09/15/2019

Timothy Sandefur on the Anti-Slavery Constitution
Michael Ramsey

At NRO, Timothy Sandefur: The Anti-Slavery Constitution.  From the beginning:

It’s become an article of faith on the left that America was founded by racists who wrote the Constitution in part to preserve slavery. Historian David Waldstreicher calls it “a proslavery constitution, in intention and effect.” Yale law professor Akhil Amar labels the Constitution “pro-slavery.” Author Ibram Kendi claims that the Framers “embraced Black inferiority” and “enshrined the power of slaveholders and racist ideas in the nation’s founding document.” And the New York Times’ “1619 Project” purports to “reframe” American history by positing not only that the United States was founded “as a slavocracy” but that “nearly everything that has truly made America exceptional” is the result of “slavery — and the anti-black racism it required.”

There’s nothing new about these assertions. The idea that America is premised on white supremacy has been a commonplace of political debate ever since it was proffered by pro-slavery intellectuals in the 1830s. What’s astonishing is the degree to which it has been adopted by today’s progressives. In his 1857 Dred Scott ruling, Chief Justice Roger Taney claimed that when the Founding Fathers said “all men are created equal,” they really meant only white men. Today, many left-wing journalists, lawyers, politicians, and academics would hasten to agree. 

But the reality is more complex and, in some ways, more ennobling. Far from being a given at the time, the constitutional status of slavery was the subject of intense dispute in the decades before the Civil War. One side of that debate argued with much plausibility that slavery was already unconstitutional, decades before adoption of the 13th, 14th, and 15th Amendments. 

This is unjust, and it gives a distorted picture of the legal history of slavery. ...

(Via Randy Barnett at Volokh Conspiracy, who has more).

09/14/2019

Josh Blackman & Ilya Shapiro on the DACA Litigation
Michael Ramsey

At the SCOTUSBlog symposium on the DACA litigation (Department of Homeland Security v. Regents of the University of California), Josh Blackman (South Texas) and Ilya Shapiro (Cato Institute): Don’t judge a brief by its cover: DACA is a good policy that Congress has not authorized.  From the introduction:

We recently filed an amicus brief “in support of DACA as a matter of policy but [the government] as a matter of law.” The caption caused quite a kerfuffle on social media. “Is that a thing?” they tweeted. Yes, it is a thing. And the court would be well served to receive more briefs that expressly acknowledge the distinction between law and policy. Most Supreme Court amicus briefs are predictable. Groups that favor outcome A argue that the law supports outcome A. Groups that favor outcome B argue that the law supports outcome B. Occasionally, groups file cross-ideological briefs in which people of opposite political stripes unite to support a specific cause. But even these briefs fall into the same pattern: Regardless of ostensible ideological labels, all the groups on the brief support the policy outcome that the brief’s legal theory advances.

In Department of Homeland Security v. Regents of the University of California, the Cato Institute and Professor Jeremy Rabkin took a different approach. We affirmatively support as a matter of policy normalizing the immigration status of individuals who were brought to this country as children and have no criminal records. (See Cato’s immigration work if you have any doubts.) Moreover, as a matter of first principle, people shouldn’t need government permission to work. But the president cannot unilaterally make such a fundamental change to our immigration policy — not even when Congress refuses to act. Indeed, our deep concerns about the separation of powers and abuse of executive power motivated us to file this brief. Presidents with different priorities come and go. The principle that Congress cannot delegate its legislative power to the president, such that he alone can fix the law, remains.

And in conclusion:

Returning to our theme of the difference between law and policy, we often offer similar advice to law students: Ask your professors to give examples of policies they like but think are not constitutional, or those they don’t like but think are. That question poses a real test of intellectual integrity. If your policy preferences and legal theories always align, you should reconsider the latter. Some policies we dislike are, regrettably, lawful – as the late Justice Antonin Scalia would say, “stupid, but constitutional.” And other policies we favor are, regrettably, unlawful. DACA falls into the latter category.

The president simply can’t make the requisite legal changes by himself to give this relief to the Dreamers. As one of us (Ilya) put it in the Washington Post, such unlawful executive actions both set back prospects for long-term reform and, more importantly for a Supreme Court case, weaken the rule of law. The justices should reverse the lower courts and restore the immigration debate to the political process — exactly where it belongs.

For an opposing view, from the same symposium, Dayna Zolle and Brianne Gorod: The DACA cases may be the next big test for the Roberts Court.  It concludes: 

In sum, DACA did what Congress legally authorized the executive to do: temporarily defer the removal of qualified “young people who were brought to this country as children and know only this country as home,” so that immigration officers could instead focus their enforcement efforts and limited resources on higher-priority cases. DACA is therefore lawful — just like the various deferred-action programs that preceded it. Given that, Trump cannot now claim that he is compelled to end the program on the ground that it suffers from “legal and constitutional defects.” As the U.S. Court of Appeals for the 9th Circuit recognized, “where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”

Trump may be hoping that the Supreme Court will give him the victory on DACA that the lower courts in these cases have denied him, but there’s good reason to think that it won’t. And that would be a good thing not only for DACA recipients, but also for the rule of law and the country as a whole.

I'm inclined to think DACA is constitutional (a bit tentatively, and I admit that I may have posts leaning both directions over the past few years).  But it seems to me that that should not be the question in the present litigation.  The President has the executive power to decide constitutional questions independently from the courts.  When courts find actions unconstitutional, that is the last word (at least as to parties before the court).  But if courts find actions constitutional, the President is entitled to disagree and act on that view.  This proposition dates at least to Andrew Jackson's rejection of the Bank of the United States (the Court having previously upheld the Bank in McCulloch v. Maryland), and I would say it's implicit in the idea of judicial review set out in Marbury.

Thus I think the question in the DACA litigation at most is whether the President reasonably believed the program was unconstitutional.

09/13/2019

Larry Alexander: Goldsworthy on Interpretation of Statutes and Constitutions
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Goldsworthy on Interpretation of Statutes and Constitutions: Public Meaning, Intended Meaning and the Bogey of Aggregation (Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy, 2019) (9 pages) on SSRN.  Here is the abstract: 

This chapter is for a festschrift in honor of Jeffrey Goldsworthy. Much of Goldworthy’s scholarship has been devoted to legal interpretation. I show the similarity and the difference between our views of legal interpretation.

Professor Goldsworthy, of Monash University in Melbourne, Australia, is perhaps the world's most prominent non-U.S. originalist scholar.

RELATED: Also recently posted by Professor Alexander: Appreciation and Responses (Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (H. Hurd, ed. 2018)) (79 pages).  Here is the abstract:

In this concluding chapter in a festschrift volume in my honor, I respond to the twenty-three commentators on my work. The topics range widely – various issues in criminal law, constitutional law, and moral theory. The reader will judge how well I deal with the critiques of these commentators.

Thee is quite a bit of high-level originalist discussion in the contributions to the volume and in the response.

09/12/2019

Colfax on the Rights of U.S. Citizens
Andrew Hyman

Schuyler Colfax of Indiana was speaker of the U.S. House of Representatives from 1863 to 1869, and later vice president of the U.S. from 1869 to 1873 during the administration of Ulysses S. Grant.  On August 7, 1866, less than two months after the Fourteenth Amendment had been sent to the states for ratification, Colfax gave a speech in Indiana supporting ratification of the Amendment.  The following passage of his speech is often quoted by people who think the Privileges or Immunities Clause goes beyond expansion of protection for rights that were already mentioned in the Constitution:

We passed a bill on the ninth of April last, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease and sell property, and be subject to like punishments. That is the last law upon the subject.

By the “Civil Rights Bill” Colfax meant the Civil Rights Act of 1866 (CRA).  I would like to explain why I don’t think this excerpt from Colfax really suggests that the Privileges or Immunities Clause goes beyond protecting pre-existing constitutional rights from infringement by the states.

Colfax was not suggesting that the CRA protected rights absolutely, and instead his comments later in the same speech confirm that the CRA only required as much protection as white citizens got: “I want this great doctrine, that there shall be equality before the law, placed where it can not be repealed, that no state shall deny to any person the equal protection of life, liberty and civil rights.”  The plain text of the CRA confirms that it was all about equality, and newspapers in 1866 confirm that “the Civil Rights Bill is solely to provide the equal protection of law.”

Even though Colfax was referring to equality rights listed by the CRA, he still identified those with “the rights of a citizen of the United States.”  Those equality rights would go beyond the type of rights already protected by the text of the Constitution, while also leaving out many absolute rights already protected by the text of the Constitution.  Did Colfax really mean to do that?  I doubt it.

Colfax said the CRA “declares what the rights of a citizen of the United States are” but scholars who now rely upon that statement usually say Colfax was setting a floor and no ceiling for the meaning of the Privileges or Immunities Clause.  But one could just as implausibly infer a ceiling and no floor, from what Colfax said in this 1866 speech.  More likely than talking about floors or ceilings, he was probably just talking about what the rights of a citizen of the United States are under the CRA.  After all, the Constitution in 1866 already included many absolute rights of citizens that were not within the scope of the CRA’s equality requirements, and some of those constitutional rights were even applicable against both the federal government and the states.  Surely Colfax understood that.

Consider how narrow the CRA was by today's standards, even aside from its limitation to equality rights.  Supporters of the CRA argued that the exclusio unius rule of interpretation applied to the CRA’s listing of rights, so that many rights would not be within the CRA’s scope even if that scope extended to absolutely protecting the listed rights.  For example, the rights to vote and hold office were not in the CRA given expressio unius, and also given the notion shared by many congressmen that “civil rights” did not include “political rights.”  And, the Bill of Rights was excluded from the CRA as well, given that it contained absolute rights instead of equality rights.  Regarding the constitutional right of eligible citizens to seek and hold office, that right, like the Bill of Rights at that time, was only applicable against the federal government, but they were all rights of U.S. citizens even though the Fourteenth Amendment had not yet been ratified.

So, when Colfax said that the CRA declares what the “rights of a citizen of the United States” are, he probably meant in context the rights of a citizen of the United States that Congress had decided to recognize and protect, not other rights even if they already were in the Constitution.  The CRA did not necessarily recognize rights of U.S. citizens that were already in the Constitution, and conversely the Privileges or Immunities Clause did not necessarily recognize rights of U.S. citizens that were already in the CRA.

09/11/2019

Executive Power and the DACA Case
Michael Ramsey

Kevin Fandl (Temple University - Fox School of Business and Management) has posted Presidential Power to Protect Dreamers: Abusive or Proper? (Yale Law & Policy Review, Vol. 36, No. 1, 2018) (17 pages) on SSRN.  Here is the abstract:

Many young undocumented immigrants brought to the United States as children, affectionately known as “Dreamers,” enjoy substantial protection from deportation under the Deferred Action for Childhood Arrivals (DACA) program. President Trump’s administration is attempting to withdraw this protection, purportedly in an effort to promote the rule of law by limiting executive overreach into matters of congressional concern. This Essay argues that the attempted rescission of DACA is not only out of step with broadly held American values, but premised on a flawed vision of the relationship between the legislative and executive branches. Our constitutional tradition wisely grants the President flexibility to make social policy through enforcement discretion, within the broad legal contours drawn by Congress. DACA is a legitimate exercise of that presidential power.

Maybe.  I want to focus on the second-to-last sentence of the abstract: "Our constitutional tradition wisely grants the President flexibility to make social policy through enforcement discretion, within the broad legal contours drawn by Congress."  I think that is probably right.  It's part of the checking function of separation of powers: the legislative branch makes law, but it depends on an independent branch, the executive, to enforce the law.  The executive cannot refuse to enforce the law altogether (rather, the executive must take care that it is faithfully executed) but the executive can modify a law's harsher or undesirable aspects through enforcement discretion.  DACA (or at least some aspects of it) can be seen as modifying a harsh aspect of the immigration laws.

However: this view of executive enforcement discretion is contrary to a competing view of the President's "faithful execution" obligation, as expressed most forcefully in the recent article by Andrew Kent, Ethan Leib and Jed Shugerman in the Harvard Law Review: Faithful Execution and Article II.  As I understand the paper, a central proposition is that the President may not use policy disagreement as a ground for nonenforcement (although the President might choose not to enforce for practical reasons such as resource constraints).  On this view, DACA cannot be justified as constitutional enforcement discretion based on social policy (although it might still be justified as an exercise of power delegated by the statute).

And a further thought, which really isn't addressed in the paper despite its strong conclusions: if DACA is an exercise of "mak[ing] social policy through enforcement discretion," the President should not be limited in his ability to reverse it.  An exercise of presidential discretion is, by definition, discretionary.  The current President's view -- that the DACA program goes beyond the President's duty of faithful execution -- may be incorrect, but it is at least plausible (as the Kent et al. article suggests).  And a core check on a President's power to "make social policy through enforcement discretion" is the electorate's power to replace him with a President who sees the policy in a different light.

09/10/2019

A Response to Professor Ramsey on the Paradox of Originalism
David Weisberg

I appreciate Prof. Michael Ramsey’s thoughts responding to my note.  My note is a glimpse of a much deeper critique of original-public-meaning originalism, which can be found here and here on SSRN.
 
Prof. Ramsey agrees “as a theoretical matter” with what I call the Paradox of Originalism:

If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

He also seems to accept that ignoring the Paradox plunges the conscientious originalist into an infinite regress.  He refers to “mostly solving” the infinite regress problem; this seems to acknowledge a genuine problem.  These are two important points of agreement.

There are, however, nits to pick.  I’ll downplay smaller nits—I continue to challenge anyone to identify one word in the Constitution that had, per the definitions and etymologies in the current Oxford English Dictionary, a definition that was valid in 1788 but is no longer valid today—and go to the biggest. 

Prof. Ramsey asserts: “[O]riginalism is (or should be) based on a rebuttable presumption that the words [in the Constitution] have not changed meanings (and dictionaries can be used to confirm this).  Justice Scalia approached the project in exactly this way.” (Emphasis original, brackets added.)

