

01/27/2025

Citizenship and Temporary Visitors to the United States
Andew Hyman

In a blog post on January 23, Michael Ramsey wrote about a child born in the United States to a mother temporarily visiting the U.S. from abroad.  Mike asserted that denial of birthright citizenship for the child would be “not constitutional under any version of originalism.”  But it would be under my version.

In support of his assertion, Mike's blog post relies upon (among other things) a New York case, Lynch v. Clarke (1844), and also an 1848 edition of a treatise by James Kent which discussed Lynch v. Clarke.  But Mike previously wrote in a law review article that, “despite the holding in Lynch, it seems fair to say that the issue of temporary visitors remained somewhat unsettled in the mid-nineteenth century.”  So, if the matter was unsettled, then why should we be certain that the U.S.-born child of temporary foreign visitors qualifies under the Citizenship Clause?  Mike acknowledges that an 1863 New York case (Ludlam v. Ludlam) was in “considerable tension with Lynch,” so basically I would say that New York law was a mess when it came to this subject, as of the mid-1860s.

Putting aside New York, other states were following the lead that Justice John McLean set in his Dred Scott dissent.  McLean wrote:

It has never been held necessary, to constitute a citizen within the act [authorizing lawsuits in federal court], that he [i.e. Mr. Scott] should have the qualifications of an elector [i.e. a voter].  Females and minors may sue in the federal courts, and so may any individual who has a permanent domicil in the state under whose laws his rights are protected, and to which he owes allegiance.

Thus, domicile (or “domicil” in the old-fashioned spelling) was a critical factor in constituting someone a citizen.  And temporary visitors from abroad ain’t got no domicile here in the United States.  An 1865 case in the West Virginia Supreme Court echoed Justice McLean: “in the United States, domicil is citizenship — that which describes the one describes the other….”

It is a mistake to assume that “jurisdiction” has only one meaning in every context, and the word “jurisdiction” in the Citizenship Clause therefore needs to be treated carefully.  If it simply meant being subject to U.S. laws, then it would be very hard to argue that indigenous Americans were simultaneously not subject to U.S. jurisdiction and yet were subject to the Major Crimes Act of 1885 (which gave federal prosecutors authority to prosecute crimes on tribal lands, including murder, rape, arson, and burglary).  It could be, of course, that the Major Crimes Act has been unconstitutional since 1885, or alternatively that indigenous Americans have all qualified for birthright citizenship under the Citizenship Clause since 1885, but Mike hasn't made that case, as far as I know.

There were antebellum descriptions of “jurisdiction” that meant more than merely being subject to U.S. laws.  For example, Joseph Story wrote this:

The question of domicil is of very great importance, for it often regulates political and civil rights, and founds or destroys jurisdiction over the person or property.

In that conception of jurisdiction, domicile is required, which matches up with what Justice McLean wrote in his Dred Scott dissent, quoted above.  It also matches up with other key evidence described in my recent article on this subject.   Many senses of the word "jurisdiction" coexisted, so in my view Mike needs to justify plucking one particular conception of jurisdiction from an opinion of Chief Justice Marshall, even if Marshall happened to be speaking about immigration.

The Citizenship Clause still leaves naturalization as an option for temporary visitors to the United States, but I doubt there is any more support for it in Congress now than there was in 1866.  Senator Fessenden was particularly concerned about that possibility, and soon after he raised that concern the Citizenship Clause was amended to clarify that granting U.S. citizenship to people would have the effect of granting state citizenship as well, but only in the "state wherein they reside."

01/26/2025

Steven Smith: Jurisdictional Diversity, Tradition, and the Religion Clauses
Michael Ramsey

Steven Douglas Smith (University of San Diego School of Law) has posted Jurisdictional Diversity, Tradition, and the Religion Clauses (53 pages) on SSRN.  Here is the abstract:

To the consternation of critics, the Supreme Court in recent establishment clause decisions has turned away from modern precedents and doctrines– the Lemon test, the “no endorsement” test– and has instead prescribed a return to “history” and “tradition,” or to “historical practices and understandings.”  The Court is correct to see the modern decisions and doctrines as a departure from earlier American history and tradition.  There is, however, one vital aspect of the tradition that the Court has not recognized or revived– namely, the tradition of allowing states and localities the freedom, within broad limits, to develop their own approaches to the relations between government and religion.  On the contrary, under the banner of an expansive (and, ironically, intrusively interventionist) “neutrality,” the Roberts Court has followed the example of its predecessors in imposing a uniform constitutional orthodoxy on states– a different orthodoxy, to be sure, but one that may be no less straitening than the secularist/separationist orthodoxy enforced by the Warren and Burger Courts.

Pleas for flexibility and “play in the joints” have come mostly from dissenting justices.  But these pleas do not reflect any affirmative commitment to constitutional decentralization or deference to states and localities in church-state matters.  Rather, they represent a “second best” or fallback strategy: lacking five supporting votes on the current Court, the separationist jurisprudence of the later twentieth century can no longer be imposed in imperial fashion on states; so the next best thing is to let states themselves persist in following the separationist position if they choose to do so.  In this respect, the dissenters’ pleas for flexibility and deference to states bear a resemblance to the post-Brown “states’ rights” rhetoric that was sometimes deployed as a strategy for resisting nationally-imposed racial desegregation.

Neither on the Court nor in the legal academy does there appear to be any serious appreciation for the affirmative virtues of the nation’s older tradition of jurisdictional diversity– of allowing states and localities, within limits, to forge their own distinctive paths through the tangled forests of church and state.  This lack of appreciation is unfortunate at a time when polarization, often directly or indirectly related to religion, threatens to tear the country apart.  And it exhibits an on-going disregard of tradition, even as the Court aspires to respect and return to tradition.

