The Originalism Blog

Stephanie Barclay: Replacing SmithMichael Ramsey

Stephanie H. Barclay (Notre Dame Law School) has posted Replacing Smith (Yale Law Journal, 2023) (37 pages) on SSRN.  Here is the abstract:

As the Supreme Court has sought to ground more of its constitutional jurisprudence in original understanding, it has signaled an interest in re-visiting Employment Division v. Smith, which overruled the use of strict scruti-ny for religious burdens caused by neutral and generally applicable laws. But what replacement doctrinal test would both be workable for courts to administer and consistent with constitutional text and Founding-era understandings? Some scholars and jurists have juxtaposed the traditional scrutiny test against a type of historically and textually grounded approach. But this Essay contends that such a juxtaposition creates a false dichotomy. While certain facets of Free Exercise rights warrant categorical or absolute protection (including those aspects that overlap with antiestablishment interests), the full scope of the Free Exercise right as originally understood is also consistent with presumptive protection that can be reflected through the use of judicial scrutiny. And that type of judicial scrutiny need not involve judicial balancing. To that end, this Essay defends a historically-grounded iteration of strict scrutiny that operates as an exclusionary norm rather than a balancing test. This Essay contends that such an approach can claim the benefits of both workability and consistency with original meaning.

(Via Larry Solum at Legal Theory Blog, where it is "Highly recommended" and "Download of the week.")

Saul Cornell on Revising the Bruen test in RahimiMichael Ramsey

At Slate, Saul Cornell (Fordham - History): How the Supreme Court’s Conservatives Can Solve Their Guns Dilemma Without Losing Face.  From the introduction:

In a spirited oral argument at the Supreme Court last month, the radical version of originalism championed by Justice Clarence Thomas was exposed as both unworkable and inconsistent with the historical meaning of the Second Amendment. The federal public defender charged with the unenviable task of protecting the right of Zackey Rahimi, a violent domestic abuser, to possess a firearm was eviscerated by the justices. From across the court’s ideological spectrum, Rahimi’s lawyer faced a barrage of hostile questions and searching criticisms that left him sputtering, struggling to articulate a coherent defense of his client’s right to own a firearm despite his violent past behavior. The Rahimi case was fast-tracked by the United States solicitor general’s office because of a poorly reasoned and historically flawed decision by the rogue U.S. Court of Appeals for the 5th Circuit, which asserted that the Founding generation would have balked at disarming domestic abusers. The 5th Circuit’s originalists effectively weaponized their ignorance of the facts of Anglo-American legal history to arrive at this absurd result.

Based on the questions hurled at Rahimi’s lawyer at oral argument, it seems likely the Supreme Court will reverse the 5th Circuit’s decision. What is less clear is how the high court will confront the underlying problems created by Thomas’ flawed framework in New York State Rifle and Pistol Association v. Bruen that led to the 5th Circuit ruling in favor of Rahimi.

The court has a rare opportunity to fix the problem it created without losing face. A path forward to resolving these problems was sketched by Solicitor General Elizabeth Prelogar in response to a question by Justice Elena Kagan. Prelogar outlined a minimalist set of clarifications the court needs to make to Bruen. ...

And from later on:

The other problem with the hyperliteralist approach to applying Bruen evidenced in both the California case and Rahimi is the failure to comprehend the role that common-law methods of keeping the peace played in the era of the Second Amendment. One of the primary means of regulating weapons in 1791, an era when there were no police forces, no administrative state, and most legal matters were handled locally by justices of the peace, was the use of a common-law tool: peace bonds. Modern bail bonds that require an individual to post a sum and forfeit it if they fail to appear in court are the direct lineal descendants of these legal instruments which have been supplanted by other legal tools but were once a common feature of American law. Although today most Americans are likely to encounter a justice of the peace in the context of civil marriage ceremonies, this office was once the most important agent of law enforcement. At the time of the Second Amendment, justices of the peace had broad powers to detain, search, disarm, and, if necessary, imprison those who carried deadly weapons in public contrary to common law. In the Founding era, traveling armed in public, apart from a list of recognized exceptions, violated the peace. Any justice of the peace could stop and question an individual traveling armed without proper cause, disarm them, and impose a peace bond. If the individual traveled armed again, without good cause, a higher bond would be imposed, and if the individual continued to violate the peace, they were disarmed and imprisoned.

Josh Blackman and Seth Barrett Tillman on the Colorado Section 3 ArgumentsMichael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman: Griswold v. Anderson: The Section 3 Case Before The Colorado Supreme Court. From the introduction:

On December 6, the Colorado Supreme Court heard oral argument in Griswold v. Anderson. In this case, a number of Colorado voters asked the Court to order the Colorado Secretary of State to remove Trump from the primary ballot. The trial court adopted our intellectual position: that the President is not an "Officer of the United States," and therefore is not subject to Section 3 of the Fourteenth Amendment. We did not file an amicus brief with the trial court. The trial court's decision was appealed directly to the Colorado Supreme Court, and we did file an amicus brief before that court. Our brief argued that Section 3 requires federal enforcement legislation, and that the President is not an "Officer of the United States" as that phrase is used in the Constitution of 1788 and Section 3. 

The arguments stretched more than two hours, perhaps as much as 1/3 of that time was devoted to the officer issue. The justices asked both sides probing questions, and seemed to understand the nuances of the textual arguments. We recognize that some well-known professors insist that this argument is frivolous and not even worth discussing. Indeed, at the Federalist Society National Lawyers Convention a few weeks ago, Judge Michael McConnell predicted that judges would not accept this argument. The Colorado Trial Court ruled exactly one week after McConnell's remarks.  ... [extensive discussion of the arguments follows.]

And in conclusion:

We make a few final points. We have been in this game for some time, and have seen virtually every argument. Nothing raised in this litigation has surprised us. Indeed, the reaction to our position has become familiar. Those who reflexively scoff at our argument are relying on normative judgments about how government ought to be structured. Of course, the Incompatibility Clause bars the President from serving in Congress. Of course, the Foreign Emoluments Clause applies to the President. Of course, Section 3 disqualifies a person from the presidency. These of course arguments start with the conclusion and then work their way backwards. 

Yet, these arguments are in many cases inconsistent with the reason why various constitutional provisions were drafted; they run head-long into contrary historical practices; and, perhaps, most importantly, cannot be reconciled with what people who lived much closer to ratification said about the Constitution. Instead of working backwards, we work forward. We start with a theory: the Constitution's text adopts a global divide between appointed officers and elected officials. "Officer of the United States" and "Office . . . under the United States" refer to appointed positions—although the two categories are not precisely the same. By contrast, when the Constitution's text applies to elected officials, it does not rely on general "office"- and "officer"-language. To quote Justice Barrett in Brackeen v. Haaland, what is your theory to explain the "office"- and "officer"-language in the Constitution?

The Justices raised many questions and issues: e.g., state election law, the political question doctrine, the meaning of "insurrection," and the interplay between the First Amendment and Section 3. But in this post, we will highlight some of the questions posed to both sides about the officer issue. We think these questions demonstrate why the officer-issue is, and always will be, one that requires careful legal judgment and cannot be dismissed out of hand. 

Jamie McWilliam: Negative OriginalismMichael Ramsey

Jamie G. McWilliam (J.D. Harvard '22) has posted Negative Originalism (76 Rutgers U.L. Rev. Comments 1 (2023)) (8 pages) on SSRN.  Here is the abstract:

Many critiques of originalism ultimately target its alleged failure to provide a noncontroversial outcome in every case. This essay suggests that the most powerful feature of originalism is not its ability to reach one determinant “original meaning,” all the time. Instead, casting the three primary theses of originalism—the interpretation-construction distinction, fixation thesis, and constraint principle—as tests for determining whether a given interpretation “fits” a given legal text in a Dworkinian sense reveals originalism’s more subtle function. That is, originalism serves primarily as a negative interpretative tool that narrows the scope of possible interpretations of a potentially infinitely underdetermined text, keeping judges faithful to the communicative content of the text.

Agreed!  This is an important often-overlooked argument for originalism.

Presidential Power and What the First Congress Did Not Do (Final)Michael Ramsey

My short essay Presidential Power and What the First Congress Did Not Do is now published in the Notre Dame Law Review Reflection, here (99 Notre Dame L. Rev. Reflection 47 (2023)) (19 pages).  Here is the abstract: 

Scholars, advocates, and judges have long debated the scope of the President’s “executive Power” under Article II, Section 1, of the Constitution. New articles by, among others, Professors Jean Galbraith, Julian Mortenson, Jed Shugerman, and Ilan Wurman have sharply rekindled those contentions, particularly with regard to the President’s power to remove executive officers and to conduct the foreign affairs of the United States. This Essay takes a close look at one piece of the executive power puzzle: what the First Congress did and did not do in 1789 regarding the powers of the President. Unlike prior accounts, which have devoted great effort to parsing congressional debates, it focuses specifically on the text of Congress’s 1789 enactments establishing the executive departments, with particular attention to what Congress did not do. The Essay further contrasts these enactments with earlier actions of the Confederation Congress and with the 1789 Congress’s amendment of the Northwest Ordinance. It finds that the nonactions of the First Congress support the view that the Constitution in Article II, Section 1, gave the President independent power over some aspects of foreign affairs and independent power to remove executive officers.

Thanks to everyone at the Law Review for excellent editing.

More on Moore from Steven CalabresiMichael Ramsey

At Volokh Conspiracy, Steven Calabresi: The Amar Brief in Moore Should Not Be Embraced: Part 2.  From the introduction:

In an earlier post on the Volokh Conspiracy, I described Professors Akhil Reed Amar's and Vikram David Amar's disagreement with an amicus brief that former Attorney General Edwin Meese III, Professor Gary Lawson, and I filed in Moore v. United States.  An issue in that case is whether a wealth tax is a "direct tax", which has to be apportioned among the states according to their respective populations.  The Amar brothers claim that the only things that are direct taxes are capitation (head) taxes and land taxes.  They say falsely that on their side they have George Washington, Alexander Hamilton, the three Supreme Court justices who wrote opinions in the 1796 case, Hylton v. United States, 3 U.S. 171, Abraham Lincoln, and Chief Justice John Roberts.  I completely and totally disagree.