I certainly agree that originalism “should be” based on that presumption—that follows from the Paradox.  But, was Scalia’s originalism based on that presumption?  I vote ‘no’, for three reasons.        

First, I cannot find in Scalia’s speeches, writings, interviews or opinions any reference to anything resembling the Paradox, or to the infinite regress it foreshadows.  Given Scalia’s decades-long interest in originalism, he surely would have noted this danger, if he had been aware of it.  I believe Scalia made no such reference because the Paradox simply never occurred to him. 

Secondly, Scalia called all the permutations of his theory ‘originalism’.  To me, it’s simply bizarre that a theory that presumes words do not have original meanings that differ from current meanings should be called ‘originalism’.  Why call it ‘originalism’, if not to indicate that original meanings probably differ from, and thus are more important than, current meanings?  If original meanings are presumed to be identical to current meanings, a better name would be ‘identicalism’ (see, my paper “Originalism is Dead…Long Live Identicalism!”).

Thirdly, here is a tiny sampling of what Scalia wrote about the underpinnings of originalism:

“[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.”  (A MATTER OF INTERPRETATION (1997), p. 38, emphasis in original.)

And this:

“[O]riginalism is an age-old idea in our jurisprudence[.]   But it applies mostly to older documents that continue in effect: Those are the ones whose operative terms are most likely to have undergone semantic shift.” (READING LAW (2012), co-authored with B.A. Garner, p. 78.)

Why posit a “Great Divide” between original and current meaning, if one presumes that the two meanings are identical

And if terms in older documents, including the Constitution, “are most likely to have undergone semantic shift,” and if “semantic shift” has any relationship whatsoever to meanings, wouldn’t the careful originalist be compelled to presume (rebuttably) that original meaning differs from current meaning, and not the opposite?  I think so.

In contrast, Prof. Ramsey thinks Scalia presumed that original meanings are identical to current meanings.  He highlights instances in Heller and Morrison where Scalia concluded that particular words had original meanings that are identical to their current meanings.  But this is unpersuasive, because a rebuttable presumption can always be rebutted. 

Prof. Ramsey observes that Scalia compared definitions from old dictionaries with definitions from new ones.  This, too, is unpersuasive.  Whichever presumption one entertains, one relies on both old and new dictionaries.  A constitutional textualist (like myself) regularly consults, albeit indirectly, old dictionaries when he or she reviews etymological entries in the O.E.D. to verify that a particular definition pre-dates the effective date of some word or phrase in the Constitution. 

In sum, I don’t believe Scalia presumed that original meanings are identical to current meanings.  I believe he presumed the opposite and never had any awareness of the Paradox. 

Prof. Ramsey correctly notes that I draw a distinction between words and phrases.  But the most important justification for that distinction is irrelevant here.  Originalists assert (correctly) that ordinarily we look for public meanings, not secret meanings.  But certain phrases (not words) in the original Constitution—specifically, those phrases concerning the institution of slavery—do have coded, secret meanings.  That fact is irrelevant to this discussion.

Prof. Ramsey cites what Justice Scalia called his “legacy opinion,” D.C. vHeller, as exemplifying how originalism should work.  For me, this is deeply ironic, because I’ve argued that Heller is both logically incoherent and also reaches the wrong result.  The incoherence is blatant.  At the beginning of the section headed “Meaning of the Operative Clause,” Justice Scalia writes: “[I]t has always been widely understood that the Second Amendment…codified a pre-existing right.” (554U.S.592)  The emphasis is all Scalia’s.  Six pages later, we find: “Does the preface fit with an operative clause that creates an individual right to keep and bear arms?  It fits perfectly[.]”  So, the right referred to in the operative clause morphs from one that pre-exists (with emphasis) the amendment, into one the amendment “creates”.  Interesting.  (How and why Heller reaches the wrong result is explained here.)

One last thought.  The advent of corpus linguistics will, I predict, provide a true test of contemporary originalism.  Corpus linguistics analyzes millions of foundation-era pages, only a tiny fraction of which come from dictionaries, with a view towards clarifying original meanings in the Constitution.  The results can be far removed from current meanings.  E.g., a recent note in this blog, to which I responded, suggested that, based on a corpus linguistics analysis, the Second Amendment protects only the right of the people to serve in a well-regulated State militia, with no direct reference to “arms” or any “right of the people to keep and bear arms”.  If one presumes that original meanings differ from current meanings, such a result might not be surprising.  Nevertheless, I think every serious student of the Constitution should ask: If that’s what the framers meant, why isn’t that what they wrote?  As the corpus linguistics movement proceeds to churn out ‘analyses’ that stray ever farther from current meanings, will today’s originalists ask that question?

Eric Segall on Barnett and Bernick and the Spirit of the Constitution
Michael Ramsey

At Dorf on Law, Eric Segall: A Unified Theory of Originalism and Living Constitutionalism.  From the introduction: 

A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis is succinctly stated in the first paragraph of their article:

Constitutional originalism is defined by a commitment to the original meaning of the letter of the constitutional text. Our thesis is that originalism must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural design. We term this spirit-centered implementation 'good-faith constitutional construction.'

There is much to commend in this attempt to describe how judges should decide hard constitutional cases. In fact, absent a theory of judicial review that advocates for a clear error, strongly deferential approach (my personal preference), Barnett and Bernick have articulated a powerful guide for judges to use to decide whether laws violate the Constitution.  But like most originalist scholarship that does not include strong deference, what Barnett and Bernick are suggesting is indistinguishable from how most so-called living constitutionalists think judges should decide cases. They could have titled their piece "A Unified Theory of Judicial Review for Originalists and Living Constitutionalists," and they would not have had to change a single word.

And from later on:

In this article, [Barnett] and Bernick now contend that "construction not only can but must be originalist." The authors claim that "[g]ood-faith constitutional construction seeks to implement the Constitution faithfully by ascertaining and adhering to the original functions of the constitutional text—its 'spirit.'”

...

How should judges ascertain the Constitution's "spirit" when the text itself does not resolve the problem at issue? The answer is that because the Constitution "was the product of deliberate human design rather than uncoordinated human action . . .we can attempt to reverse engineer the design from close examination of its workings. But we can also seek out the explanations left behind by its designers. Even if these explanations were not published, they would still help us to understand the functions of each constituent part."

Quoting, of all people the person who first coined and then rejected the term "originalism," Professor Paul Brest, Barnett and Bernick say that even "Brest acknowledged that the 'general purposes' of constitutional provisions are ascertainable and that it is 'a perfectly sensible strategy of constitutional decisionmaking' to seek to adhere to them."  Barnett and Bernick approve of Brest's belief that a “moderate intentionalist applies a provision consistent with the adopters’ intent at a relatively high level of generality, consistent with what is sometimes called the purpose of the provision." The moderate intentionalist “'attempts to understand what the adopters’ purposes might plausibly have been, an aim far more readily achieved than a precise understanding of the adopters’ intentions.'”

So here we are. A judge engaged in good-faith constitutional construction should attempt to discover the general purposes of the Constitution, sometimes at a "relatively high" level of generality, and then apply those purposes or spirit to the case at hand. When doing so, we don't ask how the framers or ratifiers would have answered questions they could not have anticipated, like the constitutionality of bans on violent video games, nor are judges bound by the framers' specific expected applications of vague text to questions they did anticipate, like whether women have the right to be lawyers, if those conclusions were based on what judges today think are mistakes of fact.

It should now be obvious to the reader that there is a lot to commend in this "unified originalist theory" but that this approach also leaves judges enormous discretion to decide hard cases, and more importantly, is exactly how the Supreme Court has been deciding cases for centuries. In other words, non-originalists would agree with this approach, though they may call it something different, like pluralistic or living constitutionalism, because everyone agrees the general purposes of the Constitution should be applied faithfully by judges, but modern judges may have new facts available to them which justify judges not abiding by the specific applications of the principles adopted by the framers. Everyone, that is, except folks like Bork, Berger, and myself, who advocate(d) for an extremely limited and deferential system of judicial review.

09/09/2019

Justice Gorsuch is Everywhere
Michael Ramsey

So it seems.  Does he have a book coming out?  

Here are few of his appearances:

Time Magazine: Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution (book excerpt).  From the introduction:

Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples. As originally understood, the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser. Take another example. As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.

Wall Street Journal, Weekend Interview: The High Court’s Rocky Mountain Originalist -- Justice Neil Gorsuch discusses his new book, the dangers of the administrative state, and why the Constitution’s meaning never changes. From the beginning:

Justice Neil Gorsuch has two rules for his law clerks. “Rule No. 1: Don’t make stuff up,” he tells them. “Rule No. 2: When people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine.”

He is sitting in a wood-and-leather chair in his Supreme Court chambers. He’s discussing originalism, the idea that the Constitution’s meaning is the same in 2019 as in 1788. “Our Founders deliberately chose a written constitution,” he says. “Its writtenness was important to them. They rejected the English tradition of an unwritten constitution, because they wanted to fix certain things.”

To treat the Constitution as a “living” document, he says, is to regard it “more or less as a relic,” something kept “in the back of the church behind a screen, and you look at it as you walk by, and you move on.” But that’s “not what ‘We the People’ agreed to,” he adds. “We didn’t say five judges—or nine, or whatever—sitting in Washington get to govern 330 million people. Who would write such a thing down? Who would agree to that? That’s not a republic. I don’t know what that is, but it’s not a republic. Not a democracy.”

In his new book, “A Republic, if You Can Keep It”—a mix of speeches, reflections and excerpts from his judicial opinions, to be published Sept. 10—Justice Gorsuch makes the case, he says, that “we should all be originalists.” Consider the alternative: “What happens when judges make it up?” he asks. “Strange things happen. You start losing rights, first of all, that are in the Constitution.”

Also on Fox News: Neil Gorsuch opens up on journey to Supreme Court in Fox News special.

And here is the book: Neil Gorsuch, A Republic, If You Can Keep It (Crown Forum, Sept. 10, 2019).

Justice Neil Gorsuch reflects on his journey to the Supreme Court, the role of the judge under our Constitution, and the vital responsibility of each American to keep our republic strong.
 
As Benjamin Franklin left the Constitutional Convention, he was reportedly asked what kind of government the founders would propose. He replied, “A republic, if you can keep it.” In this book, Justice Neil Gorsuch shares personal reflections, speeches, and essays that focus on the remarkable gift the framers left us in the Constitution.
 
Justice Gorsuch draws on his thirty-year career as a lawyer, teacher, judge, and justice to explore essential aspects our Constitution, its separation of powers, and the liberties it is designed to protect. He discusses the role of the judge in our constitutional order, and why he believes that originalism and textualism are the surest guides to interpreting our nation’s founding documents and protecting our freedoms. He explains, too, the importance of affordable access to the courts in realizing the promise of equal justice under law—while highlighting some of the challenges we face on this front today.
 
Along the way, Justice Gorsuch reveals some of the events that have shaped his life and outlook, from his upbringing in Colorado to his Supreme Court confirmation process. And he emphasizes the pivotal roles of civic education, civil discourse, and mutual respect in maintaining a healthy republic.
 
A Republic, If You Can Keep It offers compelling insights into Justice Gorsuch’s faith in America and its founding documents, his thoughts on our Constitution’s design and the judge’s place within it, and his beliefs about the responsibility each of us shares to sustain our distinctive republic of, by, and for “We the People.”

09/08/2019

Second Amendment Originalism and Mental Illness
Michael Ramsey

From Michael Buschbacher (Sidley): 

I wanted to send you a quick note about a Second Amendment case that I and a few of my colleagues recently picked up in connection with Sidley’s Supreme Court Clinic at Northwestern. The case is Beers v. Attorney General, No. 17-3010 (3d Cir.). It presents the same issue as Tyler v. Hillsdale County Sheriff from a few years ago in the Sixth Circuit: can the government permanently strip a mentally healthy and law abiding citizen of his second amendment rights solely because of a prior involuntary commitment? The Sixth Circuit said “no,” but the Third recently said “yes,” applying a misguided form of something like original methods originalism. As it explained things, while there were no founding-era laws disarming people because of mental illness, the founding generation “saw a danger in providing mentally ill individuals the right to possess guns,” regardless of the “[p]assage of time and evidence of rehabilitation.” As we explain in [our] petition for rehearing/rehearing en banc, however, this is demonstrably wrong. Blackstone, for instance, says that “the law always imagines, that the[] accidental misfortunes [that caused the lunacy] may be removed” and the person’s rights restored. 1 William Blackstone, Commentaries *304-05.

The Third Circuit opinion in Beers is here.  From the historical discussion (footnotes omitted): 

Even though he claims to be rehabilitated, Beers cannot distinguish himself from the historically-barred class of mentally ill individuals who were excluded from Second Amendment protection because of the danger they had posed to themselves and to others.

...

Traditionally, individuals who were considered dangerous to the public or to themselves were outside of the scope of Second Amendment protection. Although laws specifically excluding the mentally ill from firearm possession did not begin appearing until later, such laws were not necessary during the eighteenth century. At that time, judicial officials were authorized to “lock up” so-called “lunatics” or other individuals with dangerous mental impairments. Thus, courts analyzing the traditional justifications for disarming the mentally ill have noted that “if taking away a lunatic’s liberty was permissible, then we should also find the ‘lesser intrusion’ of taking his or her firearms was also permissible.”

The historical record cited in Binderup supports this conclusion. In Binderup, we turned to the precursor to the
Second Amendment, the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents. That Address states that citizens did not have a right to bear arms if they had committed a crime. The Address goes on to note that citizens were excluded from the right to bear arms if they were a “real danger of public injury.” We can therefore ascertain that the traditional justification for disarming mentally ill individuals was that they were considered dangerous to themselves and/or to the public at large.

In a footnote, the court acknowledged the split with the Sixth Circuit in Tyler and added: "For the reasons we have stated above, we disagree that there is an absence of historical evidence that mentally ill individuals, who were considered a danger to themselves or to others, were banned from possessing guns."