This article explains how the strategy of jurisdictional diversity was adopted in the Constitution and how that strategy prevailed for the Republic’s first century-and-a-half.  The article also explains how that strategy was forgotten or abandoned-- with unfortunate consequences (including jurisprudential incoherence). And in its laudable efforts to correct past errors and return to history and tradition, the Roberts Court has failed to appreciate the centrality of jurisdictional diversity in that tradition.  The article discusses how this strategy might be revived, and reflects on the promising but also fraught potential consequences of such a revival.

01/25/2025

Benjamin Keener: Bonham's Case and Judicial Duty
Michael Ramsey

Benjamin Keener (University of Pennsylvania Carey Law School J.D. '26) has posted Bonham's Case and Judicial Duty (67 pages) on SSRN.  Here is the abstract:

Bonham’s Case is perhaps one of the most famous cases in the common law tradition. It is also one of the most poorly understood. Chief Justice Edward Coke appears to endorse a power of judges to invalidate acts of Parliament that violate reason, natural law, or some other higher law. This reading is wrong. Proving why, however, has challenged the academy for the past hundred years. This paper takes up that labor.

Part I summarizes the case, the opinion, and the surrounding literature. Part II surveys the early modern conventions of statutory interpretation, including competing theories of voidance and hermeneutics deployed in contract and property law. Part III reconstructs Coke’s drafting process by focusing on the neglected prefatory clause of the famous passage (“And it appeareth in our Books, that . . .”). By focusing on the start of the famous passage, we find that Coke likely drew from his own theory of repugnant acts in The Case of Alton Woods. Part IV compares the two cases, showing that Coke intended the famous passage to be narrowly understood as limited to specific impossibility scenarios. Often overlooked is the role of confirmatory acts of Parliament, acts which traditionally receive special interpretive treatment. Part V, finally, assesses Coke’s essential judicial commitments and harmonizes his views in Bonham’s Case with his broader theory of judicial duty. Judges are obliged to apply the law of England, which sometimes aligns and sometimes does not align with the law of nature.

Via Larry Solum at Legal Theory Blog, who says: "Highly recommended. Download it while it's hot!"

01/24/2025

Stephen Sachs: The Twelfth Amendment and the ERA
Michael Ramsey

Stephen E. Sachs (Harvard Law School) has posted The Twelfth Amendment and the ERA (47 pages) on SSRN.  Here is the abstract:

Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. After President Biden’s statement disregarding the deadline and describing the ERA as the Twenty-Eighth Amendment, its doubtful validity may provoke a minor constitutional crisis.

But there may be a legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to append.

This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any valid change to the Constitution’s text. The recent lobbying efforts on its behalf, including President Biden’s statements, are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost. The National Archives is the wrong place to play with fire.

The author will present this paper at the Originalism Works-in-Progress conference in San Diego in February, with comments from Thomas Schmidt (Columbia).

01/23/2025

John McGinnis & Michael Rappaport:The Constitution Neglected
Mike Rappaport

Over at Law and Liberty, John McGinnis and I have a review of Jonathan Gienapp’s new book Against Constitutional Originalism.  As with our review of his prior book, we are strongly critical of Gienapp’s argument:  

With his new book Against Constitutional Originalism, Stanford historian Jonathan Gienapp has garnered effusive praise from those eager to undermine the originalist enterprise. For those attracted to the originalist project, however, the book is unlikely to persuade. On the contrary, it highlights the persistent difficulties historians face when they venture into constitutional interpretation. Gienapp neglects the most primary of sources—the Constitution—its text, structure, and self-referential nature. He compounds this oversight by privileging mere disagreement among historical actors over rigorous evaluation of their arguments, a hallmark of legal reasoning. He also confuses objections to originalism as an interpretive method with objections to particular readings of the original meaning. Finally, Gienapp often fails to situate the Constitution in the transformative historical moment of its creation, particularly the Founders’ disillusionment with the unwritten British constitution. These deficiencies weaken his case and, ironically, reinforce the intellectual strength of originalism, which at its best rigorously takes account of text and context. 

As with his previous book, Gienapp fails to recognize that it is the document that is unambiguously the Constitution.  While we acknowledge that unwritten law may properly influence one’s interpretation of the Constitution, that does not mean that unwritten law is the Constitution. 

We also criticize Gienapp’s reading of the historical record:

It is puzzling that Gienapp, as a historian, also neglects the Framers’ historical experiences which would subvert his thesis. The colonists’ long struggle with Britain highlighted the perils of an unwritten constitution—because much of the debate with the British turned on what was the basic content of the unwritten British constitution. This instability shaped the Framers’ insistence on a written Constitution. They sought something less ambiguous, a fixed standard that could serve as a foundation for governance. The meticulous drafting process, involving the Committee on Detail and the Committee on Style, underscores this intent. Every word was weighed, every phrase scrutinized, to create a document that was as clear-cut as possible. Furthermore, the use of special conventions for ratification in both state and federal contexts demonstrates the Framers’ concern with making a written constitution the people’s fundamental law. Gienapp’s failure to grapple adequately with this context weakens his argument and leaves his critique unmoored from the realities of the Founding.

Further, we maintain Gienapp misunderstands originalism:

Gienapp’s characterization of originalism is shaky at times. He suggests that originalists disregard social concepts of the time in determining original meaning. But most originalists recognize the potential relevance of political concepts to understanding constitutional provisions. The real question is not whether such concepts matter, but how far they bear on meaning—a question originalists resolve through evidence and rigorous analysis.

There is much more in the essay.  As they say, read the whole thing.

Birthright Citizenship and Temporary Visitors
Michael Ramsey

Most commentary on President Trump's executive order regarding birthright citizenship has focused on its application to persons not lawfully present in the United States.  As I've argued at length elsewhere, I think the Constitution's original meaning requires citizenship for the children born in the United States, regardless of their parents' status.  I acknowledge in that article, though, that some other versions of originalism might not reach the same conclusion.  The current situation regarding undocumented migration is something the framers of the Fourteenth Amendment didn't experience and could not have foreseen, so an intent-oriented originalist might say that the Amendment was never intended to apply to undocumented migrants.  (That's not my version of originalism, so I don't think that.  But people who want to say that the Constitution clearly conveys citizenship on the children of persons not lawfully present in the United States need to explain why they favor my version of text-based originalism and not intent-based originalism.)