First, all that George Washington did or said that is relevant to this case is that he asked Alexander Hamilton to defend in the Supreme Court a federal tax statute that said it imposed a duty, which is an indirect tax, on the use of carriages, which in the 1790's were luxury goods subject to duties in England and Massachusetts.  Washington expressed no opinion whatsoever on the line between direct and indirect taxes.

And from later on:

What really matters is what was said and understood at the state ratifying conventions since it was those conventions, and not the back room deals that were made about slavery at Philadelphia, which made the Constitution the supreme law of the land. Future Chief Justice John Marshall speaking at the Virginia Ratifying convention said: "The objects of direct taxes are well understood."  Marshal listed them as "Lands, slaves, stock [i.e., business capital] of all kinds, and a few other articles of domestic property."  Future Chief Justice Oliver Ellsworth speaking at the Connecticut Ratifying Convention said that targets of direct taxes included (he did not say "were limited to" the "tools of a man's business … necessary utensils of his family" thus corroborating Marshall's references to "stock" and "domestic property." After the Pennsylvania Ratifying Convention, delegates in the Anti-Federalist minority, which cared deeply about the direct/indirect taxes line, issued a statement that identified the subjects of direct taxes as those on polls (as confirmed by the Constitution) and on "land, cattle, trades, occupations, etc."  The "Federal Farmer", a highly regarded Anti-Federalist paper lists as objects of Congress power of direct taxation, "polls, lands, houses, labour, etc."  See generally, Robert Natelson, What the Constitution Means by "Duties, Imposts, and Excises" – and "Taxes" (Direct or Otherwise), 66 Case West. L. Rev. 297, 308-09 (2015).  See also Erik M. Jensen, The Apportionment of "Direct Taxes": Are Consumption Taxes Constitutional?, 97 Colum. L. Rev. 2334 (1997).

The Supreme Court oral argument in Moore is tomorrow (Tuesday, 12/5).

Christopher Green: Speech, Complicity, Scarcity, and Public AccommodationMichael Ramsey

Christopher R. Green (University of Mississippi - School of Law) has posted Speech, Complicity, Scarcity, and Public Accommodation (2023 Cato Supreme Court Review 93) (19 pages) on SSRN.  Here is the abstract:

303 Creative LLC v. Elenis is the Supreme Court’s second, but almost certainly not its last, case on the extent of state power to require wedding-related professionals to participate in same-sex wedding ceremonies or their accoutrements. Five years ago, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission held, in one of Justice Anthony Kennedy’s last opinions for the Court, that Colorado had been improperly hostile to baker Jack Phillips’s religious views in requiring him to design a cake for a same-sex wedding. This time, after limiting the question presented to free speech, the Court held that requiring Lorie Smith to prepare websites for same-sex weddings if she prepared them for traditional weddings would unconstitutionally compel her to speak, akin to requiring a group to salute the flag or to add discordant elements to its parade or its membership.

Rather than grounding Lorie Smith's rights in a First Amendment that was designed as a restriction on a federal government with limited responsibilities, the Court should have instead used the Privileges or Immunities Clause of the Fourteenth Amendment, which guarantees equal civil rights, including equal professional and entrepreneurial rights, for citizens of all religious and political creeds. When the next wedding-professionals case arrives at the Supreme Court, the justices should use the original meaning of the Fourteenth Amendment to reinvigorate traditional limits on the sorts of businesses affected with a public interest, particularly the Court's 1923 holding in Charles Wolff Packing that "one does not devote one’s property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public." In markets with no local scarcity, in which those planning same-sex weddings have complete and unfettered access to goods and services, there is no constitutionally-adequate or historically-grounded justification for denying those like Jack Philips and Lorie Smith access to the market to sell their services to willing customers. The 303 Creative dissenters' arguments to the contrary do not withstand careful scrutiny.

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

Christina Mulligan: Diverse Originalism, History & TraditionMichael Ramsey

Christina Mulligan (Brooklyn Law School) has posted Diverse Originalism, History & Tradition (Notre Dame Law Review, forthcoming) (20 pages) on SSRN.  Here is the abstract:

The Supreme Court’s NYSRPA v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen’s test actually fails to follow a public meaning originalist methodology. The Court focuses present-day constitutional interpreters on evidence of constitutional meaning that only reflects a portion of the public — the politically-empowered men who were in a position to pass legislation. Two unfortunate outcomes follow. First, by limiting potential evidence of public meaning so severely, the Court raises the risk that future decisions concerning regulations of arms will arrive at non-originalist results, both by the Supreme Court itself and by lower courts applying Bruen’s test. Second, by unnecessarily and incorrectly sending the message that the meaning of the Constitution to framing- and reconstruction-era white women and people of color doesn’t matter, the Bruen majority unnecessarily contributes to the narrative that originalism doesn’t care about these people, historically or today.

Agreed.  To the extent Bruen is rightly understood to limit its "history and tradition" inquiry to statutes passed in the relevant period, that seems too restrictive a methodology for a complete assessment of original meaning.

Michael Stern on Trump and Section 3 DisqualificationMichael Ramsey

At Point of Order, Michael Stern: Judge Wallace, Professor Lash, and the Unambiguous Language of Section Three.  From the beginning (of a long post):

Let’s now turn to one of the two questions Judge Wallace resolved [in he Colorado case] regarding the application of section 3 of the 14th amendment to the presidency: is the presidency an office which an “insurrectionist” (which we will use as a shorthand for someone who has violated his oath in the manner specified by section 3) is barred from holding? As you will recall, the text of section 3 provides:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

(emphasis added). The italicized words described the banned offices or positions (hereinafter “banned places”) which an insurrectionist may not hold, and you will notice that the presidency is not expressly mentioned, while both members of Congress and the comparatively trivial positions of presidential electors are.

Judge Wallace did not rely on the proposition, advanced by Professors Tillman and Blackman and much discussed on this blog, that the presidency is not an “office . . . under the United States.” Indeed, Tillman and Blackman themselves do not make this claim with respect to section 3 because, they say, there is a possibility of “linguistic drift” between the drafting and ratification of the original Constitution and the enactment of the 14th amendment. See Josh Blackman & Seth Barrett Tillman, Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, 15 N.Y.U.J. L. & Liberty 1, 25 (2021); see also id. at 54 (describing the issue of whether the phrase “office of the United States” in section 3 included the presidency as “contestable”).

Instead, the court seemed to accept that the presidency might literally be covered by the “catchall phrase” of “any office, civil or military, under the United States, or under any State,” but it explained that “[t]o lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because . . . Section Three explicitly lists all federal elected positions except the President and the Vice President.” Anderson v. Griswold, Case No. 2023CV32577, 2023 WL 8006216, slip op. at 96 (Dist. Ct., City and County of Denver, Colo., Nov. 27, 2023). It also placed weight on the fact that an earlier version of section 3 had explicitly covered the offices of president and vice president, noting that this “certainly suggests that the drafters intended to omit the office of the Presidency from the offices to be disqualified.” Id. at 97.

The court’s analysis, to put it charitably, is rather cursory. It does not discuss the meaning of “office under the United States” or the fact that this phrase and close variants appear multiple times in the original Constitution. It does not consider the understanding of the phrase at the time the 14th amendment was drafted and ratified, or how that understanding would have been influenced by official practice and interpretation over the eight decades prior to the ratification of the 14th amendment. It also fails to ask why the framers of the 14th amendment chose to enumerate senators, representatives, and presidential electors, while covering every other federal and state officeholder, from the chief justice of the Supreme Court to cabinet officers to governors and other elected state officers, in a “catchall phrase.”

The weight the court places on the fact that an early draft of section 3 explicitly lists the presidency and vice presidency also appears to be misplaced. A reader of the court’s opinion would get the impression that a proposed amendment was introduced with those offices expressly included and then that proposal was modified to remove them. The actual drafting history of section 3 was more complex. ...

The post goes on to discuss the drafting history in detail, with commentary on and criticism of Kurt Lash's draft The Meaning and Ambiguity of Section Three of the Fourteenth Amendment.

The author also has numerous other posts on the Section 3 issue earlier on the blog.

(Via Will Baude at Volokh Conspiracy).  

Saikrishna Prakash: Deciphering the Commander-in-Chief ClauseMichael Ramsey

Saikrishna Prakash (University of Virginia School of Law) has posted Deciphering the Commander-in-Chief Clause (Yale Law Journal, Vol. 133, No. 1, 2023) (98 pages) on SSRN.  Here is the abstract:

The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. Under such readings, the meaning of “commander in chief” is as obvious as it is unequivocal—it confers some measure of absolute and unchallengeable authority upon the President. Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief’s power begins and ends. In particular, establishing the Clause’s limits is an acute and persistent problem.

Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause’s elusive frontiers. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistently directed these commanders, often in quite intrusive ways. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the “first General and Admiral.” The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Nothing about the term “commander in chief” would have suggested such autonomy because previous chief commanders had lacked such independence. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them.

To be sure, the President is more than a mere general and admiral. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these other clauses.

How we read the Commander-in-Chief Clause matters. Without a sense of the Clause’s alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article’s assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause.