The Sidley brief is here.  In part it argues:

The cited history [in the opinion], however, showed only that those who were dangerously mentally ill could be “locked up” and, a fortiori, could also be disarmed at the time of the founding. Op.16 (citing Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1377 (2009) (quoting on Henry Care, English Liberties, or the Free-born Subject’s Inheritance 329 (6th ed. 1774))). This does not support the panel’s “deduction” that such deprivations could be permanent, regardless of recovery. Op.16 n.43. Our common law tradition has “long recognized that mental illness is not a permanent condition.” Tyler, 837 F.3d at 710 (Sutton, J., concurring). Thus, as one leading founding-era legal treatise explained, “[a] lunatic is never to be looked upon as irrecoverable.” Anthony Highmore, A Treatise on the Law of Idiocy and Lunacy 73 (1807). And “the law always imagines, that the[] accidental misfortunes [that caused the lunacy] may be removed” and the person’s rights restored. 1 William Blackstone, Commentaries *304-05. Even the sole historical source on mental illness that the panel relied upon explains—on the same page that the panel looked to—that “[a lunatic] is to be kept … locked up only so long as such lunacy or disorder shall continue, and no longer.” Care, supra, at 329.

Interesting case (and thanks for the pointer).  Maybe a Supreme Court candidate, if the Court is looking for some incremental Second Amendment cases.

09/07/2019

A Reply to David Weisberg on Second Amendment Originalism
Neal Goldfarb

I thank David Weisberg for his comments two weeks ago on my amicus brief in New York State Rifle & Pistol Assn. v. City of New York. I’d like to take this opportunity to respond to what he says about my brief and the analysis that it’s based on. My response will deal with only a small part of Mr. Weisberg’s comments, because while his post was prompted by my brief, for the most part it discusses issues that are only tangentially related to what I’ve written.

Mr. Weisberg sums up my interpretation of the Second Amendment’s main clause as being something like, “The right of the people to serve in the well regulated Militia of a State, shall not be infringed.” I’ll accept that for now, although I haven’t said anything about the meaning of well regulated or militia. But those issues aren’t what I want to talk about here.

Mr. Weisberg asks, rhetorically, “If that is what the framers meant, why isn’t that what they wrote?” My answer is that that is what they wrote (although the “well regulated” part wasn’t stated explicitly in the main clause) but they wrote it using a phrase (bear arms) that is no longer understood to mean what it was understood to mean in the 18th century.

From the vantage point of 2019, it seems natural to assume that the basic meaning of bear arms was ‘carry weapons’ and that the idiomatic military sense of the phrase was a figurative extension of that literal meaning. That’s certainly what I thought before I started looking at the corpus data. But the corpus data and other evidence provides powerful reasons to think that that assumption is unfounded. I discussed some of those reasons in my brief:

bear.  The data shows that although bear was some­­times used to mean ‘car­ry,’ it was not generally syn­­on­y­mous with carry, and the ways that it was used—i.e., the meanings that it was used to convey—were quite different from carry’s. While carry was often used to denote the physical carrying of tangible objects (e.g., carry provisionscarry goodscarry baggagecarry sup­plies), bear was seldom used that way.

In fact, in a book published in 2014, six years after Heller was decided, the chief etymologist for the OED reported on a study in which, among other things, he tried to determine when carry took over from bear as the verb generally used to mean­ ‘carry.’ He concluded that “in the ancestor of modern standard En­g­lish,” it was “very likely that carry was the basic word in this meaning by the seventeenth century (at least).” Thus, the transition from bear to carry ap­pears have been complete long before the Second Amend­ment was proposed and ratified. That fact alone casts serious doubt on Heller’s conclusion that the “natural meaning” of bear arms was essentially a var­iation on ‘carry weapons.’

arms.   The definitions for arms did not present the same problem of changed meanings as did those for bear, but they didn’t adequately reflect the range of the word’s usage and they gave no indication of the relative frequency with which varying uses occurred.

Samuel Johnson’s dictionary listed four potentially relevant senses for arms (of which Heller discussed only the first)….

But Johnson included no idiomatic phrases using arms, despite the fact that there existed many phrases in which arms was used figuratively, in a variety of military-related meanings. Sixty such phrases can be found in the corpus data….

Moreover, idiomatic uses such as these accounted for about 54% of the corpus data, overall.…

This information enables one to view bear arms in a new light, especially when considered together with the fact that bear was not ordinarily used to mean ‘carry.’ What it suggests is that even before looking at the corpus data for bear arms, there is reason to think that the phrase was ordinarily used in an idiomatic rather than literal sense; after all, bear didn’t generally mean ‘carry’ and arms was very often used figuratively rather than literally. But the Court’s starting point in Heller was the complete opposite of that.

bear arms.   The corpus data on bear arms was fully con­sis­tent with what one would expect from Amicus’s find­ings as to bear and keep….[Out of 531 concordance lines,] Amicus categorized 503 lines (almost 95% of the total) as conveying the idio­matic military sense. Amicus categorized only 11 lines (2%) as unambiguously using bear arms to mean ‘carry weapons,’ and only seven of those as arguably using the phrase to convey what Heller said was its “nat­u­ral meaning”: essentially, ‘carry weapons in order to be pre­pared for confrontation.’ Going by Amicus’s categori­zation, therefore, only 1.3% of the con­cordance lines can reasonably be thought of as supporting the Heller inter­pretation.

Although my brief didn’t address the question of why the idiomatic sense of bear arms survived the general replacement of bear by carry, I discussed the issue in one of my blog posts on bear arms:

There is reason to think that the figurative uses of arms can be traced back to before the word became part of the English language. Arms came into English via Anglo-Norman (the version of Old French spoken in England after the Norman Invasion), and some of the figurative uses can be traced back to Anglo-Norman. One of those figurative uses was the porter armes (meaning ‘serve as a soldier, fight for a country or a cause’ (OED); literally, ‘carry weapons’),  which was the predecessor of bear arms in its military sense. And the use of bear arms in that sense in English has been traced back to the beginning of the 14th century—almost as far back as the use of arms in any sense.

What all of this suggests is that the military sense of bear arms didn’t necessarily develop out of the literal use of bear arms in English. Rather, it was most likely absorbed into English as a full-blown idiom (with porter translated into bear) at roughly the same time as the literal use of arms. That conclusion is supported by the OED, which includes this etymological note in its entry for bear arms: “After Anglo-Norman and Old French, Middle French porter armes (c1100 in this sense; French porter armes).”

As the corpus data shows, bear arms was also used in the sense of ‘carry weapons,’ but the corpus data suggests that as the literal use of bear came to be replaced by the use of carry, the literal use of bear arms declined and was largely  replaced by carry arms. As discussed earlier in this post (and as I’ll discuss further in the next post), the data for bear arms includes only a handful instances in which bear arms was used literally. In contrast, in the data for carry arms, more than half the uses are literal. And as is discussed in my post on bear, the pattern of usage of bear was by the second half of the 18th century quite different from the pattern for carry.

All of this is consistent with—and may well help to explain—the fact that the corpus data for bear arms is dominated by uses conveying the phrase’s idiomatic military meaning. … It seems reasonable to think that the persistence of bear in bear arms is attributable to the fact that the phrase was an idiom and therefore that its meaning was, by convention, associated with the phrase as a whole, rather than being derived compositionally from the separate meanings of bear and arms. Presumably the association of the phrase with the idiomatic meaning was stronger than the association of bear with the meaning ‘carry,’ which would have weakened over time as carry pushed bear out of the niche it had previously occupied. If, as seems likely, bear arms occupied a separate niche of its own, it would have been more or less unaffected by the competition between carry and bear—which was largely, but not completely, won by carry.

Historians who are critical of Heller often accuse the Justice Scalia and gun-rights advocates of “presentism”—of looking at historical events from a present-day perspective, without taking enough account of the social and political context in which events occurred. Whether or not that accusation is justified, it seems to me from what I’ve seen that almost everyone who has written about the Second Amendment has been guilty of linguistic presentism.

That’s presumably what led Mr. Weisberg to ask, “If that [bear arms = ‘serve in the militia’] is what the framers meant, why isn’t that what they wrote?” Despite having read my brief (and possibly some of the underlying blog posts?) he was apparently unable to wrap his head around the idea that for founding-era Americans, “the right of the people to…bear arms” might have been understood to mean ‘the right of the people to…serve in the militia.’

09/06/2019

Matt Ford on Originalism and Qualified Immunity
Michael Ramsey

In the New Republic, Matt Ford:  Conservative Judges Are Brawling Over Originalism -- The union between the federal judiciary's true believers in the primacy of our founding documents is fraying (discussing the recent Fifth Circuit decision in Cole v. Hunter, noted here).  From the introduction: 

The Fifth Circuit Court of Appeals handed down a notable ruling on police shootings this week, ruling in favor of a man whose encounter with law enforcement nearly a decade ago left him with profound injuries. It’s the latest development in a case that’s already taken a circuitous path through the judicial system. What’s enlightening about this latest twist is how the court’s originalists, who are now ascendant in the federal judiciary, reached starkly different conclusions.

And from the core discussion: 

The majority made no sweeping claims about [qualified immunity's] validity. They didn’t have to. Judge Don Willett, who dissented from his colleagues’ ruling this week, is among its highest-profile critics in the judiciary. “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly,” he wrote in another case last year.

...

Note that Willett dissented from the majority instead of joining it. In his view, the Supreme Court’s precedents commanded an outcome in the officers’ favor—and that is precisely the problem. “As a middle-management circuit judge, I take direction from the Supreme Court,” Willett wrote. “And the Court’s direction on qualified immunity is increasingly unsubtle. We must respect the Court’s exacting instructions—even as it is proper, in my judgment, to respectfully voice unease with them.”

...

Judges James Ho and Andrew Oldham penned a joint dissent to challenge not just the majority, but Willett as well. All three judges are originalists who were appointed to the Fifth Circuit by President Donald Trump over the past two years. And like Willett, Ho and Oldham would apply qualified immunity to the two officers’ conduct based on current Supreme Court precedent. The two judges still took issue with Willett’s approach on ideological grounds.

“Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution,” they wrote, citing recent scholarly works and Willett’s past writings on qualified immunity. “As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.” ...

“The originalist debate over qualified immunity may seem fashionable to some today,” the two judges wrote. “But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines.” They cited Scalia’s dissent in Crawford-El v. Britton in 1996, where he and Thomas argued for limiting Section 1983 claims as they now stand rather than take them back to the pre–Warren Court era.

The article also comments: "There is a curious tendency among some originalist jurists to treat disagreement on the original meaning as heresy."  I don't think that's right at all.  Originalist jurists (like originalist academics) surely recognize that there will be honest and spirited disagreements on difficult points of originalist interpretation and application.  And when these disagreements arise, jurists (and academics) will forcefully argue for their view.  There's nothing remarkable about this, and it doesn't involve accusations of heresy (or, in the title's word, "brawling").  The article cites the disagreement between Justices Gorsuch and Alito in United States v. Haymond, but again -- like in Cole v. Hunter-- that seems like nothing more than a reasonable difference of opinion.

Disagreements among originalist judges do show that originalist analysis can be hard and does not always lead to definite results (but no serious originalist thinks otherwise).  Disagreements also indicate that originalism is not just a cover for conservative results (as some critics contend) -- they suggest that originalist judges are honestly trying to apply an interpretive process that may leave some room for doubt.

(Via How Appealing).

09/05/2019

Another Missed Opportunity: Kisor v. Wilkie and the Failure to Overturn Auer Deference
Mike Rappaport

In June, the Supreme Court decided the case of Kisor v. Wilkie, which presented the question of whether Auer deference should be eliminated. In another defeat for the movement to restore limits on administrative agency discretion, a majority of the Court refused to overturn Auer v. Robbins and thereby eliminate Auer deference.

Auer deference is the latitude that an agency receives when it interprets regulations it has promulgated. The meaning of such binding regulations is often unclear, but under Auer, an agency’s interpretation can only be reversed if it is unreasonable rather than merely mistaken.

Auer deference is similar to but distinct from its more famous cousin, Chevron deference. Chevron deference provides deference to an agency’s interpretation of a statute that it administers, rather than to an agency’s interpretation of a regulation it has crafted. In many ways, Auer deference is stronger than Chevron deference, because Auer deference has in the past been subject to fewer limitations. For example, whereas Chevron deference is mainly limited to interpretations issued during an agency rulemaking or formal adjudication, Auer has no such limitation and has been applied even to interpretations that are announced in legal briefs. Since agencies promulgate so many regulations, Auer deference turns out to be extremely important.

While it had seemed possible that the five right-wing Justices were ready to eliminate Auer deference, the forces of administrative discretion once again prevailed. As in the recent case of Gundy v. United States involving the nondelegation doctrine, the conservative Supreme Court Justices continue to find ways to lose cases they should win. In this instance, the main culprit was Chief Justice Roberts.

The other eight members of the Court were sharply divided on Auer. The four progressive Justices believed that Auer was correct when it was decided and should be retained. The other four right-wing justices believed that Auer was wrong when it was decided and should be overturned. But Chief Justice Roberts took a middle position. He appeared to believe that Auer was wrong when it was decided (since he did not join the progressives on this) but should not be overturned because of stare decisis. But while this seems like a middle position, it ended up providing the progressives with a victory and the right-wingers with a loss.

Roberts’s position was extremely problematic. To begin with, the majority opinion that he joined appeared contradictory. While it sought to justify not overturning Auer on stare decisis grounds, the opinion significantly changed the law by cutting back on Auer deference in a variety of ways, turning the strong deference doctrine into a weaker one. While that, no doubt, appealed to Roberts as a matter of legal policy, it also rendered the opinion incoherent. In the name of following precedent, the Court changed the law. This harkens back to Planned Parenthood v. Casey, where the Supreme Court justified its decision to not overturn Roe v. Wade based on stare decisis, but then cut back on the protections the law afforded abortion rights.