In this post I want to focus on the other part of the executive order that has been less discussed.  The executive order also denies citizenship to U.S.-born children of lawful temporary visitors: 

 It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons ... when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

I think this provision is not constitutional under any version of originalism.  First, the framers of the Fourteenth Amendment were, we may presume, fully aware of the question regarding the citizenship of children of temporary visitors.  That issue had been directly addressed in a relatively recent (for them) 1844 New York state case, Lynch v. Clarke.  The court, holding that the U.S.-born child of temporary visitors was a U.S. citizen under common law, observed: 

[B]y the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. . . .

and added with perhaps some overstatement:

I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, that the birth in this country does of itself constitute citizenship.

The 1848 edition of James Kent's widely-used treatise on American law discussed Lynch favorably.  (For citations and further discussion, see my article, notes 33-43).

Second, in drafting the Amendment, the framers used a phrase that, in the legal language of the time, included temporary visitors.  The Amendment states (as is well-known at this point):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. (emphasis added)

There is simply no doubt that temporary visitors, and by extension their children, were in the nineteenth century meaning subject to the jurisdiction of the United States.  Chief Justice Marshall directly addressed the situation of temporary visitors in The Schooner Exchange v. McFaddon (1812).  He began by saying that "[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute. . . . "  Although there were some exceptions (for foreign sovereigns and diplomats), Marshall explained that territorial jurisdiction did apply to temporary visitors:

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would
be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and not one motive for requiring it.

Justice Story made a similar point in his Commentaries on the Conflict of Laws (1834).  Emer de Vattel, the great eighteenth century writer on international law, observed that "foreigners who pass through or sojourn in a country, either on business, or merely as travellers” are “subject to the laws” of that country because “[t]he sovereignty is the right to command
the whole country; and the laws are not simply confined to regulating the conduct of the citizens towards each other, but also determine what is to be observed by all orders of people throughout the whole extent of the state.”  (Citations at notes 153-156 of my article).

In sum, "subject to the jurisdiction" (or "amenable to the jurisdiction," as Marshall put it) meant subject to the nation's laws.  Foreign sovereigns and diplomats were not subject to U.S. laws (as Marshall held in McFaddon) because they had immunity, but temporary visitors were.

Thus we can be confident that (a) the Framers knew about the issue of U.S.-born children of temporary visitors, and knew from Lynch and Kent's Commentaries that the common law generally treated them as U.S. citizens; and (b) the Framers chose language ("subject to the jurisdiction") that they knew paralleled language leading commentators had used to describe the legal status of temporary visitors.  It follows that the Framers of the Fourteenth Amendment intended to give citizenship to the children of temporary visitors.  And it is not implausible to think they did, since that simply constitutionalized the general common law rule.

(Aside:  co-blogger Andrew Hyman has an interesting contrary take on the Amendment's language focused on the phrase the "the State wherein they reside."  But I'm not persuaded.)

01/22/2025

Michael Showalter: The Supreme Court Versus the Construction Zone
Michael Ramsey

Michael Showalter (Independent) has posted The Supreme Court Versus The Construction Zone: The Justices Reject Law-Runs-Out Theory (George Mason Law Review, forthcoming) (19 pages) on SSRN.  Here is the abstract:

We’re all originalists and textualists now—when the text is clear.  But there remains deep disagreement about whether original understanding controls when legal text doesn’t provide an incontestably clear answer.  The U.S. Supreme Court’s Chevron doctrine, for example, held that a legal question of interpretation becomes a policy question whenever a statutory text has multiple reasonable readings.  Justice Elena Kagan elaborated this theory in 2019, asserting that when there is interpretive uncertainty, the law has “run out” and “policy-laden choice” is all that is left.  And some constitutional theorists have similarly asserted that interpretive uncertainty means that the law has “run out” and judges must enter a “construction zone” in which “political,” “normative” considerations apply.

In a series of Summer 2024 cases, the Supreme Court forcefully rejected the law-runs-out theory.  Overruling Chevron in Loper Bright v. Raimondo, the Court reestablished the constitutional principle that the interpretation of legal text always concerns law and not policy.  Judges facing uncertainty about statutory meaning, the Court wrote, may not “throw up their hands” because the law has “supposedly ‘run out.’”  Three days later, the Court practiced this principle in Corner Post v. Federal Reserve by focusing exclusively on law despite interpretive disagreement.  The lower courts had focused on policy concerns rather than statutory text, and at oral argument Justice Kagan defended the lower courts by asserting that “there’s not much in the text to look at.”  But the Court’s majority opinion methodically examined the linguistic meaning, background cluster of ideas, and precedent surrounding the pertinent statutory phrase.  The concurring opinions in United States v. Rahimi, meanwhile, reject law-runs-out theory in the constitutional context.

The Supreme Court rejected law-runs-out theory because Chevron, Justice Kagan, and law-runs-out scholars could not reconcile law-runs-out theory with the Loper Bright justices’ originalist commitments.  The modern originalist movement began as a counterrevolution against perceived judicial policymaking.  A theory compelling judicial policymaking, therefore, was never likely to succeed at this Court.