Curtis Bradley & Jack Goldsmith: Foreign Affairs, Nondelegation, and the Major Questions DoctrineMichael Ramsey

Curtis Bradley (University of Chicago Law School) & Jack Landman Goldsmith (Harvard Law School) have posted Foreign Affairs, Nondelegation, and the Major Questions Doctrine (University of Pennsylvania Law Review, forthcoming) (55 pages) on SSRN.  Here is the abstract:

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly in situations in which the recipient has independent constitutional power relating to the subject of a statutory delegation. The President has more independent constitutional power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have plenary power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a “foreign affairs” exception. After establishing this point, the Article identifies several ways in which independent power is relevant to the nondelegation doctrine, which we call situations of “redundant authorizations,” “unlocking authorizations,” and “independent discretion authorizations.” The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President’s independent powers. For others, the best defense of their constitutionality (assuming a reinvigoration of the nondelegation doctrine) likely stems from longstanding historical practice—that is, “historical gloss.” The Article concludes by considering the relevance of this analysis to the application of the “major questions doctrine,” and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.

The article has some connection with my forthcoming article (with co-author Matthew Waxman) Delegating War Powers.  Like Professors Bradley and Goldsmith, we argue against a generalized "foreign affairs" exception to the nondelegation doctrine and also note that there are particular areas where the President's independent powers (in our study, the power to conduct war, enforce the law and suppress insurrection) may make broad delegations more defensible.

Jarkesy on Wednesday, Plus Some Thoughts on RemovalMichael Ramsey

The Supreme Court's oral argument in Securities and Exchange Commission v. Jarkesy, a case with multiple issues of originalist interest, will be tomorrow, 11/29.  As Ronald Mann at SCOTUSblog describes it: 

[Jarkesy] will present a remarkable spectacle of three entirely distinct constitutional challenges to wholly disparate attributes of the SEC. Ordinarily, the ability of the justices to control their docket would allow them to wait on each question for the development of a circuit conflict and select a suitable case in which to resolve each issue. But in this case a bold (I did not say “rogue”) panel of the U.S. Court of Appeals for the 5th Circuit accepted all three arguments and invalidated three aspects of the SEC’s operations. To leave the decision unreviewed would force Congress to revise substantially the affected portions of the securities laws solely based on the opinion of one divided lower court panel – hence, the Supreme Court’s buffet of constitutional law topics on Wednesday morning. 

Here are the questions presented: 

(1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.

I don't have an originalist view on the specific removal question (#3 above) because I haven't looked into the details of how administrative law judges function.  But I do have an originalist view on presidential removal more generally, and since some fairly harsh things have been said about originalist methodology in connection with this issue recently, I thought it would be useful to briefly summarize the argument.

The basic originalist position I and others have defended is that Article II generally requires that the President have unrestricted removal authority over federal officers who exercise significant executive authority.  In my view (and I'm writing only for myself here), the argument has three main components.

(1) The text.  The core of the argument is textual rather than historical.  Article II, Section 1 says that "[t]he executive Power shall be vested in a President of the United States of America."  As Justice Scalia famously said in dissent in Morrison v. Olson, "this does not mean some of the executive power" (or, I would add, even most of the executive power) "but all of the executive power." (487 U.S. at 705)  And if it "shall be vested" in the President, then by obvious negative implication it shall not be vested in anyone who is not the President.  (As an aside, I don't attach any particular importance to the word "vested" here -- it would mean the same, I think, if it said "shall be exercised by".)  Of course, everyone at the time assumed Congress would provide officers to assist the President in exercising the executive power, as it surely couldn't be done by a single person.  But providing officers to assist in execution wouldn't be contrary to vesting executive power in the President so long as the President had the ability to control the officers -- a point reinforced by the President's duty in Article II, Section 3 to take care that the laws are faithfully executed.

To be sure, one could structure an executive branch differently.  A constitution could direct that the attorney general, for example, be entirely independent of the President.  But in that circumstance one would not say that the executive power is vested in the President, since much of the executive power would be in fact vested in the attorney general, beyond the President's control.  And the Constitution we actually have says that the the executive power "shall be" -- that is, must be -- vested in the President.

Various lawyers and law professors have offered ingenious arguments to show why Article II doesn't necessarily mean what it appears to say, but I don't find them persuasive.   They seem at most to show that the text could possibly be read to mean something different, not that it most plausibly (or even somewhat plausibly) could be. Nor do I understand what they think the consequences of their arguments are: could Congress create an office of attorney general with a lifetime appointment, removable only through impeachment?  In what sense would that structure be consistent with the direction that the executive power be vested, not in the Attorney General, but in the President?

In short, I think the text is sufficiently clear that only very strong history could overcome its apparent meaning.  The history, though, is ambiguous at best, and generally tends to confirm the most evident reading of the text.

(2) The English background.  The drafters of Article II likely had in mind Blackstone's description of the executive power, which emphasizes the unity of the monarch:

the executive part of government ... is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch.  Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay that the exigencies of state will afford. The King of England is therefore not only the chief, but properly the sole, magistrate of the nation: all others acting by commission from, and in due subordination to him. (vol. 1, pp. 242-43)

It's hard to read this description without concluding that the monarch had full control over executive officers, and the framers were presumably familiar with monarchs removing ministers and other high officials who displeased them.  Blackstone's description also contrasts sharply with his later description of the judicial power (sometimes described by other sources as a branch of the executive power), which Blackstone thought was rightly rendered independent by the Act of Settlement's limits on the crown's ability to remove judges.

Blackstone acknowledged in later chapters that the tenure of some local offices was limited by law or custom, and Professor Jed Shugerman has shown that in fact the situation was somewhat less coherent, with a patchwork of rules applying to various offices (a situation that may or may not have been full understood by the American framers).  But none of this seems to me to undermine the basic thrust of the passage quoted above -- that the ideal, at least, was a unitary model of the executive.

(3) Post-ratification practice and commentary.  The evidence from the early post-ratification period also has some ambiguities, but it generally supports the text's most apparent meaning (and in any event it does not point in the opposite direction).

(A) In 1789, when Congress was creating the executive departments, Madison and others expressed the view stated above -- that the President had constitutional authority to remove executive officers as part of the executive power and the take-care duty.  Madison of course was sometimes mistaken as to constitutional meaning, and others at the time disagreed.  But his argument reflects what someone close to the drafting thought about it, with additional weight given that, as a member of Congress, he was taking a view contrary to his institutional interest.  Further, while Congress debated the matter at great length, its ultimate products -- the statutes it enacted in 1789 -- are most consistent with Madison's reading.  (I say more on this point in a new article: Presidential Power and What the First Congress Did Not Do.)

(B) In practice, early Presidents beginning with Washington removed executive officers without statutory authorization, relying on their constitutional power.  Generally this practice did not provoke strong opposition on constitutional grounds, even when the removal was contested for other reasons (as with Washington's removal of James Monroe as ambassador to France).  And generally Congress in this period did not limit removal authority of officers with substantial executive power (although there are some episodes at the margins that may be difficult to characterize.)

In sum, while the history does not all point in the same direction, it tends to support the President's constitutional right of removal as to principal executive officers, and in any event it is not unambiguous enough to overcome the clear direction of the text.

(This is of course only a quick sketch, and each point could be elaborated with additional detail and further consideration of counterarguments.  The goal here, though, is only a quick sketch.)

 

Tanner Allread: The Specter of Indian Removal [Updated]Michael Ramsey

W. Tanner Allread (J.D. '22, Stanford Law School; Ph.D. Candidate in History, Stanford University) has posted The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law (123 Colum. L. Rev. 1533 (2023)) (78 pages) on SSRN.  Here is the abstract:

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.

This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.

This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism arguments.

UPDATE:  At Legal Theory Blog, it is "Download of the Week" and Larry Solum says "Highly recommended".

Josh Blackman on Second Thoughts on Rahimi [Updated]Michael Ramsey

At Volokh Conspiracy, Josh Blackman: A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit.  From the introduction: 

The conventional wisdom is that the Supreme Court will certainly reverse the Fifth Circuit in Rahimi. Indeed I've voiced that position myself several times, especially in light of a potential grant in Range. (The New York Times picked up Justice Barrett's question). But let me challenge that conventional wisdom: an opinion reversing Rahimi will be tougher to write than most critics will admit.

Let's start with a premise: Rahimi was a faithful application of Bruen. Efforts to "clarify" Bruen are really an attempt to rewrite the precedent. I don't think anyone seriously doubts this premise. Now the reason why the Court may "clarify" Bruen is because certain members of the Court don't like the results that it yields: namely, that a dangerous person like Rahimi can possess a firearm. Again, the correctness of the Bruen precedent should be able to stand without regard to how it may be applied in future cases. But that's where we are. Some members of the Court who profess to be originalists are still motivated by consequentialism. And these concerns came out loud and clear during oral argument.

Still, there is a long time between November and June. A majority opinion has to be written. And that opinion will have to navigate an issue that didn't get much attention during oral argument: what other constitutional rights should dangerous people lose? Certainly this case can't just be about guns.

One of my first published articles, The Constitutionality of Social Cost, was published in the Harvard Journal of Law & Public Policy in 2011. I had started thinking about the topic in 2009, before McDonald v. Chicago was decided. The basic premise of my article was that there are many dangerous rights, and the Second Amendment was not an outlier....

UPDATE:  Will Baude has a contrary view: It's Not So Hard to Write an Opinion Following Bruen and Reversing in Rahimi.  In conclusion:

In general, I do think there is a campaign to get the Court to walk back from the test it set forth in Bruen, as the right to keep and bear arms is generally quite unpopular among lawyers and policymakers. But not every decision upholding a regulation against facial challenges in fact reflects such a retreat from Bruen. And the Court's decision in Rahimi need not be such a retreat, so it seems premature to conclude that it would be.

Stephen Sachs: Life After ErieMichael Ramsey

Stephen E. Sachs (Harvard Law School) has posted Life After Erie (17 pages) on SSRN.  Here is the abstract:

Erie Railroad Co. v. Tompkins is the most important case that no one who isn’t a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts. That proposition is often false. But the problem with Erie isn’t this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but “a particular way of looking at law.” Erie rejected a category of law—sometimes called general common law, or just “general law”—which was fundamental to our federal system, and the absence of which has left us unable to understand basic aspects of American jurisprudence.