If the Court was going to cut back on Auer, it should have justified that change. It should have acknowledged what it was doing and explained why. But the Court failed to do so. Moreover, to justify narrowing Auer, but not overturning it, the Court should have explained why the rules of stare decisis forbade overturning the case, but allowed narrowing the precedent. But the Court did not even address the propriety of cutting back on Auer.

While the Court did attempt to justify not overturning Auer, its argument is seriously deficient. First, the Court ignores the law in the most recent case that significantly discussed stare decisis, Janus v. American Federation of State Employees. Janus listed the quality of a decision’s reasoning as the first factor it considered when deciding whether to overrule that decision. But neither the Court’s discussion of stare decisis nor Chief Justice Roberts’s concurrence mentioned this factor.

Second, one of the weightiest arguments in favor of stare decisis—the reliance interests of the public and the government—did not support the majority’s decision. As Justice Gorsuch notes in his dissent, the Court could have overturned Auer but applied stare decisis to the cases where the courts had already given the agencies Auer deference. In that way, disruption would be minimized while still ending the application of Auer to future cases. In fact, reliance interests actually argue against the majority decision. Since the majority cut back on Auer deference, there is now uncertainty about how the courts should treat future cases involving the interpretation of regulations where the courts had previously applied a stronger deference rule than Kisor announced.

While the stated reasons for Chief Justice Roberts voting to maintain Auer are weak, the most obvious reason for Roberts’s vote is the one that accords with the popular perception of Roberts. Under this view, Roberts does not want the “Roberts Supreme Court” to be seen as deciding too many 5-4 cases where the five right-wing justices vote in a block, especially where they are overturning earlier decisions. Thus, Roberts joins the progressive block, because somehow progressives voting in a block is not a problem. But while Roberts votes not to overturn Auer, he nonetheless gets much of his way, because Kisor significantly cuts back on Auer. So Roberts gets the best of both worlds—the Court narrows Auer, but is not seen as overturning a precedent currently dear to progressives.

Yet, there is a real cost here. Auer unjustifiably expanded administrative power, as Justice Gorsuch’s dissent ably shows. Moreover, both Auer and Chevron are cases where the courts expanded administrative power on their own authority. While Congress often delegates authority to agencies, the courts did this on their own. To refuse to correct their error now—through the use of a less than candid justification, perhaps in order to protect the Chief Justice’s vision of the Court’s reputation—is an outrage.

Michael Perry: Two Constitutional Rights, Two Constitutional Controversies
Michael Ramsey

Michael J. Perry (Emory University School of Law) has posted Two Constitutional Rights, Two Constitutional Controversies (65 pages) on SSRN.  Here is the abstract:

This article is my contribution to the Festschrift celebrating the distinguished scholarly career of Richard S. Kay, Wallace Stevens Professor Emeritus and Oliver Ellsworth Research Professor, University of Connecticut School of Law.

My overarching aim in the article is to defend a particular understanding of two constitutional rights and, relatedly, a particular resolution of two constitutional controversies. The two rights I discuss are among the most important rights protected by the constitutional law of the United States: the right to equal protection and the right of privacy. As I explain in the article, the constitutional right to equal protection is, at its core, the human right to moral equality, and the constitutional right to privacy is best understood as a version of the human right to moral freedom. The two controversies I discuss, each of which implicates the two rights, are among the most divisive constitutional controversies of our time: the controversies concerning, respectively, abortion and same-sex marriage.

Arguments of the two sorts I make in this article—arguments defending a particular understanding of one or more constitutional rights and arguments defending a particular resolution of one or more constitutional controversies—necessarily presuppose a theory of judicial review. The theory of judicial review on which I rely, and whose basic features I rehearse in the article, is the theory I defend at length in my most recent book, A GLOBAL POLITICAL MORALITY: HUMAN RIGHTS, DEMOCRACY, AND CONSTITUTIONALISM (Cambridge University Press 2017).

09/04/2019

Thoughts in Response to David Weisberg
Michael Ramsey

This post offers a few thoughts in response to the recent post on this blog by David Weisberg.  I agree with the main points of his post, but disagree as to their implications.

His post (and other related work) argues that if the original meaning of the words in the Constitution is, because of the passage of time, different from the modern meaning, that is a serious problem for originalism that cannot be solved by resorting to founding-era dictionaries.  After all, those founding-era dictionaries are from the same time, so the original meaning of their words will also differ from the modern meaning.  And so on.  As he puts it: 

If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

I agree, as a theoretical matter.  If the original meaning of eighteenth century words routinely differed widely from the modern meaning of those same words, eighteenth century dictionaries would not be much help.  It would be like trying to translate a document from German to English using only a German dictionary.

But, he goes on to say (and again I agree), commonly the original meaning of words in the Constitution is the same as the modern meaning.  I do not agree that this is always the case.  It's easy enough to think of counterexamples: "gay" meaning happy instead of having a same-sex sexual orientation; "awful" meaning filing one with awe instead of terrible.  But in general I think he is right that particular word meanings have not changed that much.

For that reason, originalism does not actually depend that much on founding-era dictionaries.  Scholarship and opinions that emphasize founding-era dictionaries likely overstate their importance.  Of course we should consult founding-era dictionaries to be sure we are not dealing with the relatively unusual situation in which a key word has evolved dramatically in meaning.  But usually we will find that it has not (and we can determine that because at least most of the words in a founding-era dictionary have not evolved in this way).

In other words, originalism is (or should be) based on a rebuttable presumption that the words have not changed meaning (and dictionaries can be used to confirm this).  Justice Scalia approached the project in exactly this way.  First, he used founding-era dictionaries relatively rarely in his constitutional opinions.  Second, when he did use them, he frequently found that the original meaning and the modern meaning were the same.  For example, from D.C. v. Heller (often considered his most dictionary-driven opinion):  "The 18th-century meaning [of "arms"] is no different from the meaning today. [citing dictionaries].... At the time of the founding, as now, to 'bear' meant to 'carry.'" [citing dictionaries].   Similarly, from Morrison v. Olson:  "Dictionaries in use at the time of the Constitutional Convention gave the word 'inferiour' two meanings which it still bears today..."  Clearly he was using founding-era dictionaries to confirm that the meanings have not changed, not in service of a rebuttable presumption that they have changed.

I think this mostly solves the "infinite regress" problem described in the post.  But it does not lead to the conclusion that we can simply ignore history and use modern meanings.  The problem is, as the post acknowledges (albeit parenthetically): "The meanings of phrases in the Constitution is a different matter."

That's exactly right.  Even if words typically have the same dictionary meanings that they did in the founding era, the connotation of those words when put together and used in a particular context may differ considerably from what we would understand today.  That is the core challenge of originalism -- not primarily to translate founding-era words using founding-era dictionaries, but to understand how putting those words into constitutional phrases and clauses in the founding-era context affected their meaning in ways that may not align with modern usage.  The central question in Heller, for example, was whether the phrase "keep and bear arms" encompassed an individual right to have arms for self-defense.  That question is not answerable simply by looking at dictionary definitions, because (as Scalia acknowledged) the dictionary definitions don't tell us anything we don't already know.  The question is the meaning of the phrase, which may well have changed over time -- and indeed the core of the Heller opinion depends not on the dictionary definitions but on the Amendment's context.

So I agree that in the usual case founding-era dictionaries often are not so important, but I think that still leaves room for considerable originalist analysis.

09/03/2019

John McGinnis on Stephen Budiansky on Oliver Wendell Holmes
Michael Ramsey

At Law & Liberty, John McGinnis: Holmes: An Uncommon Common Lawyer, but No Constitutionalist (reviewing Stephen Budiansky, Oliver Wendell Holmes: A Life in War, Law and Ideas (W.W. Norton, 2019)).  From the introduction:

Oliver Wendell Holmes: A Life in War, Law and Ideas might well be one of the most stimulating judicial biographies ever written. Of course, the life and career of Holmes (1841-1935) offer Stephen Budiansky much richer material than those of a typical judge. No other Supreme Court justice was seriously wounded three times on the battlefield, twice almost mortally. No other justice grew up in such a distinctive intellectual milieu with a father of the same name who was nationally famous. No other justice had from the earliest age soon-to-be world famous friends, like “Bill” and “Harry” (William and Henry James to the rest of us).

But Budiansky makes the most of this material. His descriptions of the Civil War battles in which Holmes fought are as intensely gripping as any written by a veteran military historian. And he appears to have ferreted out new material in the well-plowed archives of our bloodiest war. For instance, he includes a map of the Battle of Ball’s Bluff (Loudoun County, Virginia, October 1861) sketched by one Holmes’s friends, to show exactly where the first lieutenant in the 20th Massachusetts Regiment was shot through the chest. And the biographer nicely relates Holmes’s battlefield experiences to the rest of his life and work. Holmes came away from the Civil War profoundly concerned about human beings’ capacity to believe conflicting ideas with complete certitude, and pessimistic about the capacity of intellectual argument to convince them of the truth.

And from later on:

The greatest weakness of the book is its treatment and evaluation of Holmes’s distinctively legal ideas. ...

The real problem with Holmes is that he was a common lawyer who did not take the time to understand the meaning of the written law. All of his academic work concerned the common law of judges, and he spent almost two decades on the Massachusetts Supreme Judicial Court, which had a heavy common law docket. He was elevated to the Supreme Court of the United States when he was 61—a relatively old age for appointment.

It is striking that his most famous dissent (Lochner) is a rhetorical tour de force, yet it offered no analysis of what the relevant portions of the 14th Amendment meant, other than to say for effect that they did not “incorporate Herbert Spencer’s Social Statics.” (No one, of course, was arguing that they did.) Even his test for judicial restraint was less textually based than that of his contemporary, Thayer. Thayer wanted the Court to defer to any reasonable interpretation of the text. Holmes wanted to defer so long as the law the legislature enacted did not make him “puke.” A real contradiction, therefore, is his very subjective test for unconstitutionality, as against his view that the common law had evolved to make decisions on the basis of objective tests. For instance, the common law treats the standard of negligence as related to the care a “reasonable man” would take, ignoring the limitations and peculiarities of the individuals involved in the case

In conclusion:

Budiansky misses this fundamental problem with Holmes, being content to praise him as a founder of living constitutionalism, whose practitioners indeed often do neglect the text. But like many other living constitutionalists, Holmes never offered a theory about why the original meaning should not be binding. While his ideas about the common law still command respect today, his constitutional law contributions are much shallower. Some of his constitutional results still guide the Court, but he has not left behind an enduring theory of constitutional jurisprudence.

09/02/2019

Re Original Meaning in the Faithless Electors Case
David Weisberg

In a paper published on SSRN entitled “Originalism is Dead…Long Live Identicalism!”, I presented what I called the Paradox of Originalism:

If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

A few minutes of reflection will confirm that the Paradox is self-evidently true. 

The Tenth Circuit recently held, by a 2 to 1 decision in Baca v. Colorado Department of State (Judge Carolyn B. McHugh for the majority), that Colorado cannot bar a presidential elector from voting for someone who did not win a majority in the State [see here]. The opinion relies heavily on “historical textualism” or “original-public-meaning originalism,” long associated with the late Justice Antonin Scalia.  The opinion is a perfect exemplar of the illogic that flows from a failure to recognize the Paradox.

The case arises out of the 12th Amendment, adopted in 1804.  The majority asserts that the meanings of the terms “elector,” “vote,” and “ballot,” as used in the amendment, must be ascertained.  The majority continues: “Therefore, we look to contemporaneous dictionaries to understand the meanings of the words used in the Constitution.”  Judge McHugh then identifies five dictionaries published contemporaneously with the 12th Amendment, and she then analyzes the definitions they provide for the three key words.

What Judge McHugh fails to note, however, is that the definitions provided in those contemporaneous dictionaries were published either before or no later than two years after the 12th Amendment was adopted.  If, therefore, the antiquity of the amendment makes its meaning questionable, then the antiquity of those dictionary definitions makes their meaning questionable.  (See, the Paradox.)  The intellectually-consistent, conscientious originalist is bound to use the identical methodology to ascertain the meanings of the words in the contemporaneous definitions, and then to ascertain the meaning of the words in those further definitions, and then etc.  An infinite regress yawns.

As I have argued elsewhere (here and here), there is no reason whatsoever to presume that the words in the Constitution or its Amendments have original, time-dated meanings that differ from their meanings today.  What is more, a few hours spent perusing today’s Oxford English Dictionary, with particular focus on the etymological entries accompanying each definition, will convince any open-minded person that, in fact, all of those words had meanings in 1788 or later identical to their current meanings.  (The meanings of phrases in the Constitution is a different matter.) 

To avoid an infinite regress, one must presume that the original meanings of the words in the Constitution are identical to the current meanings.  No serious student of the Constitution should knowingly employ a methodology that inevitably produces an infinite regress.  The Paradox can be ignored, but it cannot be refuted.

09/01/2019

Evan Zoldan: Corpus Linguistics and the Dream of Objectivity
Michael Ramsey

Evan C. Zoldan (University of Toledo College of Law) has posted Corpus Linguistics and the Dream of Objectivity (Seton Hall Law Review, forthcoming) (43 pages) on SSRN.  Here is the abstract:

A growing number of scholars and judges have embraced corpus linguistics as a way to interpret legal texts. Their stated goal—to make legal interpretation more objective — is an admirable one. But, is their claim that corpus linguistics can reduce the subjectivity associated with judicial intuition and biased data more than just a dream? This Article analyzes the use of corpus linguistics for statutory interpretation and concludes that this novel practice does not live up to its promise to make legal interpretation more objective. Instead, the use of corpus linguistics relies on judicial intuition and biased data, disrupting its proponents’ dream of objectivity.