01/21/2025

Andrew Hyman: Originalism, Illegal Immigration, and the Citizenship Clause
Michael Ramsey

Andrew Hyman (independent) has posted Originalism, Illegal Immigration, and the Citizenship Clause (30 pages) on SSRN.  Here is the abstract:

The Citizenship Clause of the Fourteenth Amendment does not apply in cases of illegal immigration, but the arguments for that principle are not monolithic. The best reading of the original understanding in the 1860s is roughly this: the Clause impliedly requires domicile in the United States, domicile in turn requires at least local allegiance, but people who have not been received into the U.S. cannot pay any allegiance, so the dilemma is avoided by requiring domicile de jure — that is, the domicile must be legal. This dichotomy between de jure and de facto domicile was well-known in the 1860s. In cases of illegal immigration, citizenship should be sought via naturalization. Intertwined with birthright citizenship is the Clause’s guarantee of state citizenship, and scholars are right who say Washington D.C. is out of compliance, because Congress has not ensured state citizenship there. 

RELATED: Trump to end birthright citizenship for children of illegal immigrants, halt refugee flow.

UPDATE:  Here is the executive order.  It also applies to U.S.-born children of lawful temporary visitors.

01/19/2025

Fred Smith: Younger and Older Abstention
Michael Ramsey

Fred O. Smith, Jr. (Emory University School of Law) has posted Younger and Older Abstention (123 Mich. L Rev. ___ (2025), forthcoming) (55 pages) on SSRN.  Here is the abstract:

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court's emphasis that abstention is a narrow exception to federal courts' duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of "free-floating federalism," diverging from the Supreme Court's careful balance between comity and individual rights. This has led to a significant expansion of criminal abstention doctrine in lower courts, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pre-trial detention and child-welfare proceedings. 

Given the federal judiciary's increased emphasis on tradition in interpreting contemporary equitable remedies, this Article contrasts these novel expansions with historical equitable practices. While the doctrine of criminal abstention is now known as "Younger abstention" after the 1971 case Younger v. Harris, criminal abstention and its core exceptions have roots in centuries-old equitable proceedings in both the United States and England. Historically, courts of equity intervened in ongoing criminal proceedings when those proceedings were inadequate to redress harm and when irreparable harm would otherwise result. Moreover, in the decades after the Fourteenth Amendment, federal courts similarly balanced federal constitutional rights against state interests in ways that accounted for a federal judicial role in ending great irreparable harm. The most recent lower court expansions of the doctrine are in severe tension with that tradition.

I find the argument intuitively appealing, because (as discussed here in an entirely different context) I think federal courts have an obligation to hear (at least) constitutional and federal statutory claims absent a near-founding era practice to the contrary.  So I think the presumption is against abstention and related doctrines.  I'm not sure how that affects Younger abstention though.

01/18/2025

Mark Storslee: History and the School Prayer Cases
Michael Ramsey

Mark Storslee (Emory University School of Law) has posted History and the School Prayer Cases (110 Va. L. Rev. 1619 (2024)) (87 pages) on SSRN.  Here is the abstract:

In a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent legal developments have rendered those decisions unstable. And with the Court’s recent turn to “historical practices and understandings,” many question whether the School Prayer Cases can possibly survive.

It is too soon to tell where the Court’s renewed focus on Founding-era history might lead. But this Article contends, contrary to both some originalist Justices and their critics, that a focus on history does not spell the end of the School Prayer Cases. On the contrary, it may well place those decisions on firmer ground.

In a recent opinion, the Supreme Court observed that state-sponsored school prayer bears some relation to at least one “hallmark” of Founding-era establishments—namely, laws requiring citizens to attend worship in the established church. Contrary to what some Justices have suggested, however, the problem with these Founding- era laws was not that they lacked exemptions for dissenters. Rather, for the Founding generation, laws mandating attendance at state- sponsored worship were objectionable, opt-outs or no, because such laws exceeded the government’s rightful authority. On this view, the key feature of the School Prayer Cases is not the presence or absence of exemptions or proof of individual coercion. Instead, it is the government’s claimed right to mandate attendance at worship in the first place, no matter how tolerant the scheme. And understanding that point may offer important insight into larger questions about the propriety and limits of government-sponsored prayer, inside as well as outside of public schools.

01/17/2025

Balkinization Symposium on Curtis Bradley's "Historical Gloss and Foreign Affairs"
Michael Ramsey

At Balkinization, a symposium:

This week at Balkinization we are hosting a symposium on Curt Bradley's new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

We have assembled a terrific group of commentators, including Elena Chachko (Berkeley), Kristen Eichensehr (Virginia), Richard Fallon (Harvard), Jean Galbraith (Penn), Michael J. Gerhardt (UNC), Marty Lederman (Georgetown), Julian Davis Mortenson (Michigan), Jide Nzelibe (Northwestern), and Michael Ramsey (San Diego).

At the conclusion, Curt will respond to the commentators.

Here are the first two posts:

Elena Chachko: History and the Separation of Powers

Michael D. Ramsey, Historical Gloss and Originalism

01/16/2025

Lawrence Solum & Randy Barnett: Originalism and the Party Presentation Principle
Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) & Randy E. Barnett (Georgetown University Law Center) have posted Originalism and the Party Presentation Principle (43 pages) on SSRN.  Here is the abstract:

The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.

For originalists, the importance of party presentation is clear in cases where the parties fail to present originalist arguments and the Supreme Court therefore decides the case on the basis of precedent, historical practice, and tradition, or constitutional values—factors that living constitutionalism substitutes for original meaning. With original meaning banished, the result can be a decision with an outcome, holding, and reasoning that is inconsistent with the original meaning of the constitutional text. And lower courts may view the Court’s nonoriginalist decision as foreclosing any further consideration of originalist arguments, not only on the narrow issue actually decided by the Court, but on adjacent issues to which the Court’s reasoning is relevant.

In Part I, we briefly discuss originalism and its rivals. In Part II, we summarize existing party presentation doctrine and explore the many unresolved questions about the shape of the principle. Next, in Part III, we consider the interaction between party presentation and precedent. In Part IV, we articulate an originalist approach to party presentation, including what we see as the first best approach to party presentation—the originalist version of the principle is minimalist—and an originalist approach to precedent shaped by the principle. Finally, in Part V, we apply the framework that we develop to the party presentation in the Supreme Court, the lower federal courts, and state supreme courts—and for appellate advocates, especially repeat players among the Supreme Court bar. There is, of course, a conclusion.