This lecture, delivered on the occasion of the author’s appointment as Antonin Scalia Professor of Law, explores what life will look like after Erie—how the law will operate on the happy and glorious day when Erie has been overturned. This is not a prediction that Erie will be overturned. Though some legal seismologists have discerned rumblings in that direction, we have no guarantee that courts will get things right: the arc of jurisprudence does not always bend toward intellectual coherence. Rather than make predictions, it sets out a research agenda, attempting to think through some of the problems overruling Erie may pose—so that when the time comes to reconsider Erie, those who do so will have a clear path to follow.

The most important feature of life after Erie may not be any particular doctrines the courts enforce, but the attitude with which they enforce them. To reject Erie is to recognize, as Francis Bacon put it, and as Justice Scalia noted in Rogers v. Tennessee, that the judge’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” When this power to make law is conferred by a statute or a constitution, maybe a judge can lawfully wield it. But one hopes that, after Erie, we will recognize this authority as one that no officials, least of all judges, have any right to arrogate to themselves.

Peter Walliston on Trump and Section 3Michael Ramsey

At Law & Liberty, Peter Walliston: The Fraught Question of Eligibility.  From the introduction: 

The upcoming presidential election will be one of the most important—and fraught—in our history, largely because of the questions that have been raised about Donald Trump’s eligibility to run for a second term as president.

The most authoritative foundation for these questions is a scholarly paper based on the language of Section 3 of the Fourteenth Amendment to the Constitution written by two conservative constitutional scholars, William Baude and Michael Stokes Paulson. The original work, which I have summarized here, is probably too long and its argument too detailed for most readers, but the summary should make its fundamental elements clear. The summary also contains commentary by Josh Blackman and Seth Barrett Tillman, who disagree with Baude and Paulsen in certain respects.

Recently, Law & Liberty published an excellent discussion by Professor Kurt T. Lash about the ambiguities in the language and legislative history of Section 3 of the Fourteenth Amendment, and this points to the difficulties that the US courts will have in deciding whether former President Trump is eligible to run for a second term. Unfortunately, the more difficulty the courts have in writing a persuasive opinion one way or the other, the more controversy and discord in our politics will result.

...

Peril lies on both sides of the issue. A decision that deprives many Americans of an opportunity to vote for their preferred candidate could do lasting damage to trust in American democracy. Declaring Trump ineligible for the presidency would completely alter the current presidential race, including the views of many about whether the United States is a legitimate democracy and whether the president ultimately elected is a legitimate holder of the office. Without a fully persuasive reason for taking this step, the adverse consequences for the country could be substantial.

On the other hand, failing to apply the law fully and fairly to Donald Trump could destroy many Americans’ faith in the Constitution, the Supreme Court, and the legal system generally. Many will be persuaded that the Court was intimidated by a mob and failed to do its duty, or was pushed in that direction by the conservatives on the Court, three of whom were appointed by Donald Trump himself. It might even be seen as a roadmap that will enable future presidents—after denying that they lost an election—to take steps like those taken by Mr. Trump to stir major demonstrations in Washington or elsewhere.

After addressing several of the key issues, in conclusion: 

All this shows how difficult it will be for the courts—and especially the Supreme Court, which will make the final decision—to be sure about the answer, and the less sure the answer the more controversy will roil this country. 

It’s a cliché that our country is very divided today, and the question of Trump’s eligibility to run for president will only add to these divisions. Still, every American should try to understand the legal issues that the courts will face in making this extremely controversial decision, and seek out the true meaning of the Constitution, regardless of partisan inclination.

Colorado Court: The President is not an "Officer of the United States" [Updated]Michael Ramsey

From the Colorado State District Court for Denver, Judge Sarah Wallace, in Anderson v. Griswold (footnotes and paragraph numbers omitted): 

Intervenors argue that five constitutional provisions show that the President is not an “officer of the United States.”

• The Appointments Clause in Article II, Section 2, Clause 2 distinguishes between the President and officers of the United States. Specifically, the Appointments Clause states that the President “shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” U.S. CONST. art. II, § 2, cl. 2.

• The Impeachment Clause in Article II, Section 4 separates the President and Vice President from the category of “civil Officers of the United States:” “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. CONST. art. II, § 4.

• The Commissions Clause in Article II, Section 3 specifies that the President “shall Commission all the Officers of the United States.” U.S. CONST. art. II, § 3. 

• In the Oath and Affirmation Clause of Article VI, Clause 3, the President is explicitly absent from the enumerated list of persons the clause requires to take an oath to support the Constitution. The list includes “[t]he Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” US. CONST. art. VI, cl. 3.

• Article VI provides further support for distinguishing the President from “Officers of the United States” because the oath taken by the President under Article II, Section 1, Clause 8 is not the same as the oath prescribed for officers of the United States under Article VI, Clause 3.

The Court agrees with Intervenors that all five of those Constitutional provisions lead towards the same conclusion—that the drafters of the Section Three of the Fourteenth Amendment did not intend to include the President as “an officer of the United States.”  

Here, after considering the arguments on both sides, the Court is persuaded that “officers of the United States” did not include the President of the United States. While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to “support” the Constitution whereas the Presidential oath is to “preserve, protect and defend” the Constitution, it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath.

...

As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

The court also held that the presidency is not an "officer under the Constitution" for purposes of Section 3.

(Thanks to Josh Blackman at Volokh Conspiracy and Seth Barrett Tillman for the pointer, and congratulations to them as scholarly advocates of this position).

Two quick thoughts, not on the merits:

(1) I wish, in an analysis like this, that courts would not say things like "the drafters of Section Three did not intend to include ..."  It's an excellent textual analysis.  It makes a good case as to the text's original meaning.  It doesn't (and needn't) show anything about the drafters' intent.

But the court makes up for it with this footnote (footnote 20):  

Whether this omission [of the President from Section 3] was intentional, or an oversight is not for this Court to decide. It may very well have been an oversight because to the Court’s knowledge Trump is the first President of the United States who had not previously taken an oath of office.

Agreed and well put.  There are likely lots of oversights in the Constitution, as to details like this.  Doesn't matter.  The text means what it means, regardless of the drafters' intent.

(2) The court emphasizes the need for caution in the face of uncertainty:

To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). 

Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.

I've become increasingly inclined to this view as a general matter -- that is, courts should not intervene on constitutional issues unless the Constitution's direction is reasonably clear.  (Though, to be clear, I think it is reasonably clear more often than many people do.)

UPDATE:  At Balkinization, Mark Graber has an extended response, beginning:

Researching whether the persons responsible for Section Three of the Fourteenth Amendment thought the president was an officer of the United States is a bit like researching whether George Washington had five fingers on his right hand.  No one ever says so directly because the point is obvious.  But when you do the research, you discover quotation after quotation in the last half of the 1860s that the president is an officer of the United States, quotation after quotation that Republicans thought Section Three of the Fourteenth Amendment covered all federal officers, and quotation after quotation that they did not distin[guish] between the various oaths covered by the Constitution. ...

Liam Cronan: The Dutch Origins of the Foreign Emoluments ClauseMichael Ramsey

Liam Cronan (JD/MA in History, Boston University) has posted “In Defiance of Gifts”: The Dutch Origins of the Foreign Emoluments Clause (43 pages) on SSRN.  Here is the abstract:

If any lessons have emerged from the intersection of law and politics over the past half-decade, it is that the problems with and accusations of corruption—and the question of what precisely corruption means under the law—are now a mainstay of American political life. Examples are rife on both sides of the political aisle, from former President Trump’s international business dealings to the Biden Family’s connections in Ukraine to recent corruption charges against U.S. Senator Bob Menendez. This paper intends to employ the first of these, former President Trump’s business dealings, as a lens through which to understand corruption as a constitutional issue—and more specifically, the constitutional problem of foreign emoluments.

In 2017, the United States District Court for the Southern District of New York interpreted a clause in the Constitution that had, until then, been relegated among the Constitution’s “odd clauses:” Article I, Section 8, Clause 9 and its “Foreign Emoluments Clause” provision. Because of a clear “lack of precedent” on this matter, federal courts soon parsed law review articles, the Federalist Papers, letters from figures such as George Washington and James Madison, and the records of the Constitutional Convention to determine the Clause’s proper application, emphasizing the importance of “looking to historical practices” to “determine the original meaning” of the Clause. Their attempts resulted in a subtle split among circuits and left open a series of questions about the Clause’s meaning. But one source of original meaning, yet unmentioned in any case law, may aid in answering these: seventeenth-century Dutch law.

While many sources have since noted that Dutch law is the “likely” or “apparent” origin of the Clause, no scholarship has attempted to prove this through any serious interrogation of primary source materials. This paper is the first to do so. This paper traces an idea—that government officers may be barred from accepting gifts—from the Constitution we know today to the letters, speeches, and writings of the Framers to Dutch jurisprudence and the 1651 Dutch law itself. It will explore how the Framers first discovered this legal concept and how it can again function as a critical source of understanding for the Clause.

(Via Dan Ernst at Legal History Blog.)

Steven Calabresi on the Amars' Brief in Moore v. United StatesMichael Ramsey

At Volokh Conspiracy, Steven Calabresi: The Amar Brief in Moore v. United States Should Not be Embraced.  From the introduction: 

The constitutional question in Moore v. United States is whether wealth taxes and taxes on unrealized capital gains have to be apportioned among the states based on their respective populations, which it is practically impossible to do, or whether wealth taxes and taxes on unrealized capital gains have to be merely uniform in every state, which could be easily accomplished.  Ed Meese, Gary Lawson, and I argue that such taxes are direct taxes, which must be apportioned among the states, while the Amar brothers say they are indirect taxes that must merely be uniform among the states, which would make them much easier to enact.