08/31/2019

Michael Lewis: Protecting Our Constitution Through an Anti-Originalist Interpretive Canon of Constitutional Interpretation
Michael Ramsey

Michael Lewis (Rath, Young and Pignatelli) has posted Evil History: Protecting Our Constitution Through an Anti-Originalist Interpretive Canon of Constitutional Interpretation (University of New Hampshire Law Review, forthcoming) (35 pages) on SSRN.  Here is the abstract:

This review assesses three recent books on the subject of originalism. Each approaches the question of originalism from a different angle. None of the books confronts the raw challenge to the authority of the framers leveled by Justice Thurgood Marshall in his speech upon the bicentennial of the United States Constitution. Marshall argued that the founding generation was too morally compromised, too bereft of information we now have as a result of the existence and experiences of millions of Americans since the close of the 18th century, and too imperfect in their efforts to design a sustainable government, to justify the devotion to their perspective originalism demands. In the face of this critique, originalism, which is a devotional doctrine, and originalists, its devotees, nevertheless insist that we should obey the founding generation and ignore so much that we have learned since, including the “the reality that a nation putatively based on the principle of human equality was actually a prison house in which millions of Americans had virtually no rights at all.” 

Drawing on this and other more complete descriptions of our history, this review demands that advocates for an originalist methodology confront the full brunt of our past, both good and evil. The failure to do so has deep moral, political, sociological and legal ramifications. “Law writes the past, not just its own past, but the past for those over whom law seeks to exercise its dominion.” To the extent that law writes a past that covers-up, papers-over, ignores or subverts the evil aspects of history, it engages in abuses that we would condemn if perpetrated by other nations as denial.

As a methodology, this review rejects originalism as a presumptively justifiable methodology. It goes further. It proposes a canon of constitutional construction that would proscribe the use of originalism in any of its variants unless certain prophylactic historical facts are established or negated by the proponents of any form of originalism. Broadly speaking, this canon would require any party in any litigation or legal dispute seeking to offer or rely upon the perspective of the founding generation in any dispositive fashion to demonstrate that the clause or clauses to be interpreted and the history to be deployed bears no supporting relationship to the evils of our national past and would not further principles underlying those evils. 

Specifically, such a canon would require proponents of the originalism methodology to demonstrate that originalism arguments and evidence should be rejected if they would further original principles that perpetuated the institution of slavery, furthered the expulsion and mass extermination of Native Americans as a national policy, buttressed the terrorism of Redemption upon the collapse of Reconstruction, supported the political and personal subjugation of women and children, or permitted the use of governmental force to suppress political speech in the forms present during any of the historical periods from which the evidence is drawn. If the proponents of originalism are not able to overcome this burden, they must rely upon the many methodological approaches to constitutional interpretation that are not originalism, that have developed over the course of American history, and have been embraced and incorporated into our law without great controversy.

It's not at all clear to me that the last sentence of the abstract follows from the prior analysis.  I would think that the implication of the "evil history" position is that there should not be constitutional judicial review at all (or rather, that there should be constitutional judicial review only as to constitutional provisions not infected by the "evil history").

08/30/2019

Evan Bernick & Christopher Green: What is the Object of the Article VI Oath?
Michael Ramsey

Evan D. Bernick (judicial clerk) and Christopher R. Green (University of Mississippi - School of Law) have posted What is the Object of the Article VI Oath? (54 pages) on SSRN.  Here is the abstract:

How and why are officers today bound to the Constitution? Article VI gives us a crystal-clear answer: they are bound “by oath or affirmation, to support this Constitution.” But what is the content — the object — of that promise? American constitutional culture today describes its Constitution in ways that presuppose that the Article VI oath binds office-holders to an external, objective, common object: the same commitment for all oath-takers today, and the same commitment today as in the past. Justices on the Supreme Court took their constitutional oaths at different times, spread out over 27 years from 1991 to 2018, but they claim to fulfill those nine oaths by speaking collectively of “the Constitution.” Americans regularly describe their Constitution as the oldest still-operational written national Constitution in the world. These sorts of contingent practices could of course change. But until they do, we should understand oath-takers to be swearing to obey the same entity which has been operative since the eighteenth century. If we have a living Constitution today, it must have been living from the very start. Our current constitutional culture correctly rejects post-Founding “constitutional abiogenesis” — a transition from a non-living to a living Constitution between the Founding and today. Change in constitutional requirements may be justified only if rooted in the rules for constitutional change operative at the Founding.

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

08/29/2019

Eric Segall on Originalism and Structural Reasoning
Michael Ramsey

At Dorf on Law, Eric Segall: Strange Bedfellows: Structural Arguments and Originalism.  Fro the beginning:

I'd like to call attention to a wonderful new essay by Professor Thomas Colby titled "Originalism and Structural Argument" published in the Northwestern University Law Review [ed.: noted here]. Colby raises serious questions about federalism and separation of powers cases that most originalists favor but which are difficult to reconcile with originalist methodologies. Colby, a long-time critic of originalism, especially the so-called “New Originalism,” contends that cases like Printz v. United States (Congress can’t commandeer state executives unless it does so incidentally through laws applicable to private actors too), Alden v. Maine (states have sovereign immunity from federal question suits in their own courts), and Seminole Tribe of Florida v. Florida (states can’t be sued in federal courts by citizens of their own states), are all based on non-textual, structural arguments arguably inconsistent with the originalist canon. Colby’s arguments are strong and should be wrestled with by originalist scholars who favor the results in these and similar cases.

Colby correctly points out that, although there are numerous and varied originalist theories, most of them are centered around the importance of constitutional text. Professor Lawrence Solum, the only law professor to testify about originalism during then-Judge Neil Gorsuch’s confirmation hearing, said during his testimony that the “whole point of originalism is to respect the text.” Numerous prominent academic originalists such as Michael Paulsen, Stephen Calabresi, and Saikrishna Prakash, as well as many others, give the text interpretative primacy, and, according to Colby, argue that “once a judge deviates from the ratified text, she is making law, rather than following it.”

...

Hence the conundrum: anti-federal power cases like PrintzAlden, and Seminole Tribe, hailed as correct by most conservative originalists, are based on general structural arguments, not specific constitutional text. Nowhere in the Constitution is there a syllable suggesting Congress cannot commandeer state legislatures, that states can’t be sued by their own citizens in federal court, or that states can’t be sued under federal law in their own courts. Numerous other cases based on structure not text could be added to the list. Shelby County v. Holder articulated an equal state sovereignty principle limiting Congress’ powers under the Reconstruction Amendments, and recently the Court held states couldn’t be sued in the courts of other states. despite an absence of text supporting either result. All of these cases are based on general and contestable structural principles underlying our constitutional system, not the original public meaning of the constitutional text.

And this even sharper point from later on: 

This coming together of originalism and living constitutionalism is reflected in the second major issue originalists must grapple with when defending the Court’s federalism cases striking down legislation based on structure not text. The type of reasoning used by Supreme Court Justices in these cases is, as Colby persuasively points out, indistinguishable from the “penumbras and emanations” rationale of Griswold v. Connecticut. That holding, of course, led to the judicial creation of the controversial right to privacy which formed the basis of Roe v. Wade, the very case which in large part gave rise to the originalist movement, and which is still attacked by most originalists today.

An insightful and challenging critique, both in Professor Colby's article and Professor Segall's post.  I agree in part and disagree in part.  I agree that many of the opinions mentioned are dubious on purely textualist grounds (as I hinted in my Notre Dame Law Review piece on Justice Scalia's originalism) and with my inclinations to textualism they make me uneasy.  (Some I think are more easily defended on textual grounds than others -- see my post here sharply criticizing the Franchise Tax Board v. Hyatt decision).  But I think many of them (not Hyatt!) are defensible on originalist structural reasoning, which I think is very different from living constitutionalism.  Originalist structural reasoning seeks to preserve the structure the framers designed, and thus to preserve their expectations about constitutional government.  Living constitutionalism, especially in the cases Professor Segall cites, reaches results contrary to the framers' expectations and design.

08/28/2019

Original Meaning in the the Faithless Electors Case [Updated]
Michael Ramsey

Last week the Tenth Circuit held in Baca v. Colorado Department of State that Colorado could not remove and replace a presidential elector who failed to vote for the candidate winning the most votes for President in Colorado. (This sets up a conflict with the Washington Supreme Court, which held that Washington could fine so-called "faithless" electors -- Lyle Denniston has this analysis at Constitution Daily).  The Baca majority (Judge McHugh for herself and Judge Holmes; Judge Briscoe dissented on mootness) rests heavily on historical textualism, backed up by cites to founding era dictionaries (some footnotes omitted): 

Mr. Baca contends that not only is a role for the state beyond appointment conspicuously absent from the Constitution, but the language used—specifically the terms “elector,” “vote,” and “ballot”—also establishes that no such role exists because presidential electors are granted the constitutional right to exercise discretion when voting for the President and Vice President. In analyzing this contention, we first consider the meanings of those terms as understood at the time of the Constitution’s ratification. Then, we compare the use of “elector” in Article II and the Twelfth Amendment with the use of that term elsewhere in the Constitution.

1) Contemporaneous dictionary definitions

“[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824). Therefore, we look to contemporaneous dictionaries to understand the meanings of the words used in the Constitution.

[Footnote:] For the period of 1750–1800, the following four dictionaries are considered “the most useful and authoritative for the English language”: Samuel Johnson, A Dictionary of the English Language; Nathan Bailey, A Universal Etymological English Dictionary; Thomas Dyche & William Pardon, A New General English Dictionary; and John Ash, The New and Complete Dictionary of the English Language. Scalia & Garner, Reading Law: The Interpretation of Legal Texts 419 (2012). There are four additional dictionaries deemed the most relevant for the period of 1801–1850—dictionaries from 1806, 1818, 1828, and 1850. Id. at 420. Because the Twelfth Amendment was adopted in 1804, the only one of these relevant for our purposes is Noah Webster’s 1806 dictionary, A Compendious Dictionary of the English Language. Id.

Dictionaries from the relevant period support Mr. Baca’s contention that the drafters of the Twelfth Amendment intended electors to exercise discretion in casting their votes for President and Vice President. At the time of the Twelfth Amendment, the term “elector” was defined as “[h]e that has a vote in the choice of any officer,” 1 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785); “[a] chuser,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763); and “[o]ne who chooses, one who has a vote in the choice of any public officer,” 1 John Ash, The New and Complete Dictionary of the English Language (1795); see also Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760) (defining elector as “a person who has a right to elect or choose a person into an office”); Noah Webster, A Compendious Dictionary of the English Language (1806) (defining elector as “one who elects,” and elect as “to choose, select for favor, prefer”).

Similarly, the term “vote” was defined as “[s]uffrage; voice given and numbered,” 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785); “[v]oice, [a]dvice, or [o]pinion of a [m]atter in [d]ebate,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763); “to speak for or in behalf of any person or thing; also to chuse or elect a person into any office, by voting or speaking,” Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760); “[a] suffrage, a voice given and numbered, a determination of parliament”; “to chuse by suffrage; to give by a vote,” 2 John Ash, The New and Complete Dictionary of the English Language (1795); “to give or choose by votes,” and “a voice,” Noah Webster, A Compendious Dictionary of the English Language (1806). Correspondingly, “to vote” was defined as “[t]o chuse by suffrage; to determine by suffrage,” 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785), and “to give one’s [v]oice,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763).

And contemporary sources defined “ballot” as a mechanism for choosing or voting. See 1 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785) (defining “ballot” as “[a] little ball or ticket used in giving votes, being put privately into a box or urn”); id. (defining “to ballot” as “[t]o choose by ballot, that is, by putting little balls or tickets, with particular marks, privately in a box; by counting which, it is known what is the result of the poll, without any discovery by whom each vote was given”); Nathan Bailey, A Universal Etymological English Dictionary (London, 1763) (defining “ballot” as “[a] little ball . . . used in giving of [v]otes”); 1 John Ash, The New and Complete Dictionary of the English Language (1795) (defining “ballot” as “[t]o choose by dropping a little ball or ticket into a box; to choose by holding up the hand”); Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760) (defining “ballot” as “to vote for, or chuse a person into an office, by means of little balls of several colours, which are put into a box privately, according to the inclination of the chuser or voter”); Noah Webster, A Compendious Dictionary of the English Language (1806) (defining “ballot” as “to choose or vote by ballot” and “a little ball, little ticket, chance, lot”).

As these sources reflect, the definitions of elector, vote, and ballot have a common theme: they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.

2) Use of “elector” in the Constitution

Mr. Baca also points to the use of the word “elector” elsewhere in the Constitution as support for his position that electors may vote freely. This approach is sound because, “[w]hen seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself.” Ariz. State Legislature, 135 S. Ct. at 2680 (Roberts, C.J., dissenting); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (recognizing that when a term, such as “the people,” is being used as “a term of art employed in select parts of the Constitution,” that term should be given the same meaning in each context and contrasted with the use of other terms).

The term “electors” is used in Article I of the federal Constitution. Members of the House of Representatives are “chosen every year by the people of the several states, and the Electors in each state shall have the qualifications requisite for Electors of the most numerous branch of the state legislature.” U.S. Const. art. I, § 2, cl. 1 (emphases added). The term “electors” as used there refers to the citizen voters who choose the persons who will represent them in the House of Representatives.

The term “electors” is also used in the Seventeenth Amendment. Although Senators were “chosen by the legislature” of the state at the time of the founding, id. art. I, § 3, cl. 1, the Seventeenth Amendment now requires Senators be “elected by the people” of the state, id. amend. XVII. As with the House of Representatives, Senate “electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislatures.” Id. (emphases added).

It is beyond dispute that the “electors” under Article I, Section 2, Clause 1, and the Seventeenth Amendment exercise unfettered discretion in casting their vote at the ballot box.28 It is a “‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ‘the people should choose whom they please to govern them.’” U.S. Term Limits, 514 U.S. at 783 (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)). “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and the restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964) (emphasis added). “Not only can th[e] right to vote [provided by Article I, Section 2] not be denied outright, it cannot, consistently with Article I, be destroyed by the alteration of ballots or diluted by stuffing of the ballot box.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (citation omitted).