The authors will present this paper at the Originalism Works-in-Progress conference in San Diego in February, with commentary from Tara Grove (Texas).

01/15/2025

Josh Blackman on Jack Smith on Insurrection
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Jack Smith Explains Why He Did Not Charge Trump With Insurrection.  From the introduction and beginning of the analysis: 

Attorney General Merrick Garland has released Volume I of Jack Smith's report, which focuses on the January 6 prosecution of Trump. Smith addresses one of the lingering questions: why did he not charge Trump with violating the federal insurrection statute (18 U.S.C. § 2383). In early 2021, Seth Barrett Tillman and I wrote an article anticipating a prosecution based on Section 2283, but that case would never come.

First, Smith explains that there was no clear definition under federal law for an "insurrection." He acknowledges that the Colorado Supreme Court found that the attack on the Capitol was an insurrection as that term was used in Section 3. Likewise, some federal courts in D.C. described the attacks as an insurrection. "These cases, however, did not require the courts to resolve the issue of how to define insurrection for purposes of Section 2383, or apply that definition to the conduct of a criminal defendant in the context of January 6."

During the Section 3 debates, Will Baude, Mike Paulsen, and many others, thought it was perfectly clear what an insurrection was, and that January 6 was clearly an insurrection. Smith did not think the issue was so clear. Seth Barrett Tillman and I also did not take a position on this question.

Second, Smith did not think there was enough authority to distinguish an insurrection from a riot:

The Office recognized why courts described the attack on the Capitol as an "insurrection," but it was also aware of the litigation risk that would be presented by employing this long-dormant statute. As to the first element under Section 2383-proving an "insurrection against the authority of the United States or the laws thereof'-the cases the Office reviewed provided no guidance on what proof would be required to establish an insurrection, or to distinguish an insurrection from a riot. ...

(And there are four more points.)

I was likewise skeptical that it was as obvious as some people said that President Trump engaged in insurrection.  I also thought the matter should be resolved through a federal prosecution (or non-prosecution) instead of piecemeal on a state-by-state basis, as I discussed here.

01/14/2025

Aditya Bamzai: Sanctions and the Emergency Constitution [Updated]
Michael Ramsey

Aditya Bamzai (University of Virginia School of Law) has posted Sanctions and the Emergency Constitution (172 University of Pennsylvania Law Review 1917 (2024)) (38 pages) on SSRN.  Here is the abstract:

The Trading with the Enemy Act of 1917—or the “TWEA”—is the precursor to the modern statutory sanctions framework of the United States. Though significantly amended since its passage—and even replaced in part by a successor statute, the International Emergency Economic Powers Act of 1977—the TWEA’s origins are important both to an understanding of modern sanctions law and to an understanding of the development of American governance. In enacting the TWEA, Congress sought to codify aspects of preexisting prize and trading-with-the-enemy cases. This Article explores the cases that formed the backdrop against which Congress enacted the TWEA, as well as relevant aspects of the TWEA’s drafting history. It examines the cases that emerged in the aftermath of the TWEA’s passage, especially those that confronted Congress’s later decision to make TWEA applicable in times of “national emergency,” as well as in times of “war.”

UPDATE:  At Legal Theory Blog, Larry Solum says "highly recommended."

01/13/2025

Gerard Magliocca: Women's Suffrage and the Reconstruction Amendments
Michael Ramsey

Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted "Right In Theory, Wrong In Practice": Women's Suffrage And The Reconstruction Amendments (60 pages) on SSRN.  Here is the abstract:

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge of Iowa dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. 

The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon. They pioneered the belief that the Fourteenth Amendment gave women equal citizenship and that legal distinctions based on sex can be irrational. They made the first textual and structural arguments for the right to vote. The Loughridge Dissent also defended an interpretive stance that rejected original meaning and tradition in favor of a panoramic construction of the Constitution as "right in theory but wrong in practice." Lastly, recognizing the creative work of the suffragists and their fellow travelers is a vital first step toward filling the between constitutional practice, which cares about women's rights, and constitutional theory, which generally does not. 

The Woodhull Petition and the Loughridge Dissent also advanced textual claims that challenge modern assumptions. For instance, they said that the Fifteenth Amendment affirmatively recognized a "right of citizens of the United States to vote" instead of merely proscribing a certain kind of voting discrimination. Loughridge relied on the Constitution's Preamble as authority for the proposition that women's suffrage could not be denied, instead of treating the "We the People" paragraph as purely ceremonial. Finally, he argued that the text is sometimes best read descriptively or agnostically rather than prescriptively; an approach which could lead to a fresh of view of constitutional issues such as voting rights for ex-felons and the death penalty.

01/12/2025

Jed Shugerman: The Misuse of Ratification-Era Documents by Unitary Executive Theorists
Michael Ramsey

Jed H. Shugerman (Boston University - School of Law) has posted The Misuse of Ratification-Era Documents by Unitary Executive Theorists (forthcoming, Michigan J. L. Reform (2025)) (25 pages) on SSRN.  Here is the abstract:

The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis, a methodological crisis, and perhaps an academic crisis. This symposium essay (on "The Future of Agency Independence") suggests that, given an ostensibly originalist Supreme Court,  the future depends on getting the past right. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the president had a general power of removal -- even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed. 

Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory, claim to have identified four passages from the Ratification debates. Unfortunately, none of these four passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. They have not only misinterpreted historical records from the 1780s and 1790s, but also how they have repeatedly misinterpreted other scholars’ work in the 2020s.