The Taxing Power itself is granted in Article I, Section 8, Clause 1, which says:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."

Article I, Section 9, Clause 4 then critically limits the federal taxing power by saying that:

"No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

The rule of apportionment thus applies to "direct taxes"; the rule of uniformity applies only to such indirect taxes as "Duties, Imposts, and Excises.

The flaw in the Amar brothers' brief that I will discuss today is that it construes the text of the Constitution according to the expected applications of certain historical figures rather than its plain objective meaning.  The Amar brothers rewrite Article I, Section 9, Clause 4 to say:

"No Capitation, or Land Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

They argue that wealth taxes and taxes on unrealized capital gains in your house or Vanguard fund are perfectly constitutional.  They say, contrary to the text of the Constitution, that Article I, Section 9, Clause 4 bans only federal capitation and land taxes and that nothing else is a direct tax.

The post continues:

The original public meaning of the words "direct tax" is clearly set forth in two law review articles: Robert Natelson, What the Constitution Means by "Duties, Imposts, and Excises"— and "Taxes" (Direct or Otherwise), 66 Case West. U. L. Rev. 297 (2015) and Erik M. Jensen, The Apportionment of "Direct Taxes": Are Consumption Taxes Constitutional?, 97 Colum. L. Rev. 2334 (1997).  Both authors conclude that "direct taxes" included many more taxes than merely a capitation or federal land tax.

Natelson demonstrates conclusively that the phrase "direct taxes" also included taxes on:

"1) Wealth employed in business and domestic life.  Direct taxes included those imposed on land, improvements to land, ('stock in trade'), business equipment, and livestock; 2) Personal and business income.  Direct taxes included levies on rents, business profits, wages, interest, and other income; 3) Business enterprises.  Levies on business profits and occupational fees were direct taxes; 4) Heads.  Poll taxes, also called head taxes or capitations, existed in all of the New England states and in most other states as well.  They were levied both on free persons and slaves.  Capitations were the prevalent way of taxing slaves."  Natelson, supra at 314-316.

Seems right to me.  For my thoughts on the Amar brief and Ware v. Hylton, see here.  I don't think this necessarily means the Moores win, though.

Cass Sunstein Misunderstands Original Methods OriginalismMike Rappaport

Over at Law and Liberty, John McGinnis has reviewed Cass Sunstein’s new book on constitutional interpretation.  Mike Ramsey already posted on the review here.

I just wanted to highlight an important aspect of McGinnis's review that points out a serious mistake by Sunstein.  McGinnis writes that Sunstein:

gets Mike Rappaport’s and my views about originalism wrong in multiple ways. He describes our original methods originalism as follows: “Some people think that the Constitution must be interpreted in a way that is consistent with the ratifiers’ views about how it should be interpreted. On that view, judges need to follow the ratifiers’ theory of interpretation. If the ratifiers believed that judges should follow the original public meaning, judges must follow the original public meaning.”

But that summary is wholly inaccurate. We do not conclude that interpreters are bound to follow what the ratifiers believed the interpretive rules to be. As we say in Originalism and the Good Constitution, “Under an original public meaning foundation, the interpretive rules are those that an informed observer would have reasonably believed applied to the Constitution.” What various ratifiers believed might be evidence of the interpretive rules but they do not determine their content.

Nor do we assert that an answer to an interpretive question depends on what the ratifiers believed, as Sunstein appears to think. The answer to an interpretive question would depend on what an informed observer with knowledge of the interpretive rules would believe the answer to be. It follows that Sunstein is also wrong to think that we believe that “if ratifiers did not have a view about how the Constitution should be interpreted we are stuck; we just have a gap.” Indeed, we have argued, to the contrary, that the Constitution contains no gaps of which we are aware. The breadth of Sunstein’s misunderstanding about us should make readers cautious about crediting his descriptions of competing theories.

It is disappointing to have one’s views (unintentionally) misrepresented by an expert on constitutional interpretation.  Of course, if one publishes as much as Sunstein does, it is not surprising that mistakes are going to emerge.  

Laurence Claus: Tyranny of the OneMichael Ramsey

Laurence Claus (University of San Diego School of Law) has posted Tyranny of the One (38 Constitutional Commentary (forthcoming 2023-24)) (31 pages) on SSRN.  Here is the abstract:

In Tyranny of the Minority, Steven Levitsky and Daniel Ziblatt [ed.: Penguin Random House 2023, available here]call for a major overhaul of the American political system. Through well chosen stories in both this book and their earlier How Democracies Die, they show how readily threats to democracy can emerge from inside both American-style presidential systems and British-style prime ministerial ones. Yet their recommended changes come up short, because they would not stop an elected chief executive from using the tools of the job to make temporary power permanent. A recent stress test in Switzerland confirms what almost two centuries of Swiss constitutional experience suggest: the best defense against a charismatic candidate who wants to seize power and might subvert the system is not to let one person be chief executive. This review article examines the resilience of Swiss democracy’s plural executive, shows how glib and flimsy were the arguments relied on by constitution designers elsewhere to dismiss executive power sharing, and shines a spotlight on the real reason that so far only Switzerland governs without one person at the top.

And here is the book description from the publisher: 

America is undergoing a massive experiment: It is moving, in fits and starts, toward a multiracial democracy, something few societies have ever done. But the prospect of change has sparked an authoritarian backlash that threatens the very foundations of our political system. Why is democracy under assault here, and not in other wealthy, diversifying nations? And what can we do to save it?

With the clarity and brilliance that made their first book, How Democracies Die, a global bestseller, Harvard professors Steven Levitsky and Daniel Ziblatt offer a coherent framework for understanding these volatile times. They draw on a wealth of examples—from 1930s France to present-day Thailand—to explain why and how political parties turn against democracy. They then show how our Constitution makes us uniquely vulnerable to attacks from within: It is a pernicious enabler of minority rule, allowing partisan minorities to consistently thwart and even rule over popular majorities. Most modern democracies—from Germany and Sweden to Argentina and New Zealand—have eliminated outdated institutions like elite upper chambers, indirect elections, and lifetime tenure for judges. The United States lags dangerously behind.

In this revelatory book, Levitsky and Ziblatt issue an urgent call to reform our politics. It’s a daunting task, but we have remade our country before—most notably, after the Civil War and during the Progressive Era. And now we are at a crossroads: America will either become a multiracial democracy or cease to be a democracy at all.

I think my review of the book would have been somewhat more negative than Professor Claus', but I agree with him (Claus) that the authors' proposed solutions don't really get at the problem -- and, in fact, by undermining checks and balances and promoting rule by bare majorities, they may make the problem worse.

Professor Claus' suggestion -- a plural executive on the Swiss model -- is interesting, especially because, as he recounts, it was a viable option at the 1787 Constitutional Convention that might have prevailed if the delegates hadn't had the obvious candidate for the single executive, George Washington, in mind (and in the room).

I also think it's worth noting the significance of the 22nd Amendment in our constitutional system.  It gets my vote for the most underappreciated amendment.  True, the U.S. didn't see a threat of strongman leadership before the Amendment, but the risk was there.  I think the risk is mitigated by the presidential term limit, which assures us (as much as any constitutional rule can) that the presidency is not a permanent position.

Presidential Power and What the First Congress Did Not Do [Updated]Michael Ramsey

I've posted my new essay Presidential Power and What the First Congress Did Not Do (99 Notre Dame Law Review Reflection (forthcoming 2023)) (20 pages) on SSRN.  Here is the abstract:

Scholars, advocates, and judges have long debated the scope of the President’s “executive Power” under Article II, Section 1, of the Constitution. New articles by, among others, Professors Jean Galbraith, Julian Mortenson, Jed Shugerman, and Ilan Wurman have sharply rekindled those contentions, particularly with regard to the President’s power to remove executive officers and to conduct the foreign affairs of the United States. This Essay takes a close look at one piece of the executive power puzzle: what the First Congress did and did not do in 1789 regarding the powers of the President. Unlike prior accounts, which have devoted great effort to parsing congressional debates, it focuses specifically on the text of Congress’s 1789 enactments establishing the executive departments, with particular attention to what Congress did not do. The Essay further contrasts these enactments with earlier actions of the Confederation Congress and with the 1789 Congress’s amendment of the Northwest Ordinance. It finds that the nonactions of the First Congress support the view that the Constitution in Article II, Section 1, gave the President independent power over some aspects of foreign affairs and independent power to remove executive officers.

It's short!  (Much shorter than this one.)  Comments welcome.

Also, shouldn't "nonactions" be hyphenated?  That's what spellcheck says, but the editors were not persuaded.

UPDATE:  At Legal Theory Blog, Larry Solum makes it the "Download of the Week."  Thanks! (But it was a slow week.)

William Baude & Samuel Bray: Proper Parties, Proper ReliefMichael Ramsey

Recently published, in the Harvard Law Review: William Baude (Chicago) & Samuel Bray (Notre Dame): Proper Parties, Proper Relief (137 Harv. L. Rev. 132 (2023)).  Here is the introduction (footnotes omitted):

In the last Term at the United States Supreme Court, standing was the critical question in several major cases: the two challenges to the Biden Administration’s first student loan forgiveness plan, Biden v. Nebraska and Department of Education v. Brown, as well as the challenge to the Administration’s immigration priorities in United States v. Texas and the race-discrimination challenge to the Indian Child Welfare Act in Haaland v. Brackeen. Standing has featured heavily in journalistic coverage of the decision in 303 Creative LLC v. Elenis. And standing may have been the reason for the Court’s stay of a lower court decision about the legality of the abortion drug mifepristone.