The freedom of choice we ascribe to congressional electors comports with the contemporaneous dictionary definitions of elector discussed above. And because we treat usage of a term consistently throughout the Constitution, Verdugo-Urquidez, 494 U.S. at 265, the use of elector to describe both congressional and presidential electors lends significant support to our conclusion that the text of the Twelfth Amendment does not allow states to remove an elector and strike his vote for failing to honor a pledge to vote for the winner of the popular election. Instead, the Twelfth Amendment provides presidential electors the constitutional right to vote for the candidates of their choice for President and Vice President.

That's a lot of dictionary cites!  I think it's a plausible conclusion.  Rob Natelson, whose analyses I always find helpful and usually find persuasive, made a similar originalist argument against the Colorado law back in 2016: Presidential Elector Discretion: The Originalist Evidence.  See also this post (also from 2016) by Mike Rappaport, reaching the same conclusion.(To be clear, I think this is a different question from whether electors are constitutionally obligated to vote their personal preferences (see my discussion here)).

Derek Muller questions some other aspects of the courts' opinion here (at Excess of Democracy).  Noah Feldman argues against it, largely on nonoriginlist grounds, here.

It seems likely that the Supreme Court will take up the issue.  Professor Muller thinks that the mootness argument in Baca might be persuasive.  But the Washington case isn't moot in any event (since it upheld fines against the faithless electors) so that might be the way the issue gets to the Court.  Lyle Denniston reports that  "[w]ith the Tenth Circuit’s ruling now out, and with its creation of a direct split with the ruling in May by the Washington Supreme Court, Professor Lessig [the electors' counsel in the Washington case] presumably will be filing his appeal shortly in the Washington case."

UPDATE:  David Post discusses the case at Volokh Conspiracy: The Return of the Faithless Elector.  It's a good discussion but I disagree with this passage:

But let us imagine the unimaginable—a useful thought experiment, especially, I would think, for adherents to the "original meaning" of the Constitution.  What if we actually ran our presidential elections as the Framers intended—i.e., what if we committed the decision of who would become our president to this group of 538 people, each of whom had been elected by voters in one of the States for the sole purpose of choosing, freely, the candidate they believed best suited to the office?

I take it that a strict originalist would say: that was what the Framers intended, and the Constitution has not been modified so as to alter that structure, so … Yes, that is precisely what the Constitution requires.

Nope.  For public meaning originalists (the predominant view among modern originalists), the question is not what the framers intended but what the text they wrote requires.  As I've discussed in the post linked above, I don't think the text prohibits electors from pledging to vote in a certain way in order to be selected (though it may prohibit states from punishing them if they break that pledge). 

08/27/2019

More from Neal Goldfarb on Corpus Linguistics and the Second Amendment
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb has posted the final installment in his series on corpus linguistics and the Second Amendment.  Here is the introduction: 

This post will complete my analysis of the Second Amendment—for now. So far, I’ve focused almost entirely on the Second Amendment’s specification of the right that it protected—the right of the people, to keep and bear Arms—and have said little or nothing about well regulated or militia. That doesn’t mean I have nothing to say about those expressions, it just means that I’ll defer that discussion until sometime in the future.

Meanwhile, here in the present, this post will try to answer the question that I raised in the last post: whether the Supreme Court was right in saying that the fact that bear arms appears in the phrase keep and bear arms means that bear arms couldn’t have been used in its idiomatic military sense:

[If bear arms were given its idiomatic meaning,] the phrase “keep and bear arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

It’s true that interpreting bear arms as having been used idiomatically would mean that arms conveys two different meanings (a phenomenon known as copredication). But as explained in my last post, that doesn’t rule out such an interpretation. Now, in this post, I’ll argue that interpreting bear arms in that way is more than just a theoretical possibility. I’ll discuss evidence that makes it reasonable to think keep and bear arms was intended to convey such a meaning, and that such an interpretation would have been more likely than the alternative. ...

This page explains the project and has links to prior posts.  It's an extraordinarily insightful and challenging project.

08/26/2019

Jay Schweikert on Originalism and Qualified Immunity
Michael Ramsey

A Cato-at-Liberty, Jay Schweikert: Dissenters in Fifth Circuit Qualified Immunity Case Misunderstand the Relationship between “Originalism” and Section 1983 (commenting on the dissent in Cole v. Hunter highlighted here).  From the introduction:

Perhaps sensing that the tide is turning against qualified immunity, Judges Ho and Oldman – both Trump appointees themselves – wrote separately [in Cole v. Hunter] to respond to the general idea that qualified immunity should be reconsidered. ...

[In their view], qualified immunity may well lack any plausible textual or historical basis. But because, say Judges Ho and Oldham, the Supreme Court erroneously expanded the reach of Section 1983 in Monroe v. Pape (by holding that state officials could be sued even when they were acting contrary to a state’s own laws), then two wrongs make a right, and we should just keep qualified immunity as is, as a kind of compensating error. Indeed, they conclude this section of the opinion by saying: “If we’re not going to do it right, then perhaps we shouldn’t do it at all” – with “it” here meaning, actually interpret statutes as written.

Lest this argument seem like an abstruse, academic rejoinder, I can personally attest, having now participated in or observed several debates on qualified immunity, that this is the most frequently and fervently raised rebuttal to the otherwise insurmountable assertion that modern qualified immunity lacks any plausible historical basis. But despite its veneer of reasonableness, this “two wrongs make a right” argument is so deeply, fundamentally flawed, on so many levels, that it’s worth spelling out each of them in detail ...

And from further along, on Monroe v. Pape

Judges Ho and Oldman (and Justice Scalia, in his Crawford-El opinion) seem to take it as a given that Monroe v. Pape was wrongly decided, which is what gives them justification to accept the obvious (but in their view, counter-balancing) errors with qualified immunity itself. But that assumption simply isn’t justified – indeed, there’s a very good originalist argument that Monroe was, in fact, correctly decided, which of course would entirely negate this “two wrongs make a right” defense of qualified immunity. To restate Justice Scalia’s (and by extension, Judges Ho and Oldman’s) criticism of Monroe: The text of Section 1983 creates liability for those who act “under color of any statute, ordinance, regulation, custom, or usage of any State.” Thus, in Justice Scalia’s view, a state official can only be liable under Section 1983 if they were, in fact, acting in accordance with state law. Therefore, by holding that state officials could be liable even when their actions were not authorized by state law, the Monroe Court massively expanded liability under Section 1983, in contravention of the statutory language.

Though superficially plausible, the problem with this argument is that it glosses over the meaning of the phrase “under color of.” After all, the statute could have been written to cover violations committed “in accordance with any statute, ordinance, regulation, custom, or usage, of any State.” If that were what the statute said, Justice Scalia’s criticism of Monroe would be well taken. But, as a historical, originalist matter, that is simply not what the phrase “under color of” means. To the contrary, this phrase is actually a longstanding term-of-art which was well understood to encompass false claims to authority. As detailed by Steven Winter in an article on exactly this subject, the use of this phrase goes back more than 500 years, to an English bail bond statute that voided obligations taken by sheriffs “by colour of their offices,” if they failed to comply with statutory requirements. In other words, it encompassed illegal acts by government agents who abused or exceeded their statutory authority – which is exactly the sort of unlawful conduct recognized by Monroe. Therefore, contra Justice Scalia’s suggestion in Crawford-El, a faithfully originalist understanding of Section 1983 would seem to support the result in Monroe. And if that’s the case, then obviously the whole “two wrongs make a right” theory collapses.

08/25/2019

Judge Eric Murphy on Denying Equal Protection
Michael Ramsey

Judge Eric Murphy, concurring in the recent Sixth Circuit case Estate of Romain v. City of Grosse Pointe Farms, argues that claims that the police failed to give adequate protection should be understood as equal protection claims, not substantive due process claims (and citing, among other authorities, originalist scholars John Harrison and Christopher Green): 

At first blush, the Equal Protection Clause’s text—barring the State from “deny[ing] to any person . . . the equal protection of the laws,” U.S. Const. amend. XIV, § 1—may provide a more plausible textual hook than the Due Process Clause for claims that the police intentionally denied a specific person (a so-called “class of one”) the protection of the criminal laws that everyone else enjoys. Indeed, while it is now well-established that the Equal Protection Clause provides a general antidiscrimination mandate for all state acts, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam), some commentators have cited historical materials suggesting that remedial laws (like the laws implicated here) fall within the center of the “protection of the laws,” see John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1435–36 (1992) (citing 1 W. Blackstone, Commentaries *55–56). These protective laws stand in contrast to, say, public-employment decisions in which “the government acts in a more proprietorial and less regulatory capacity.” SECSYS, LLC v. Vigil, 666 F.3d 678, 690 (10th Cir. 2012) (opinion of Gorsuch, J.) (discussing Engquist v Ore. Dep’t of Ag., 553 U.S. 591 (2012)).

History supports this instinct too. “[T]he suppression of private violence [was] the core concern of the Equal Protection Clause.” Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. C.R. L.J. 219, 254 (2009). “The unwillingness of the law enforcement authorities in southern states to protect the newly freed blacks from white vigilante groups such as the Ku Klux Klan was an important motive for the enactment of the equal protection clause.” Del Marcelle v. Brown Cty. Corp., 680 F.3d 887, 889 (7th Cir. 2012) (en banc) (opinion of Posner, J.). For example, Congress enacted the 1866 Civil Rights Act to give “nonwhites ‘full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.’” David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 349 (1985) (quoting Act of Apr. 9, 1866, § 1, 14 Stat. 27, 27). And the framers enacted the Fourteenth Amendment to ensure this act’s constitutionality. Id. at 347–49. To be sure, the Equal Protection Clause’s primary target may have been racially discriminatory refusals to protect persons from private violence. Id. at 349. But, whatever its purpose, the Equal Protection Clause’s text is not limited to race-based denials of the protection of the laws. Cf. District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008); Crawford v. Washington, 541 U.S. 36, 61–62 (2004).

The Equal Protection Clause’s text and history suggest that the right question to ask is: When, if ever, do equal-protection principles give a specific individual the right to challenge a state officer’s intentional refusal to provide the protection of the laws that keep the public safe from private violence? Figuring out the right question is the easy part; determining the appropriate answer is much harder. ...

(Via How Appealing.)

08/24/2019

Legal Theory Lexicon: Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has updated his entry in the "Legal Theory Lexicon" for "Originalism." Here are some excerpts.  From the introduction: 

There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism."  Originalism is actually a family of constitutional theories, but two ideas are common to almost all versions of originalism.  The first idea is that the meaning of the constitutional text is fixed: the linguistic meaning of the words and phrases does not change over time.  The second idea is that the original meaning of the constitutional text is binding: judges and officials should consider themselves constrained by the text.

On the origins of originalism and the "New Originalism":

No one scholar or judge deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren Court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. The landscape changed again in the late 1980s, when Justice Antonin Scalia suggested that originalists should shift their attention from "the original intentions of the framers" to the "public meaning of the constitutional text" or "original meaning."

... [O]ne last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. One of the important moves was the shift from "original intentions" to "original public meaning," but two other developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court. (Ackerman does not call himself an "originalist," but many of Ackerman's former students do work that is implicitly or explicitly originalist.)  Second, Randy Barnett (the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists.  The most recent development in this dynamic is Jack Balkin's attempt to reconcile originalism with living constitutionalism.  Balkin's article, "Abortion and Original Meaning" (link provided below) elicited a good deal of commentary and criticism: his recent book, Living Originalism, further develops his take on originalist theory and applies it to a variety of topics.

And on "original public meaning":

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text. ...

08/23/2019

John McGinnis on Silent Originalism
Michael Ramsey

At Law and Liberty, John McGinnis:  Silent Originalism and the Reweighting of Precedent.  From the introduction: 

The most important practical question of originalism is how to deal with the huge number of non-originalist precedents. In its June decision in Rucho v. Common Cause, the Supreme Court showed one way: Refuse to give a flagrantly non-originalist precedent generative force while not overruling it or discussing it in any detail.

A five-member majority held in Rucho that political gerrymanders presented political questions that the Court would not disturb. Its majority reached the right result, although not as forthrightly as might be desired. There is no reason to raise the “political question” doctrine, since the federal constitutional case against gerrymander founders so clearly on the merits. The Fourteenth Amendment does not prevent states from imposing such gerrymanders. Indeed, as an original matter, the Fourteenth Amendment does not justify the Court’s “one-person, one-vote” decision in Reynolds v. Sims (1963), from which a decision prohibiting gerrymanders would have been an extension. Nevertheless, the gross legal infirmity of the reasoning in Reynolds was a silent factor influencing the Court’s Rucho decision.

Reynolds v. Sims, a Consciously Anti-Originalist Opinion

The original meaning of the Equal Protection Clause of the Fourteenth Amendment does not provide a rule of “one person, one vote”; indeed, it does not guarantee an individual right to vote at all. (The Guarantee Clause requires that states must provide a republican form of government, but at the Founding, republicanism was consistent with substantial restrictions on franchises for particular classes of individuals.) This reading is not a difficult or close one, but follows from the text of the amendment itself, the statements of its sponsors, and a subsequent amendment to the Constitution. ...

As a result:

It impossible to believe that any of the five justices in the majority of the Rucho Court would endorse the reasoning in Reynolds. While they did not overrule the latter, they refused to give it any generative force. They declined to extend the proposition that a citizen’s vote must not be diluted by formally unequal districts, to the proposition that it must not be diluted by effectively partisan districts.

And in conclusion: 

Rucho v. Common Cause provides an example of “silent originalism.” The Court does not revisit and overrule a precedent due to its inconsistency with originalism, but the precedent’s manifest inconsistency robs it of generative force. This decision shows that those who, like Professor David Strauss, consider constitutional law to be an essentially common law exercise in applying the Court’s own precedents rather than following the original meaning of the Constitution, miss something important. The strength of precedents depends on underlying theories about how the Constitution is to be interpreted. The rise of originalism is dramatically changing the weights that the Court gives to its precedents. And that reweighting can have the important effect seen in Rucho.