Taking these examples together with the many errors and misinterpretations identified by historians and legal scholars over the past few years, there are at least three big-picture questions:

1. If these sources were the only examples that the unitary executive theorists have identified from the Ratification debates, is it reasonable to conclude that the Ratification debates offered no support for the unitary executive theory of presidential removal, while the Federalist Papers plus Anti-Federalist silence are overwhelming evidence against it?

2. If so, is the originalist case for the unitary executive theory dead?

3. If “originalism” is a serious academic enterprise, are there consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?

(Via Dan Ernst at Legal History Blog.)

I leave it to Professors Prakash and Bamzai to respond on the specifics, though on a quick look at the essay this appears to be a commonplace dispute over the implications of somewhat ambiguous text that forms a fairly small part of a larger historical debate, and thus perhaps does not justify the extravagant rhetoric in the abstract and throughout the essay. 

I have two quick general thoughts:

(1) I follow Justice Scalia in Morrison v. Olson in thinking that the case for presidential removal power arises directly from the Constitution's text vesting the President with "[t]he executive Power."  The history might undermine this reading, if the history is strong enough.  But I think the burden is on those who say that the President's unqualified possession of the executive power does not include the power to control subordinates who exercise the executive power.

(2) I was struck by this comment in Professor Shugerman's paper:

No one disputes the existence of “some” offices held at [the President's] pleasure, but they [Bamzai and Prakash] are arguing for a more universal and absolute interpretation of Article II.

I'm not sure it's true that "no one" disputes a limited version of presidential removal power. But leaving that aside, I take this comment to mean that at least Professor Shugerman doesn't dispute it.  So what is the basis of this limited presidential removal power?  And once it is conceded, we are really just arguing about the scope of removal power, not (as a good bit of the commentary on the anti-removal side seems to suggest) the existence of removal power.

01/11/2025

Jud Campbell: Originalism's Two Tracks [Updated]
Michael Ramsey

Jud Campbell (Stanford Law School) has posted Originalism's Two Tracks (104 B.U. L. Rev. 1435 (2024)) (16 pages) on SSRN.  Here is the abstract:

Originalists constantly invoke history. But they are divided over how to approach the past. Some originalists—let's call them "track one" originalists—view the past in a backward-looking way, using modern criteria to identify earlier constitutional content. Other originalists—let's call them "track two" originalists—try to understand the past on its own terms, using historical criteria to identify earlier constitutional content. Although underappreciated, this division has significant implications for originalist theory and practice. It bears, for instance, on whether originalists should resuscitate long-forgotten features of our constitutional past, such as the embrace of general fundamental rights that were grounded in natural or customary law rather than in constitutional text. By exposing foundational paradigm shifts in American constitutionalism, Jonathan Gienapp's pathbreaking book, Against Constitutional Originalism, underscores the importance of distinguishing between "track one" and "track two" originalism. And how originalists respond to Gienapp's challenge, this Essay argues, should largely depend on which of these two tracks they choose.

As the saying goes, there are two kinds of people, those who believe in binary choices, and those who don't.

UPDATE: At Legal Theory Blog, Larry Solum says "Highly recommended. Download it while it's hot."  But he also has two paragraphs of critical commentary, which are not easily excerpted and are worth a full read. I'm not sure what I think about the first paragraph but I entirely agree with the second (though some originalists I think would not).

01/10/2025

Michael Dorf on Henry Monaghan on Originalism
Michael Ramsey

At  Verdict, Michael Dorf: The Lasting Legacy of Henry Monaghan.  From the introduction: 

Columbia Law Professor Henry P. Monaghan died last week at the age of 90. Although not widely known outside the legal academy, Monaghan was a towering figure within it. ...

In this column, I shall focus on two of Monaghan’s most influential articles with the aim of showing how his work remains at the center of key constitutional controversies. Although I disagree with important elements of much of what Monaghan wrote, I recognize the power of his scholarship. The Supreme Court could (and almost certainly will) do worse than to learn from Monaghan’s work.

From the discussion of the first article:

In various writings and speeches, the late Justice Antonin Scalia defended his preferred mode of constitutional interpretation—originalism—against the charge that it could not account for the longstanding and indispensable practice of stare decisis, which gives effect to precedents even if they are wrongly decided, unless there is a truly compelling reason to overrule them. Scalia conceded that giving precedential effect to nonoriginalist or otherwise wrong (by his lights) decisions was inconsistent with originalism, but, he frequently said, honoring precedent is a departure from any theory of constitutional interpretation.

Yet, on close examination, that answer won’t wash, for reasons that Monaghan set out in a powerful article in the 1988 Columbia Law Review: Stare Decisis and Constitutional Adjudication. Monaghan’s starting point was not far from Scalia’s. He too equated the Constitution’s contemporary meaning with its original meaning. But unlike Scalia, Monaghan recognized that the compelling grounds for giving effect even to wrongly decided precedents could not be so easily cabined. In his conclusion, he suggested that the same sorts of considerations that lead to adherence to decisions that misconstrued or disregarded the constitutional text’s original meaning will sometimes appropriately lead to new decisions that depart from the original understanding. To justify stare decisis is thus to substantially undermine originalism.

And on the second: 

Next, consider Monaghan’s 1981 article in the N.Y.U. Law Review: Our Perfect Constitution. The title was intentionally ironic. Monaghan did not believe the Constitution was perfect. Far from it. His chief contention was that many of his contemporaries, especially in the academy, proceeded on the assumption that it was.

But wait. Did anyone really think the Constitution perfect? After all, the Senate and the Electoral College over-represent rural states. The Constitution exhibits xenophobia in limiting the presidency to natural born citizens. By contrast with many national constitutions of more recent vintage, it does not contain economic, social, and cultural rights, such as housing and education. Surely no serious person believes the Constitution perfect.