The centrality of standing doctrine in contemporary U.S. law has many sources. One is procedural fusion, with the consequent loss of law and equity’s distinctive formal structures. Another is a gradual shift over the twentieth century: from having public law questions answered defensively, when the law was being enforced against someone; to having such questions answered offensively, via suits for injunctions and declaratory judgments. Yet another is the shift beginning in the 1970s toward expansive preenforcement review of agency rules. Still other reasons standing has become more central are doctrinal developments of the 1970s, not all of which have survived on their own: easy implication of statutory causes of action, the shift to enforcing public law rights primarily through injunctions rather than damages, and the growth of structural injunctions. All of these developments from the twentieth century put greater pressure on standing doctrine, as courts increasingly came to use it as a filter for the cases to be decided.

But one more source is especially important for the centrality of standing in the twenty-first century: the role of states as litigants against the federal government. There is an institutional side to the story, including a dramatic infusion of resources and expertise into the offices of state solicitors general. And there is a doctrinal side, especially the Supreme Court’s decision in Massachusetts v. EPA. In that case, a narrow majority of the Court read state standing broadly, saying states were to be given “special solicitude in our standing analysis.” The consequences have been predictable. In just the last decade and a half, states have come to dominate the public law scene. States — often large coalitions of states, all represented by attorneys general from the opposite political party of the President — now file suits challenging any important action taken by the executive branch.

The last decade and a half is not normal. Measured by the yardstick of the first two centuries of constitutional cases, it is not typical for so many of our major public law cases to have names like United States v. Texas and Biden v. Nebraska. The landmark decisions of our history, cases like Dred Scott v. Sandford and Youngstown Sheet & Tube Co. v. Sawyer, have not typically had state plaintiffs. If those cases had been decided in the twenty-first century, they might have been called Massachusetts v. Buchanan and Ohio v. Truman.

Although the new state standing has transformed the federal courts and reshaped their relationship to the executive branch, these transformations might prove temporary. This past Term at the Supreme Court saw what seems to be a deliberate turn by the Justices away from expansive conceptions of state standing. But it remains unclear whether the Court grasps the larger purpose of having a doctrine of standing, and whether it internalizes that purpose or treats standing doctrine as a box to be checked.

And from the section titled "Basic Principles":

Over the past fifty years, courts have developed an elaborate doctrine of “standing” to sue. This doctrine sometimes seems rootless, and it is often criticized as highly malleable. In elaborating standing, courts have run through various tests and terms, and even the term “standing” itself emerged only in the middle of the twentieth century. But the modern doctrine of standing is only the surface. Beneath it, and other current doctrines of procedure, jurisdiction, and remedies, lie older, more foundational principles.

Article III of the Constitution vests the federal judiciary with “judicial Power” to decide an enumerated range of “Cases” and “Controversies.” Since the Founding, members of the Supreme Court have insisted that this means that they must act through certain forms — they cannot issue advisory opinions in response to executive inquiry, and they cannot opine on disputes when they do not have the power to issue binding relief. Federal courts cannot decide cases without litigants, or without remedies to award.

In other words, Article III requires the proper parties, seeking proper relief. This logic has driven various permutations of justiciability doctrines. It explains why courts would classically reject cases without the real party in interest, or parties of necessary importance. It explains why courts would not decide what they called “political questions” — meaning cases where the relief was effectively within the jurisdiction of the political branches and not the courts. It explains why courts would not issue judgments against nonconsenting sovereigns — they were not proper parties against whom proper relief could be issued.

In conclusion:

Yet as courts have come to govern so much of our political life, and as so many of us have come to expect them to do so, standing doctrine and its corresponding view of judicial power will always be under pressure. Unconstrained by such niceties, there is so much more a judge could do! This Term suggests that the Court is trying to nudge the judiciary toward the classical view of the judicial role, or at least toward the circa 2005 view of the judicial role, and if so that is a good development. But it will not be the end of the temptation. Constant pressure requires constant vigilance.

(Via Volokh Conspiracy. where Professor Bray has additional thoughts.)

New Book: "Creating a More Perfect Slaveholders' Union" by Peter RadanMichael Ramsey

Recently published:  Creating a More Perfect Slaveholders' Union - Slavery, the Constitution, and Secession in Antebellum America (University Press of Kansas 2023), by Peter Radan (Macquarie University [Sydney, Australia]).

In Texas v. White (1869), the Supreme Court ruled that the unilateral secession of a state from the Union was unconstitutional because the Constitution created “an indestructible Union, composed of indestructible States.” The Court ruled “there was no place for reconsideration, or revocation, except through revolution, or through consent of the States.” In his iconoclastic work, Peter Radan demonstrates why the Court’s ruling was wrong and why, on the basis of American constitutional law in 1860–1861, the unilateral secessions of the Confederate states were lawful on the grounds that the United States was forged as a “slaveholders’ Union.”

Creating a More Perfect Slaveholders’ Union addresses two constitutional issues: first, whether the states in 1860 had a right to secede from the Union, and second, what significance slavery had in defining the constitutional Union. These two matters came together when the states seceded on the grounds that the system of government they had agreed to—namely, a system of human enslavement—had been violated by the incoming Republican administration. The legitimacy of this secession was anchored, as Radan demonstrates, in the compact theory of the Constitution, which held that because the Constitution was a compact between the member states of the Union, breaches of its fundamental provisions gave affected states the right to unilaterally secede from the Union. In so doing the Confederate states sought to preserve and protect their peculiar institution by forming a more perfect slaveholders’ Union.

Creating a More Perfect Slaveholders’ Union stands as the first and only systematic analysis of the legal arguments mounted for and against secession in 1860–1861 and reshapes how we understand the Civil War and, consequently, the history of the United States more generally.

(Via Legal History Blog.)

I haven't had a chance to read the book, although it's relevant to a project I'm undertaking so it's on my list.  But I'm skeptical of its conclusion that "the unilateral secessions of the Confederate states were lawful on the grounds that the United States was forged as a 'slaveholders’ Union.'" I don't doubt that this was the Southerners' argument in the 1860s, but I think it's wrong as a matter of original meaning.  The original Constitution didn't protect slavery as a national institution (or outlaw slavery as a constitutional matter either).  It did place some limits on what Congress could do about slavery but in general it left the matter to the national political branches and the states.  This was broadly understood in the early post-ratification period, including in the South, up through at least the Missouri Compromise in 1820; it wasn't until the South started losing the political battle that it turned centrally to constitutional claims.

For example, as to the matter of slavery in the territories, Article IV of the Constitution gave Congress broad power over the territories, and in 1789 no one had any doubt that this allowed Congress to confirm the Northwest Ordinance's prohibition of slavery in the Northwest territory.  As late as 1820, nearly everyone still agreed that Congress had power to prohibit slavery in the territories -- specifically,  the  northern part of the territory acquired in the Louisiana Purchase, as Congress did in the Missouri Compromise.  (The fundamentally political nature of the matter, as seen at the time, is confirmed by the Compromise's focus on maintaining the balance of slave and free states in the Senate.)  The idea that the Constitution protected slavery in the territories (and perhaps even in the northern states) was, in my assessment, principally a product of the 1840s and 1850s.  But I'm interested to see what Professor Radan has to say about it.

Josh Blackman on the Aftermath of RahimiMichael Ramsey

At Volokh Conspiracy, Josh Blackman: Rahimi, Meenie, Miney, Mo - Will Garland v. Range be the way to go?  From the introduction: 

On Tuesday, the Supreme Court heard oral argument in United States v. Rahimi. Things did not go well for Mr. Rahimi. I can see him losing 7-2, 8-1, or maybe even 9-0, over some very stern concurrences. That the Supreme Court will (almost certainly) reverse the Fifth Circuit does not mean that the Fifth Circuit failed to faithfully apply Bruen. To the contrary, the Supreme Court seems to already have doubts about a precedent that, like Dobbs, is in its fifth trimester. Don't blame the inferior courts for taking the Supreme Court at its word.

And from later on:

On two occasions [during the argument], Justice Barrett shined a light on another case looming on the docket.

Early in the argument, Justice Barrett acknowledged that domestic violence is a fairly easy case with regard to a "tradition of dangerousness." Rahimi's conduct "might be in a heartland," Barrett asked, "but then you can imagine more marginal cases." That is, a case where it is no so clear that the defendant is dangerous.

Later, Justice Barrett pressed the SG about what would happen in a case where the defendant is not dangerous. Prelogar responded, "You don't need to resolve that issue here. This is a is a case just about someone who is not responsible in the form of being dangerous." Barrett asked, "But you're trying to save, like, the range issue. So you're not applying dangerousness to the crimes?"

If you skimmed the transcript, you might have missed the reference. Indeed, "range" was lowercase and not italicized. Here, Barrett was referring to Garland v. Range. Range presents the question of whether a person convicted of making false statements to obtain food stamps is subject to the disqualification under Section 922(g)(1). On June 6, 2023, the en banc Third Circuit held that under Bruen, Range could not be disarmed.

Four months later, the Solicitor General filed a cert petition in Range. ...

And in conclusion: 

Range will be distributed at the November 17 conference. If the Court grants certiorari, the case can be argued in the March/April window. Range and Rahimi would become companion cases. Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from Bruen. Indeed, the Court may be able to split those cases in a way so as not to water-down Bruen. The Court could even vacate-and-remand Rahimi in light of Range. If the Fifth Circuit is given clear guidance on what the state of the law is, it can follow that guidance.

Jacob Harcar: The Original Meaning of Section 1983 and Official ImmunityMichael Ramsey

Jacob Harcar (Prairie States Legal Services) has posted The Original Meaning of Section 1983 and Official Immunity (106 pages) on SSRN.  Here is the abstract:

Section 1983 is a federal statute that gives people the right to sue state officials who deprive them of their constitutional rights. But the Supreme Court has held that most state officials have some kind of immunity from suits for damages. In Tenney v. Brandhove (1951), the Supreme Court held that Congress did not intend to abrogate common law absolute legislative immunity when it enacted § 1 of the Ku Klux Klan Act of 1871 (today codified as amended at 42 U.S.C. § 1983). This holding has since become an unquestioned axiom of the Supreme Court’s § 1983 jurisprudence. Relying on this axiom, the Court has held that Congress also intended to preserve other official immunities available at common law, including absolute judicial immunity and qualified immunity for executive officials.