Agreed and endorsed.  I have some related thoughts from a while back in connection with the original meaning and modern application of the supremacy clause: The Supremacy Clause, Original Meaning, and Modern Law (arguing that it is possible to contain non-originalist precedents to their facts and basic implications without disrupting the coherence of modern law).

08/22/2019

Josh Blackman on Originalism in the Fifth Circult
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: The Fifth Circuit Divides on Qualified Immunity, and Originalism.  From the introduction:

Today the Fifth Circuit issued a divided en banc decision in Cole v. Hunter. The case considered whether two police officers who shot the Plaintiff were not entitled to qualified immunity. Nine out the sixteen active judges on the en banc court found that qualified immunity was not warranted. (Two senior judges who were on the original panel joined the majority.) Judges Ho and Oldham wrote a joint dissent, which was joined by Judge Smith (see pp. 54-64). Their decision warrants a careful study. It considers how lower court judges should, and should not be originalists.

First, the duo notes that modern qualified immunity doctrine has been criticized as "ahistorical and contrary to the Founders' Constitution." They cite Will Baude's article in the California Law Review, as well as a rejoinder from Aaron Nielson and Chris Walker.

Ho and Oldham, as lower-court judges, see no role in this debate:

As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

Second, Ho and Oldham highlight an important reason why originalism has gained so much salience in debates about criminal justice: it often operates as a one-way ratchet to help the accused, but not the police. Originalists on the right, and non-originalists on the left, are all-to-happy to form an alliance that advances these civil libertarian ends. Indeed, progressive groups have begun to craft "Gorsuch briefs" to peel off conservative votes on textualist grounds. ...

Plus much more, including a response from Judge Don Willett and a counter-response from Judges Ho and Oldham.

In conclusion: 

For some time, originalism existed primarily in the academy, and occasionally on the Supreme Court. No longer. As the number of originalist judges on the circuit courts continues to grow, these sorts of debates will occur with increasing frequency. I welcome these discussions, which I [that is, Professor Blackman] discuss in my new essay, Originalism and Stare Decisis in the Lower Courts.

08/21/2019

Matthew Steilen: The Constitutional Convention and Constitutional Change
Michael Ramsey

Matthew J. Steilen (State University of New York (SUNY) at Buffalo, Law School) has posted The Constitutional Convention and Constitutional Change: A Revisionist History (Lewis & Clark Law Review, forthcoming) (65 pages) on SSRN.  Here is the abstract: 

How do we change the federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes, and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland. 

Nearly everyone would agree, however, that most constitutional change is not formal constitutional change under Article V, but informal change — change by interpreting the Constitution, altering the workings of government, or even changing political practices. Because courts, executive agencies, and political parties do not represent the people the way conventions do, these mechanisms are sometimes said to be anti-democratic or even illegitimate methods of change. Yet they are dominant nonetheless. 

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and legislatures to be used for amendment, and, as it happens, all but one of the twenty-seven amendments to the Constitution have been made by legislatures. If conventions alone represent the people in their sovereign capacity, then why don’t we actually use them to change the federal Constitution? Are we to conclude that most of the amendments are in some way defective? 

To show why Article V might have permitted the use of legislatures to amend the Constitution, this paper examines a series of political texts on the convention, written between the seventeenth and eighteenth centuries. Writers in this line defended the power of Parliament or the American colonial assemblies to alter the frame of government. From their point of view, the people could be present in the legislature, and when they were, the legislature could establish fundamental law. 

This perspective helps to explain the rightful place of informal constitutional change in our system. The people can be represented by the institutions of government itself, and when they are, those institutions can claim an authority to alter the constitution. In this sense, the popular sovereignty described in McCulloch is dynamic: it can be present in different institutions at different times. Presidents have repeatedly claimed just this authority. From the perspective of the writers examined here, the legislature could too. It was when corruption stopped up legislative routes of popular constitutional change that the people could move outside government entirely, to a convention, where they might alter the constitution to better secure their property and liberty. 

The history set out here directly challenges the orthodox historical account, based largely on the work of Gordon Wood, that has dominated the legal academy for nearly 50 years. It focuses on the same key state — Pennsylvania — and argues in detail that Wood’s interpretation of the use of the convention there is incorrect. The paper emphasizes political context rather than ideology, and in so doing offers a more nuanced, and more realistic, view of the place of the convention in American constitutional change.

Via Larry Solum at Legal Theory Blog, where it is "Download of the Week" and "Highly Recommended."

08/20/2019

Corpus Linguistics and 2nd Amendment
David Weisberg

I agree completely with Neil Goldfarb’s conclusion that Heller was wrongly decided.  (My own reasoning is set forth in a paper, “A Unique, Stand-Alone Second Amendment Implies That Both Heller and McDonald Were Wrongly Decided,” available here on SSRN.) Nevertheless, I just as strongly disagree with his interpretation, based on corpus linguistics (“CL”), of the meaning of the Second Amendment.

Mr. Goldfarb’s Supreme Court brief asserts (at p. i) that CL “provides compelling reason to believe” that the Second Amendment was originally understood to protect “the right to serve in the militia, not a right of individual self-defense.”  The brief also states: “In light of that evidence [provided by CL], it is reasonable to conclude that the right to bear arms that the Second Amendment protects is a right that doesn’t merely relate to military service, but rather consists of the right to serve in the militia.” (p. 4, italics in original.)  

Thus, it seems fair to say that, from Mr. Goldfarb’s perspective, a proper CL interpretation of the Second Amendment’s original meaning would probably be: “The right of the people to serve in the well regulated Militia of a State, shall not be infringed.” 

The CL formulation raises two questions: one obvious, and one more subtle.  The obvious question: If that is what the framers meant, why isn’t that what they wrote?  They would have used 19 words (all of which are used in the actual amendment) rather than 27, and expressed themselves much more precisely to boot.  And the prefatory clause, which (as Justice Scalia noted) is unique to the Second Amendment, is rendered redundant and superfluous.  That the actual Second Amendment is very different from the CL interpretation suggests that that interpretation is a misinterpretation.

The more subtle question: Why is there a stand-alone Second Amendment at all?  If the CL interpretation is correct, the First  Amendment could have been drafted thusly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances; or infringing the right of the people to serve in the well regulated Militia of a State.

This formulation encompasses only 17 words, and the Bill of Rights would be condensed from ten amendments to nine.  So, why wasn’t the First Amendment framed in that way? 

The answer, in a tiny nutshell, is that the scope of “the right of the people to keep and bear arms” that is protected from federal infringement by the Second Amendment—and by “scope” I mean, e.g., whether or not the right is limited to keeping and bearing arms for service in the militia, or also includes self-defense, or also hunting, or also target practice, or etc.—is determined by each State’s law.  That is why the reference in the prefatory clause to “a free State” is important.  In contrast, the scope of each of the rights protected by the First Amendment (and also the rights protected in the Third thru Eighth Amendments) is not determined by any State’s law.  That difference makes it impossible to meld the Second into the First.

I think CL could never provide a satisfactory answer to either of the two questions I’ve highlighted.  I also believe that the key to a correct interpretation of the Second Amendment is an understanding of why it has the prefatory clause it has, and why the amendment as a whole stands alone.  That's why I think CL will never yield a correct interpretation of the Second.

Nelson Lund: The Destructive Legacy of McCulloch v. Maryland
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted The Destructive Legacy of McCulloch v. Maryland (McCulloch v. Maryland at 200, Gary J. Schmitt, ed. (forthcoming)) (36 pages). Here is the abstract:

McCulloch v. Maryland is probably the Supreme Court’s single most influential opinion, and certainly one of its most celebrated. As countless commentators have recognized, McCulloch’s importance arises from its doctrine of implied congressional powers, which has been applied even to constitutional amendments adopted decades after the McCulloch decision itself. Revered though it may now be, Chief Justice Marshall’s opinion provoked a hostile commotion when it was issued. So much so that he was moved to defend it in a series of anonymous newspaper essays. The opinion remained controversial for many years, and it deserves to become controversial once again.

Like Marshall, all of the current Justices can say that the abstract principle of limited and enumerated powers is “now universally admitted.” But the legacy of his opinion has been the effective destruction of that principle. McCulloch famously proclaimed that “we must never forget, that it is a constitution we are expounding.” This sonorous aphorism is frequently, if unnecessarily and improperly, taken to mean that it is merely a constitution, which judges are free (or obligated!) to amend under the guise of interpretation. That attitude has triumphed historically, and perhaps irrevocably. Constitutional law is widely regarded now as a branch of political philosophy or as a field on which to play junior varsity statesmanship. Or, not infrequently, as an arena for flamboyant moral posturing or as a weapon of partisan warfare.

Rather than submissively celebrate these developments, we could choose to stop forgetting that the Constitution was originally meant to be a law, and that it was meant to be more authoritative than what the Supreme Court says about it. If we did, McCulloch and its rank progeny would become controversial once again.

08/19/2019

The Original Meaning of Section I of Amendment XIV All in One Blog Post
Andrew Hyman

A primary purpose of Section One of the Fourteenth Amendment was to entrench, or establish a firmer constitutional basis for, various provisions in the Civil Rights Act of 1866.  The Citizenship Clause of the Fourteenth Amendment was modeled after the citizenship clause in the Civil Rights Act of 1866.  The framers of that statutory citizenship clause had worried that rights associated with statutory citizenship would be vague unless specified, and so they did specify them explicitly in that Act.  However, when it came time to write the Fourteenth Amendment later in 1866, those same legislators did not need to specify any rights of citizenship in the Fourteenth Amendment, because the whole-text canon of interpretation (described by the Eighth Circuit here) ensured that such specification of legal rights was already included elsewhere in the Constitution.  It is true that those older constitutional rights did not include all of the equality rights specified in the Civil Rights Act of 1866, but the Equal Protection Clause of the Fourteenth Amendment is broad enough to encompass every one of the equality rights listed in that Act; after all, the Act’s full title was “An Act to protect all Persons in the United States in their Civil Rights and liberties, and furnish the Means of their Vindication” (emphasis added).

With passage of the Fourteenth Amendment, the Citizenship Clause gave the freed slaves (and all other covered persons) benefit of every legal right that was already conferred by the federal Constitution upon white citizens, and Congress had probably never before the Fourteenth Amendment even attempted to define U.S. citizenship where it explicitly was mentioned in the Constitution (i.e. in the clauses regarding eligibility for federal office).  The Equal Protection Clause ensured that the freed slaves could also benefit from the equality rights specified in the Civil Rights Act of 1866.

The Equal Protection Clause has been correctly interpreted to extend way beyond matters of race (the clause does not mention race) but has been incorrectly interpreted in a way that shuts out Congress which was not the clause’s original meaning.  As Jonathan Mitchell (at pp. 1285-86) and myself (at p. 81) have both emphasized, the clause requires a state to provide equal protection “of the laws” rather than merely “of its laws,” and so federal statutes were meant to play a substantive role, alongside the judicial role of ensuring that Congress does not exceed its bounds.  If and when Congress does nothing under this clause, then a state is merely required to provide whatever meager equal protection its own laws may require, but Congress has implied power to ensure that whatever protection a state provides is provided equally.  Unfortunately, judges have written out the last three words of the clause, as Judge Jack Weinstein once inadvertently explained: “The Fourteenth Amendment to the United States Constitution provides that no state may deny equal protection to any person within its jurisdiction.”

As for the Privileges orImmunities Clause written in 1866, it simply gave to all U.S. citizens a guarantee that the rights conferred by the Citizenship Clause would bind the states, and not just the federal government.  In other words, the Citizenship Clause already implicitly guaranteed that the federal government would give people who are entitled to U.S. citizenship the "privileges or immunities of citizens of the United States," and the message of the next clause is simply that states must give them as well.  Unfortunately, the U.S. Supreme Court eventually construed this to mean that states must respect free speech only insofar as federal politics are being discussed, and must respect gun rights only insofar as the guns are used to carry out federal citizenship responsibilities, et cetera.  Taken to its logical conclusion, you may pray so long as you are praying for your federal government.  That absurd sort of limitation on Bill of Rights freedoms has no basis in anything anyone ever said during the period from 1866 to 1868 when the Fourteenth Amendment was drafted and ratified.

One occasionally hears that the Privileges or Immunities Clause does not include constitutional rights of persons, but by 1866 it was well-settled that the analogous Privileges and Immunities Clause of Article IV (sometimes called the Comity Clause) entitled visiting citizens from out-of-state to all fundamental rights of in-state citizens, without subtracting fundamental rights of in-state residents who were not citizens.  One also sometimes hears that the Privileges or Immunities Clause includes the vast array of unenumerated federal constitutional rights that citizens enjoy vis-à-vis the federal government in every state because of the limited nature of federal power, but actually those rights (and also certain enumerated constitutional rights that only apply within the states) are not enjoyed vis-à-vis the federal government in areas of plenary federal power such as the District of Columbia, and so they cannot be among the privileges or immunities of citizens of the United States.  Further, one sometimes hears that the Privileges or Immunities Clause includes a right to travel, but actually the Citizenship Clause (in particular its grant of state citizenship) reinforces the Comity Clause which grants to citizens visiting from out-of-state the same rights of ingress and egress as in-state citizens enjoy.  Notice that the Comity Clause does not apply to places like the District of Columbia, so it is not a nationwide federal legal right, and therefore is not a privilege or immunity of citizens of the United States; this clause was on shaky ground after the U.S. Supreme Court suggested in Kentucky v. Dennison (1861) that a state's compliance with Article IV may sometimes be optional, but the ability of Congress to enforce this clause was assured by Section 5 of the Fourteenth Amendment in conjunction with the Citizenship Clause’s grant of state citizenship (which impliedly includes the legal rights of state citizenship already contained in the whole text of the Constitution).

Finally, this brings us to the Due Process Clause, which of course replicated a clause in the Fifth Amendment.  That clause of the Fifth Amendment was obviously not incorporated against the states in 1868 via the Privileges or Immunities Clause as to non-citizens, and even as to citizens the Privileges or Immunities Clause did not prevent states from violating Bill of Rights liberties by methods other than making or enforcing laws.  That explains why the Due Process Clause was added, but does not explain what it means, which is a relatively easy mystery to solve.  