Yet Monaghan’s argument was not directed at a straw man. He acknowledged that the targets of his critique did not believe the Constitution to be literally perfect. He used the metaphor of a perfect constitution to describe the following proposition that, he thought, too many of the academic commentators of the era believed: “properly construed, the constitution guarantees against the political order most equality and autonomy values which the commentators think a twentieth century Western liberal democratic government ought to guarantee to its citizens.

More than anything, Our Perfect Constitution was a critique of the enthusiasm for finding rights like contraception and abortion in the Fourteenth Amendment’s Due Process Clause. Monaghan thought that the scholars he was critiquing must have at least tacitly endorsed the perfection proposition because, construed in accordance with original intent (which he regarded as the touchstone), the Constitution would not yield the rights they found in it.

I agree that Professor Monaghan was an enormously important scholar for the originalism movement, both as a proponent and a critic.  He is sometimes left out of the early intellectual history of modern originalism, or at least overshadowed by Robert Bork, Raoul Berger and Justice Scalia.  But as Professor Dorf notes, in particular Our Perfect Constitution was a sharp indictment of living constitutionalism that was bold and unusual for its time.  It was a key text, along with the writings of Bork, Berger and Scalia, in the early originalist movement of the 1980s.  But despite that article Monaghan was never as full-throated an originalist as Bork, Berger and Scalia -- which I think results in his influence being less fully appreciated.

01/09/2025

Paul Gowder on Birthright Citizenship
Michael Ramsey

At the UnPopulist, Paul Gowder (Northwestern): The Bogus Case Against Birthright Citizenship for the Children of Undocumented Immigrants.  From the introduction: 

As Inauguration Day approaches, President-elect Donald Trump’s promise of mass deportation at an unprecedented scale and the infighting within his own movement over H-1B visas have understandably taken center stage. But it’s also worth focusing on what is perhaps his most brazenly unconstitutional proposal of all: ending birthright citizenship, the legal principle that confers automatic citizenship to anyone born on U.S. soil. As far as Trump and the immigration hawks he is bringing into the administration—like his notorious former immigration czar and incoming Homeland Security Advisor Stephen Miller—are concerned, birthright citizenship should not be extended to U.S.-born children of undocumented immigrants.

“We have to end it,” Trump told Meet the Press’ Kristen Welker last month. “We’re the only country that has it,” he erroneously added (dozens of countries—including Canada, Mexico, and Brazil—also recognize birthright citizenship). This wasn’t one of Trump’s extemporaneous flights of rhetorical fancy—in May of 2023, Trump promised to issue an executive order on Day One to end what he called “automatic citizenship for children of illegal aliens.” When Welker asked him point blank if that’s still his plan, Trump responded, “Yeah. Absolutely.”

But if the president-elect believes he will be able to unilaterally undo this policy by executive fiat, he is sorely mistaken: birthright citizenship is clearly established in the U.S. Constitution, which means a presidential order cannot abolish it. ...

There's nothing much new here but it's a good summary of the textualist/originalist case for birthright citizenship and a useful consideration of the leading counterarguments.  (My longer assessment is here.)

The key, though, is that the argument mostly depends on adopting textualist originalism as the guiding approach to constitutional interpretation (and recognizing that textualist originalism does produce determinate results in contested cases).  Otherwise, as co-blogger Mike Rappaport has argued, the nonoriginalist case against birthright citizenship for children of undocumented immigrants is fairly strong.

01/08/2025

Michael McConnell on Pending Religious Liberty Cases
Michael Ramsey

At Volokh Conspiracy, Michael McConnell (guest blogging) on the Supreme Court's Religion Docket

The Supreme Court has a unique opportunity this Term (or next) to hear four cases with major implications for religious liberty. One case is already on the merits docket—Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission, which involves a challenge to Wisconsin's determination that Catholic Charities is not sufficiently religious to qualify for an exemption from the state's unemployment program.

This Friday, the Court will consider adding three more:

  • Apache Stronghold v. United States—in which Native Americans are challenging the federal government's plan to destroy a sacred site by turning it into a copper mine.
  • Mahmoud v. Taylor—in which Muslim parents are challenging a school district's refusal to notify parents or let children opt out when teachers present controversial readings on sex and gender identity.
  • Roman Catholic Diocese of Albany v. Harris—in which religious groups are challenging New York's mandate to cover abortions in their health insurance plans.

(Full disclosure: I participated in amicus briefs in all four cases.)

While these cases may seem unrelated, they converge on two pressing issues that have divided lower courts, distorted the law, and harmed religious liberty. The Court should hear all four cases. Here's why ...

01/06/2025

Originalism-Oriented Books of 2024 [Updated]
Michael Ramsey

To begin an originalist-oriented review of 2024, here are new books of originalism interest published in 2024, as highlighted on the Originalism Blog:

W.B. Allen (ed.), Montesquieu's 'The Spirit of the Laws': A Critical Edition (Anthem Press)

Jack Balkin, Memory and Authority - The Uses of History in Constitutional Interpretation (Yale U. Press)

Randy Barnett, A Life for Liberty - The Making of an American Originalist (Encounter Books)

Curtis Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard U. Press)

Steven Calabresi & Gary Lawson: The Meese Revolution - The Making of a Constitutional Moment (Encounter Books)

Jonathan Gienapp, Against Constitutional Originalism - A Historical Critique (Yale U. Press)

Dennis Hale & Marc Landy, Keeping the Republic - A Defense of American Constitutionalism (U. Press of Kansas)

Alison LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale U. Press)

William Leuchtenburg, Patriot Presidents - From George Washington to John Quincy Adams (Oxford U. Press)

Neil Siegel, The Collective-Action Constitution (Oxford U. Press)

No doubt I have forgotten or overlooked some, so please let me know and I will update accordingly.

UPDATE:  And of course I forgot a big one -- updated to include Jonathan Gienapp's Against Constitutional Originalism - A Historical Critique.  Thanks to Michael L. Smith for the correction.