But Tenney was wrong. Both as a matter of original intent and original public meaning, § 1983 abrogated all common law official immunity defenses. Key to determining the original meaning of § 1983 is the statute upon which it was modeled—§ 2 of the Civil Rights Act of 1866 (today codified as amended at 18 U.S.C. § 242)—which provided criminal liability for similar acts. When other evidence of original meaning is evaluated in light of the context provided by § 242, it becomes clear that § 1983 was most likely originally understood to abrogate all common law official immunities, including legislative immunity. Though this might sound absurd in light of modern understandings of “Our Federalism,” an originalist understanding of federalism, informed by the changes made to our constitutional structure by the Reconstruction Amendments, if anything, cuts the other way.

Rahimi Argument Today [Updated]Michael Ramsey

The Supreme Court is hearing argument today in United States v. Rahimi, the Second Amendment case involving a federal statute denying gun rights to persons subject to domestic violence restraining orders.  Many people are looking to the Court for clarification of its "text, history and tradition" test announced in 2022 in the Bruen case.  As discussed earlier, I think it's notable that leading defenders of Second Amendment rights disagree on the correct analysis of the issue.

On further reflection, and despite a Wall Street Journal op-ed by Stanford historian Jack Rakove saying the opposite, I think the Rahimi restriction implicates the core purpose of the Second Amendment. As its preamble indicates, the Amendment's central point was to prevent the federal government from interfering with the states' ability to form a militia, by denying the people access to arms.  Contrary to some commentators, describing the Amendment this way doesn't undermine the idea of the Amendment as a protection for individual rights: the Amendment protected the militia by protecting individuals' right to arms. The federal statute at issue might be consistent with the Second Amendment as applied to Mr. Rahimi himself, but its broader effect is to disarm people the federal government thinks are dangerous -- exactly what the Amendment was designed to prevent.  In a sense the Amendment is a federalism provision: it gives the states, not the federal government, power to decide who should be excluded from the arms-bearing militia.  (I'm leaving aside here the question of how the Fourteenth Amendment affects the states' power.)

Relatedly, I agree with Nelson Lund that from an originalist perspective the statute in Rahimi is very likely beyond Congress' Article I, Section 8 powers.  The Federalists were partially right that the Bill of Rights amendments were somewhat redundant in that they prohibited the federal government from doing things it didn't have the power to do in the first place.  The Anti-federalists were right, though, that this was far from entirely true.  It seems especially true of the Second Amendment, however.

(Of course, I'm not a Second Amendment expert, so these thoughts -- like many things appearing in this space -- are mostly tentative.  As to the outcome of the case itself, mostly I'm hoping that Justice Thomas writes a concurrence saying that the statute exceeds the government's enumerated powers.)

UPDATE: The argument does not go well for Rahimi, according to SCOTUSBlog.

RELATED:  Via SCOTUSBlog, Ian Ayres (Yale) and Fredrick Vars (Alabama) have this article in the LA Times: Supreme Court should protect domestic violence victims from guns, even if the founders didn’t.  They mostly argue that the Court's test from Bruen doesn't work in Rahimi because no one was focused on domestic violence at the founding.  I think this misses a major element of Bruen --  if there weren't similar statutes to the one at issue, the Court said, courts should look at roughly analogous statutes.  Thus, in Rahimi pretty much everyone agrees there were no were no relevant domestic violence statutes and the argument is whether there were analogous statutes disarming people found to be dangerous in a broader sense. 

The Ayres/Vars essay does highlight one significant problem I see with Bruen, which is: the fact that no laws were enacted (e.g., laws disarming people at risk for domestic violence) does not prove that anyone thought that no such laws could be enacted.

Chris Mirasola: Sovereignty, Article II, and the Military during Domestic UnrestMichael Ramsey

Chris Mirasola (Climenko Fellow and Lecturer on Law, Harvard Law School) has posted Sovereignty, Article II, and the Military during Domestic Unrest (15 Harv. Nat'l Sec. J. (forthcoming 2024)) (65 pages) on SSRN.  Here is the abstract:

In this article I contest two theories of inherent presidential power, rooted in Article II, to use the military to respond to domestic unrest during peacetime. This question is more contested than one might imagine. Based on all available evidence, in June 2020 President Trump relied on a doctrine of inherent Article II authority to deploy thousands of National Guard personnel to the streets of Washington, DC in response to Black Lives Matter protests. On January 6, 2021, the Commanding General of the DC National Guard more explicitly contemplated using a second, different doctrine of inherent authority to deploy his soldiers to retake the Capitol Building. This article mines archival War Department legal opinions and previously unavailable Department of Justice Office of Legal Counsel memoranda obtained under the Freedom of Information Act to reconstruct and critique the legal arguments underpinning these two doctrines of inherent authority.

This critique brings together two bodies of scholarship: (1) whether and how executive powers may be imputed from federal sovereignty and (2) methodologies for using historical practice to define ambiguous constitutional text. I reconstruct how the executive has justified these two doctrines by relying on historical assertions of power implied from federal sovereignty and based in necessity. My reconstruction shows how the executive disregards and mischaracterizes congressional responses to these assertions. And it demonstrates how the executive incompletely addresses Supreme Court precedent concerning inherent executive authority. I then draw on these observations to argue that an essential and underemphasized precondition for using historical practice as a means of constitutional interpretation is establishing the notoriety of executive branch practice and associated legal rationales. Finally, I consider what might be done to rein in this type of overreach, which rarely (if ever) is subject to judicial scrutiny.

My view is that the President obviously has constitutional power, absent a statutory limitation, to use the military to enforce domestic law as part of the Article II law execution power and commander in chief power.  Indeed, the President has the obligation to do so, if necessary to assure the laws are enforced, pursuant to the duty imposed by the take care clause. (I wouldn't call it "inherent" power because I don't like the extra-textual implication of that word -- it's just an ordinary constitutional power.)  But, as the article notes, the 1876 Posse Comitatus Act, 13 U.S.C. § 1385, bars use of the Army “as a posse comitatus or otherwise to execute  the laws” except where “expressly authorized by the Constitution or Act of Congress.”  I don't know what Congress had in mind as "expressly authorized by the Constitution" but I assume it wasn't the general law execution power, else the Act would be meaningless.  (Perhaps the express authorization is the guarantee clause of Article IV, Section 4 -- so the President would have authority to use the army to assure a republican form of government in the states and to protect against domestic violence on request by a state.) But generally I agree with the article that invoking "inherent" power to get around the Posse Comitatus Act is dubious, because an implied constitutional authorization, even if it exists, isn't express.  (This is all assuming the Posse Comitatus Act is constitutional, which I think it likely is, as part of Congress' power to make rules for the "Government and Regulation of the land and naval Forces.")

Aside: Congress has made some broad authorizations to the President to use the military domestically to suppress insurrection, as Matthew Waxman and I discuss in our forthcoming article on war powers delegations.  We think these delegations are constitutional, regardless of what one thinks of delegating the decision to initiate war, because they are in an area where the President has independent constitutional power.

(Via Larry Solum at Legal Theory Blog, who does not say "Highly recommended", but I think it's an important paper anyway.)

John McGinnis on Cass Sunstein's "How to Interpret the Constitution"Michael Ramsey

At Law & Liberty, John McGinnis: Unmooring the Constitution.  From the introduction:

Cass Sunstein is the most cited active law professor and a barometer of the left-liberal jurisprudential thought that dominates the legal academy. For this reason alone, his recent book, How to Interpret the Constitution, is worth reading. And it is well-written and novel, even if disjointed and unpersuasive.

Sunstein’s premise is that a theory of constitutional interpretation should make society better rather than worse. To figure out whether a theory will do that, Sunstein believes we must begin by assessing the consequences of important constitutional cases. Correct outcomes in these cases constitute the “fixed points” for a theory. They are “provisional,” because the interpreter must then make sure that these fixed points “line up with one another and do not contradict one another.” To arrive at the final choice of an interpretive theory, a judge may also consider cross-cutting considerations, like the capacity of the theory to make judgments based on objective considerations rather than personal preferences.

Thus, Sunstein argues that one’s fixed constitutional points will not simply be one’s fixed policy points. He claims that an interpretive theory’s mediation between our assessment of the outcomes of particular cases and more general considerations applies John Rawls’s reflective equilibrium method, in which provisional moral judgments about particular situations are tested against more general theories of morality, like utilitarianism, to help us arrive at a correct moral theory.

In the book, Sunstein offers his own fixed points. They include the rightness of Brown v. Board of Education, the constitutionality of broad delegations to the executive branch, and the constitutionality of regulating independent expenditures in support of political campaigns. These are apparently points to which any reasonable person should assent, although he also has some points with which he thinks reasonable people may disagree. He argues that taken together, his fixed points currently rule out various interpretive theories popular on the right, such as originalism and traditionalism, as well as theories of judicial review extremely deferential to the legislature like that of James Bradley Thayer.

And from the conclusion:

... Sunstein’s theory of fixed points suffers from multiple fatal problems. It requires knowledge that is difficult if not impossible to acquire, it fails to create a jurisprudence of any determinacy, and it provides a recipe for intractable constitutional division. No Court justice—not even the opponents of originalism for whom this book is written—will use it to choose among constitutional theories. But like Sunstein’s other work, the current generation of law professors is sure to cite it widely.

 

Thoughts on Moore and Hylton v. United StatesMichael Ramsey

In a previous post, I noted the interesting originalist brief by Akhil and Vikram Amar in Moore v. United States, the pending Sixteenth Amendment case.  The Amars argue that even if the Sixteenth Amendment does not authorize taxation of unrealized gains as income (the issue in Moore), such a tax is still constitutional because it is not a "direct tax" under Article I.  For this they centrally rely on Hylton v. United States, a 1796 case that upheld a tax on carriages and (they say) limited direct taxes to head taxes and real estate taxes.