Originally, in England where this clause originated, “due process of law” meant judicial proceedings that are owed according to the law of the land, i.e. according to common law, customary law, or statute law (which was supreme).  But there were some misunderstandings about this subject in America during the Confederation period, and it came to be accepted that “due process” also meant judicial “procedures” (a narrower concept than judicial “proceedings” which may include substantive decisions) that are owed according to principles of liberty and justice (a broader concept than principles embodied in the law of the land).  The old English meaning and the newer American meaning both became accepted by the U.S. Supreme Court prior to the Civil War (instead of the word “procedure” the Court used the equivalent term “modes of proceeding”), but neither the Supreme Court nor the larger legal community as of 1866 predominantly accepted the hybrid notion pushed by some libertarians and state judges that “due process” should also mean substantive judicial proceedings that are owed according to principles of liberty and justice.  That latter hybrid notion, which is at once broader than the old English rule-of-law meaning and also broader than the procedural American meaning, ultimately caught on decades after the Fourteenth Amendment was adopted.  We are presently suffering with that hybrid doctrine (sometimes called “substantive due process”), and the judicial supremacy it implies, not only because of the gutting of the Privileges or Immunities Clause, but also because of either a mistaken belief that Chief Justice Taney employed such a doctrine in the infamous antebellum case of Dred Scott v. Sandford (1857), or because of a mistaken belief that Taney's alleged use of that doctrine should now be emulated.

Charles Barzun: Constructing Originalism (with Comments from Will Foster)
Michael Ramsey

I was going to give the Baude/Sachs thesis a rest for a while, but...

Charles L. Barzun (University of Virginia School of Law) has posted Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin (19 pages) on SSRN.  Here is the abstract: 

This Essay responds to Professors William Baude and Stephen Sachs’s recent article, Grounding Originalism, in which they offer replies to various criticisms I and others have made of the so-called “positive turn” in constitutional originalism. I argue that their replies still fail to address the core underlying problems plaguing their attempt to “ground” originalism in the legal positivism of H.L.A. Hart. In fact, their somewhat creative interpretation of Hart’s theory demonstrates even more clearly than did their earlier work that their true jurisprudential ally is the anti-positivist Ronald Dworkin.

Thanks to Will Foster for the pointer.  He comments: 

Prof. Barzun suggests in Part II of this fascinating paper that judges do not practice original-law originalism because "courts [do not] explicitly or implicitly demand (even if only indirectly)" that "constitutional and interpretive rules and methods trace their pedigree back to the founding" (p. 4). Barzun thinks many (although perhaps not all) judges "would not care much at all" if it turned out that "the customary features of an area of law developed slowly throughout the nineteenth century" and had no Founding-era pedigree (p. 7). I am not sure that is correct, and the following (admittedly fanciful) thought experiment shows the reason for my skepticism. Let's suppose the original Constitution of 1787 contained the following clause: "Nay Judgeth shalt maketh useth of any Precedent in any Opinion on a constitutional Questioneth." (I use hilariously archaic language here in order to make sure original meaning, and not modern meaning, is doing the work in the hypothetical.) Let's assume there are several dozen extant Founding-era writings from notable figures showing that this clause was understood to ban judges from relying on case precedents when construing constitutional provisions. Now, if stare decisis somehow managed to "develop[] slowly" over time among many judges, I find it hard to believe that "a good many [people] would not care much at all" (p. 7). I think virtually everyone would see stare decisis as an unlawful usurpation, precisely because most people would see that it contradicted the original meaning of the constitutional text. If people wanted to preserve the use of precedent in constitutional cases, they would advocate for an Article V amendment. 
 
Perhaps I am wrong about this. But if I'm right, then it seems Barzun's argument is weakened. In my view, the apparent strength of Barzun's argument in Part II of the paper comes from smuggling in the epistemic difficulties inherent in becoming convinced that some feature was or was not part of the Founders' law. It's often really, really hard to get people to change their deeply held beliefs, and that applies no less in the constitutional context than anywhere else. But that is not inconsistent with the further proposition that, if and when someone does change their beliefs about the content of the Founders' law, they will change their views about the propriety of current judicial doctrine. (It's worth noting that there are at least some real-world examples of people changing their constitutional beliefs due to new historical evidence -- just look at the Second Amendment, which even some liberal professors began to embrace as an individual right in the late 20th century.) 
 
Barzun's article also contains some more technical discussion of H.L.A. Hart's positivist philosophy. Interestingly, Barzun interprets Baude and Sachs as conceptualizing original-law originalism as a subordinate legal rule, and not "itself part of our rule of recognition at all" (p. 7). I confess I had always thought original-law originalism was itself the rule of recognition under Baude and Sachs' theory. Barzun, however, thinks Baude and Sachs believe "the rule of recognition in the US is what Baude and Sachs call 'the official story' of American law, which includes things like 'We treat the Constitution as a legal text, originally enacted in the late eighteenth century'" (p. 7). Yet, as Baude and Sachs state in their "Grounding Originalism" abstract, "our system’s official story is that we follow the law of the Founding, plus all lawful changes made since." The official story, in other words, is that we practice original-law originalism. (The fact that we treat the Constitution as an 18th-century legal text serves, along with various other facts, as evidence that establishes the official story of original-law originalism.) And I think legal officials do seem to treat original-law originalism as the rule of recognition, even if they often apply this rule incorrectly. 
 
Finally, Barzun includes some fascinating discussion of positive law in Nazi Germany, and also makes the provocative claim that Baude and Sachs' theory shares more of an affinity with Dworkin than Hart. Although I do have some thoughts on these matters, I will leave it to Baude and Sachs to respond, as I suspect they will do in their article "The Official Story," apparently coming "soonish." Ultimately, though I'm skeptical of some of Barzun's contentions, I still wholeheartedly recommend his important and delightfully readable article!  

08/18/2019

Jack Balkin: Translating the Constitution
Michael Ramsey

Jack M. Balkin (Yale University - Law School) has posted Translating the Constitution (43 pages) on SSRN.  Here is the abstract:

Lawrence Lessig's recent book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019), restates and expands his important and influential theory of interpretive fidelity as translation.

This book review is in three parts. Part One explains why, although Lessig's theory is based on fidelity to original meaning, his originalism is unlike most contemporary versions. Indeed, despite his metaphor of translation, Lessig is not really a textualist at all. Unlike most contemporary originalists, he pays relatively little attention to parsing the words of constitutional text, or to their history. Instead, he is a purposivist and structuralist, who argues that fidelity to purpose and structure in changed contexts may sometimes justify departing from the text or adding things to the text.

Part Two examines Lessig’s use of the concept of social meaning to explain and justify many of the Supreme Court’s most famous liberal decisions, including Brown v. Board of Education, the sex equality cases, the reproductive rights cases, and the gay rights cases. Lessig's concept of "social meaning" actually refers to changes in elite consensus among the relatively small groups of elites who form the audience for Supreme Court Justices. Lessig's arguments are an imaginative restatement of the American Legal Process tradition, but using a different vocabulary. In an age of polarized elites like today, however, Lessig's social meaning account threatens to break down, as Lessig himself recognizes.

Part Three considers whether a purely internalist theory of constitutional change like Lessig’s is adequate to explain the growth and development of the American Constitution. It argues that Lessig’s account of change relies too much on how the world looks to the Justices, rather than on how the world actually changes; it also relies too much on winner's history. His account could be made stronger by focusing on the role of political parties, social movements, and state-building in constitutional change; and the long-term construction of judicial review by the political branches. The result would no longer be purely internalist. But it might be a more powerful account of the complicated processes of constitutional change.

(Via Balkinization).

08/17/2019

John O. McGinnis: The Court, the Fed, and Our Mixed Regime
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law) has posted The Court, the Fed, and Our Mixed Regime (29 pages) on SSRN.  Here is the abstract: 

This essay argues that the enduring political concept of the mixed regime is a better way than the separation of powers to understand the operation and dilemmas of the two institutions most central to our market, rule-of-law society—the Supreme Court and the Federal Reserve. The theory of the mixed regime asserts that combining popular and aristocratic elements produces a more stable and flourishing polity than relying on democracy alone. In our regime that aristocracy is the intellectual professional elite who dominate the functioning and culture of these institutions and largely determine how they will change. But in a society that appears on its surface to be democratic, the mixed regime gives rise to similar dilemmas for both these institutions, such as a countermajoritarian nature that is in tension with popular will, an insulated decision making that is in tension with benefits of broader inputs, and a discretionary power that in tension with stability that a mixed regime is supposed to deliver. These dilemmas lead to periodic pressures for both institutions to subject themselves to rules, such as originalism for the Court and the Taylor Rule (a fixed formula for interest rate changes) for the Fed. Because intellectual elites ultimately protect the independence of both institutions and underwrite their stability, their growing polarization threatens to undermine the continuity and beneficence of our mixed regime.

08/16/2019

Kian Hudson on Originalism
Michael Ramsey

At Liberal Currents, Kian Hudson (Deputy Solicitor General of Indiana): Originalism: Its Problems and Its Promise.  Here is the introduction:

In 2016 federal prosecutors charged Terance Gamble with violating the federal law prohibiting felons from possessing firearms. Gamble’s case could hardly have been more run-of-the-mill; federal prosecutors bringthousands of these felon-in-possession cases each year. Yet Gamble argued that because he had already pleaded guilty in Alabama to a felon-in-possession charge arising from the same incident, the Fifth Amendment’s Double Jeopardy Clause (which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”) barred the subsequent federal prosecution. Supreme Court decisions going back to the mid-nineteenth century, however, have held that criminal statutes adopted by different sovereign authorities necessarily constitute different offenses and that the Constitution therefore permits consecutive state-federal or federal-state prosecutions. Gamble’s case, which the Supreme Court decided last June, asked the Court to reconsider this “separate sovereigns” doctrine.

Putting aside precedent (a crucial issue we’ll return to below), how should a judge approach such a question? One method—commended by Ilan Wurman’s A Debt Against the Living: An Introduction to Originalism—would ask whether the Double Jeopardy Clause was originally understood to prohibit a prosecution under federal law when the defendant has already been prosecuted for the same conduct under an otherwise-identical state law. Other options include asking, a la Richard Posner, whether the Double Jeopardy Clause could be interpreted to bar such prosecutions and whether it would be goodpolicy to do so. Or a judge might channel Ronald Dworkin and ask whether prohibiting subsequent prosecutions is more or less consistent with the Double Jeopardy Clause’s underlying principles.

Although these and other alternatives continue to have their proponents (especially in the legal academy), the originalism defended by Wurman and others is ascendant. Many of the Supreme Court’s decisions in the latter half of the twentieth century partake not so much in the structured discipline of a classical symphony as in the self-conscious improvisation of a free-style jazz session. Today, however, Republicans have elevated self-proclaimed originalists Neil Gorsuch and Brett Kavanaugh to the Supreme Court, and scores of other originalist-minded jurists have joined the lower state and federal courts. Originalism can even claim bipartisan support: Elena Kagan, President Barack Obama’s second Supreme Court appointee, declared to the Senate Judiciary Committee that “we are all originalists,” explaining that every judge seeks to “apply what they [the Framers] say, what they meant to do.”

Originalism is not without its detractors, of course. In his recent Liberal Currents review of Wurman’s book, Adam Rust reprises many of the common critiques. Notably, Rust declines to raise two of the most popular criticisms: he argues neither that originalism produces outcomes that are practically or morally unacceptable, nor that it improperly subjects modern Americans to rule by the dead hand of the past, as Thomas Jefferson once mused. Rust instead says originalism does not work even on its own terms: he argues originalism is (1) practically impossible, (2) too beset by internal disagreements to give judges concrete guidance, (3) unable to cabin judicial discretion, and (4) a cover for conservative policy preferences.

Some of these arguments point to genuine problems for originalism—and Rust does not even mention the problem of precedent, perhaps the single greatest difficulty confronting originalists today. Yet these problems simultaneously underscore one of the theory’s great virtues: the problems arise because originalist decisions can be wrong and can be shown to be so. Originalist decisions are, in other words, falsifiable. And they are so precisely because originalism obliges judges to ground their decisions in objective evidence regarding what the Constitution’s provisions were originally understood to mean. No theory of constitutional adjudication can make judges unbiased or omniscient. But originalism’s falsifiability gives it the resources to identify and correct decisions that are unsubstantiated, inconsistent, or unprincipled. The problems Rust has identified, far from undermining originalism, underscore its promise—that constitutional interpretation, like the Constitution itself, can slowly become “more perfect.”

And in conclusion:

Judges’ ability to mask policy choices—via precedent or anything else—is an intractable problem of constitutional law. Not even originalism can fully solve it. It cannot prevent even the most conscientious of judges from exercising policymaking discretion—not least because a properapplication of originalism will interpret some constitutional provisions to require judges to account for policy considerations in applying the law to facts.

But that does not mean that we should discard originalism and embrace forthright judicial policymaking. There is a reason why courts generally do not announce that they are vindicating their personal policy preferences (at least unless the law authorizes them to do so). The occasional hypocritical opinion is, we might say, the compliment judicial vice pays to jurisprudential virtue.

Originalism’s promise is not that it will ensure judges will always reach the right answer. Its promise, rather, is that it leads judges to at least ask the same question. And, as Gamble (and United States v. Haymond, another recent criminal case with dueling originalist opinions) demonstrates, this—rather more limited—promise is already being borne out.

As noted in the introduction, the essay is a response to Adam Rust's essay (also at Liberal Currents) reviewing Ilan Wurman's book: Original Leanings: Wurman’s Originalism as Judicial Activism.

(Thanks to Adam Gurri, editor-in-chief of Liberal Currents, for the pointer.  Both essays are outstanding, and on a personal note it's great to become acquainted with the Liberal Currents site, which I hadn't known about before and which has a range of interesting content).