01/05/2025

David Sloss: The Next Revolution in Constitutional Law
Michael Ramsey

David L. Sloss (Santa Clara University School of Law) has posted People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, forthcoming 2025) (10 pages) on SSRN.  Here is the abstract:

Included here are excerpts from my forthcoming book. The book presents a normative theory of judicial review that builds on John Hart Ely’s theory. Current constitutional doctrine is at odds with core constitutional values. We divide Con Law into rights issues and structural issues. Structural Con Law focuses on the division of power among government actors. That framing omits a key structural feature of the Constitution: the division of power between We the People and our government. Constitutional rights doctrine focuses on negative, individual rights. Accordingly, constitutional doctrine ignores one crucial right: the affirmative, collective right of We the People to exercise control over our government.

My theory divides constitutional issues into three baskets: rights, structure, and democratic self-government. The theory relies on a distinction between strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override.

Based on the distinction among three types of judicial review, and the division of constitutional issues into three baskets, the book defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. For example, courts should apply strong judicial review to ban partisan gerrymandering. The goal should be to correct defects in the electoral process so that elected legislators represent the entire political community, rather than serving factional interests.

Second, courts should apply weak judicial review for most individual rights claims. Courts can protect individual rights by applying federal statutes and international human rights treaties—instead of applying the Constitution—as the primary source of protection for individual rights. In this way, courts can provide robust protection for rights while still preserving an option for legislative override if Congress disagrees with the Court’s resolution of a particular issue. The option of legislative override is essential to ensure that our elected representatives—not unelected, unaccountable judges—have the last word on contested rights issues.

Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. The Court’s modern federalism jurisprudence does not actually promote the ostensible goal of protecting state autonomy. Instead, the Court’s federalism doctrine transfers federal lawmaking authority from Congress to the Supreme Court, in violation of separation-of-powers principles. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment, as exemplified by McDonald and Bruen.

Clearly, the current Supreme Court will not be receptive to these arguments. The final chapter presents a roadmap for revolutionary change in which We the People mobilize to transform our government, and Congress and the Supreme Court collaborate to restore the vitality of democratic self-government.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  A much needed updating of Ely's classic work."

01/03/2025

Putting an End to Lame Duck Actions
Mike Rappaport

The Biden Administration has been engaged in lame duck actions that are problematic because they would not have been done prior to the election.  They are made worse by the fact that the President appears to have serious dementia, raising the question as to who is really taking these actions. 

For many years now, I have criticized such actions and have argued for reforms.  Here are some posts on the subject: 

Lame Duck Lawmaking and Rulemaking (2016)

Let's Pass a Constitutional Amendment Prohibiting Lameduck Pardons (2017)

The Language of the Lame Duck Pardon Amendment (2017)

From the first of these posts: 

The sad fact about this matter is that it could be reformed.  The best way to reform Congress’s lame duck actions is to pass a constitutional amendment requiring a 2/3 supermajority of each house to take an action in the period between the election and the new Congress.  In this way, Congress could still take important actions that are supported by a consensus.  Moreover, the Congress could still take all of the preliminary steps to a final decision, such as holding hearings, which would allow actions that require speed to be taken up for a final vote by the new Congress.  Assuming that a constitutional amendment were not enacted, each house of Congress could pass a rule that required the supermajority (although that rule could be repealed by a simple majority).

The lame duck agency lawmaking would even be easier to reform.  Congress could simply pass a law providing that all rules that are promulgated during the lame duck period should not take effect until a certain period of time after the new President assumes office.  In this way, the new administration would have time to eliminate the new regulation without having to go through the notice and comment process.

12/31/2024

Elias Neibart: Teleology as an Originalist Tool
Michael Ramsey

Recently published, in the New York University Journal of Law and Liberty (vol. 18, 2024), Elias Neibart: Teleology as an Originalist Tool.  Here is the abstract:

To understand what something is, we have to first understand its ultimate end.  That’s a simple principle.  And it’s one we intuitively accept in our everyday life.  When we’re building a piece of furniture, we don’t just read the instructions—we first peek at the box to figure out how the piece of furniture should look when it’s completed.  We do that because we know that by looking at the ultimate end of our task, we will better understand the discrete instructions and steps before us.  This practice—of identifying something’s ends to better understand its essence—is not new. And it has a name: teleology.

Teleology may offer something to those trying to uncover the original meaning of the United States Constitution.  Just as seeing the completed piece of furniture helps us understand the building instructions, pinpointing the ends of the Constitution might help us interpret its sparse text.

So, this Article makes a modest argument: Teleology has played and, perhaps, could still play a role in our interpretation of the Constitution.  In other words, historically, when it came to the Constitution, teleology was in the mix of interpretive tools.  And, today, it could similarly factor in as one way—of many—to help us interpret the Constitution.  This Article, therefore, makes two narrow arguments, one historical and the other theoretical.

As a historical matter, teleology has roots in American constitutional history.  When the framers were drafting the Constitution and later interpreting it, they invoked teleology.  In fact, its use has persisted, being employed just a few terms ago at the Supreme Court. 

As a theoretical matter, teleology might still be able to serve as an originalist tool.  Indeed, its use is consistent with originalist theory.  For an Original Methods Originalist, teleology can be understood as an original interpretive rule that was employed by the ratifying public as they read the Constitution.  For Public Meaning Originalists, teleology might just constitute another type of contextual enrichment.  Using teleology is also consistent with how we communicate in everyday life; we often consider the original ends of a thing when trying to understand its essence.  At bottom, then, identifying the Constitution’s original teloi may help interpreters better enter the minds of the ratifying public and understand the text just as they did.  

In these respects, teleology could advance—not undermine—the goals of modern-day originalism.  At first glance, one might think that originalists would or should reject its invocation.  Teleology, like purpose, might strike an originalist as too indeterminate.  But originalists are committed, by their own principles, to think about teleology, too.  Doing so may help interpreters better honor the original meaning of the Constitution.