I think the argument is not as easy as they make it sound.  Here is a discussion of Hylton by David Currie (my favorite source for wry post-ratification commentary), in The Constitution in the Supreme Court, the First Hundred Years, p. 33 (footnotes omitted):

All three opinions in Hylton [by Justices Chase, Iredell and Paterson] hazarded the suggestion that only capitation and land taxes were direct, and for this unnecessarily broad conclusion (qualified in Paterson's opinion by additional possibilities) the decision was cited carelessly until 1895.  The basis for this conclusion is elusive.  Chase stated it without reasons, following perhaps from his discussion of policy.  Iredell suggested that land taxes were direct because they could be apportioned fairly. Paterson referred to "theory and practice" without expounding the one or illustrating the other, and he added without citation that the provision had been inserted during the convention to allay Southern fears regarding taxes on land and slaves.  But the opinions fall short of convincing the modern reader that contemporary understanding limited the term to land and poll taxes.  That the framers may have had land and poll taxes in mind does not prove that no others fall within the general term "direct"...

And from later on (p. 35):

It was Paterson who advanced the most persuasive argument.  He, too, concluded that "[a]ll taxes on expenses or consumption are indirect taxes," but he explained why: "Indirect taxes are circuitous modes of reaching the revenue of individuals, who generally live according to their income."  For this interpretation he quoted Adam Smith:

The state, not knowing how to tax directly and proportionally the revenue of its subjects, endeavors to tax it indirectly, by taxing their expense, which it is supposed , in most cases, will be nearly in proportion to their revenue... [quoting The Wealth of Nations, published in 1776]

Currie adds in a footnote (note 39 on p. 36): "The notes Hamilton prepared in anticipation of his oral argument suggest that he urged Smith's definition on the Court and that he reconciled it with the understanding that land as well as capitation taxes were direct by invoking Smith's own insistence that land and labor were the sources of income."

I haven't looked at all the primary sources but this seems to suggest (pretty strongly, I'd say) that an income tax is a direct tax while taxes on expenditures (such as on carriages) are indirect.  In any event, the issue seems more puzzling than the Amars admit.

Mike Rappaport adds:  Some years ago, I had the opportunity to review and write about Hylton in this article.  I remember the performance of the justices to be extremely disappointing -- not for the result, but for the unbelievably poor legal analysis.  

Judge William Pryor vs. Conor Casey on Common Good ConstitutionalismMichael Ramsey

At Judicature, a debate: Originalism Is Dead. Long Live Originalism, featuring Judge William Pryor (11th Circuit) and Conor Casey. Here is the introduction (footnotes omitted):

Has originalism run its course? Yes, says Harvard Law Professor Adrian Vermeule in Common Good Constitutionalism (Polity Press, 2022), which advocates for the book’s titular theory to replace it. In his view, originalism — the judicial interpretive mode that takes as its lodestar the intended meaning of the Constitution at the time it was written — “has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.”

Instead, he argues that “the central aim of the constitutional order is to promote good rule,” and that
“[c]onstraints on power are good only derivatively, insofar as they contribute to the common good.” Under this common good constitutionalism, the state has broad authority to “protect the populace” from a host of wrongs, including unjust market forces, corporate exploitation, and the selfish agenda of private rights. It “legislate[s] morality,” so to speak, without apology.

Professors William Baude and Stephen Sachs responded in a Harvard Law Review article, recognizing the theory as one that “must be taken seriously as an intellectual challenge” to originalism, but ultimately decrying it as “a work of ‘movement jurisprudence’ whose political aims come into conflict with theoretical rigor.” Others critiqued the theory as promoting living constitutionalism, an unknowable common good, and a pursuit that will produce “untoward results.”

The newly articulated theory of constitutional interpretation has caused waves in the halls of academia as well as in the courts: In the months following publication of Vermeule’s book, half a dozen cases had already cited the theory. We asked two scholars for their views: Professor Conor Casey, a lecturer in law at the School of Law and Social Justice at the University of Liverpool, and William H. Pryor Jr., chief judge of the United States Court of Appeals for the Eleventh Circuit. Their lively back-and-forth follows.

Here is one of the questions, on specific applications:

[Q] To take two recent cases, how might Dobbs and Bruen come out under common good constitutionalism? Are there other landmark cases you think would come out differently (or perhaps the same) using this approach?

CASEY: There is much to commend in Dobbs. But from the classical legal perspective, it failed to uproot one of the main problems at the heart of Roe v. Wade. Namely, the fact the Supreme Court did not recognize that law is for the sake of all persons, no matter how weak or vulnerable. Roe failed to ensure that the reasoned intentions of lawmakers expressed in posited legal texts were understood, insofar as possible, in favor of the most basic, fundamental, natural law right enjoyed by every person equally — the right to life.

In Dobbs, the justices missed a good opportunity to course correct, and to interpret the guarantees and reasoned intention behind the Fourteenth Amendment — which is both under-determinate and can be read at multiple levels of generality. They could have done so consistently with basic principles of the natural law that are always reasonable to consider part of our law, and a necessary feature of resolving hard cases in a morally sound way.

I would be stretching the bounds of my professional competence to get into the weeds of Bruen.

PRYOR: I am puzzled by Professor Casey’s response. He criticizes Dobbs because it did not interpret the Fourteenth Amendment “in favor of” the right to life. Perhaps he wanted the Court to declare that the unborn have a constitutional right to life. But the question presented in Dobbs was whether a Mississippi statute that prohibited abortions after 15 weeks was prohibited by the Constitution. The Dobbs Court answered that question in the negative. What exactly should a court applying the principles of living common goodism have done in Dobbs? Should the Court have ordered a criminal prosecution of abortionists beyond what Mississippi law provided? Should it have decreed a federal abortion ban in other states? Casey’s objection misunderstands the nature of the case, our Constitution, and our tradition. He does not explain why his principles required going so far beyond the question presented and the parties’ arguments.

As to Bruen, the answer from the main proponent of living common goodism is clear, even if Professor Casey himself is agnostic. Vermeule has criticized Heller and Bruen and maintains that all constitutional rights should be freely regulable by the political branches, subject only to “arbitrariness review.” And Casey’s view that “rights are not absolute but ordered to the common good and objective needs of society” suggests that he endorses the same framework. Judicial review of legislation affecting Second Amendment rights under that framework would never produce Bruen or Heller, despite “unqualified” constitutional text.

I continue to not understand how common good constitutionalism is anything other than a (sort of) right-wing version of living constitutionalism.

(Thanks to Josh Blackman for the pointer.)

Nelson Lund on U.S. v. RahimiMichael Ramsey

At Law & Liberty, Nelson Lund (George Mason/Scalia): Domestic Violence and the Second Amendment.  From the introduction:

On November 7, the Court will hear oral arguments in United States v. Rahimi, which involves a challenge to a federal statute, 18 USC 922(g)(8). This law automatically criminalizes the possession of a firearm by an individual who has been ordered by a court not to place the subject’s intimate partner in fear of bodily injury to the partner or the partner’s child. The ban on possession is triggered if the restraining order either (i) includes a finding that the subject represents a credible threat to the physical safety of the intimate partner or child, or (ii) explicitly prohibits the use or threat of physical force that would cause bodily injury to the partner or child.

Because the plain text of the Second Amendment covers the possession of a firearm, Bruen’s holding requires the government to demonstrate that 922(g)(8) is consistent with this Nation’s historical tradition of firearm regulation. In some cases, this rule provides an intuitively plausible way to identify the original meaning of the Amendment. Neither the constitutional text nor its very sparse legislative history specifies the scope of the right to keep and bear arms. Absent such direct evidence of the Amendment’s meaning, it is unlikely that the founding generation meant to outlaw a widespread and settled type of regulation that was familiar and uncontroversial during the founding period. This is the same intuition that has led the courts to assume that the First Amendment does not forbid laws against perjury, fraud, or defamation.

Bruen does not contain much detail about the type and amount of evidence governments must produce. But it does indicate that the evidentiary value of historical regulations is greater if such regulations were commonplace rather than rare, if they were near in time to the Amendment’s adoption, and if they were distinctly similar to a modern regulation that the government is defending.

In Rahimi, the brief for the United States does not cite a single pre-twentieth-century American law that punished American citizens, even those who had been convicted of a violent crime, for possessing a firearm in their own homes. Not one.

And from the conclusion:

... [R]estraining orders that trigger the ban on possession need not be based on any evidence of prior misuse of a gun or of a proclivity to do so. A judicial finding of a threat to the physical safety of an intimate partner or child, for example, could be based on nothing but an allegation that an agitated man threatened to slap his girlfriend in the face or give their son a good spanking. In one case, a protective order was issued after a distraught man tried to block his ex-girlfriend’s car by lying on its hood. Such orders can be imposed with virtually no due process protections, and it is a serious mistake to assume that they are issued only against demonstrably dangerous individuals. Worse, 922(g)(8) does not require even an allegation of threatened violence. State judges often face enormous pressure to issue such orders, and little incentive to deny them, whether or not they are called for.

These orders are meant to protect a small number of specific individuals, and it’s easy to imagine cases in which the use of a firearm might justifiably be restrained. A state court judge, for example, might have good reasons to order someone not to bring a gun when he meets with his estranged wife. But even if the judge carefully tailors his order to suit the circumstances, 922(g)(8) automatically steps in with a complete federal ban on possession, which renders the man vulnerable to innumerable potential threats that have nothing to do with his wife or their relationship. And when divorce court judges routinely issue restraining orders against both parties, they may increase the danger of domestic violence by depriving the more vulnerable spouse of the means of self-protection.

The overbroad coverage of 922(g)(8) flouts the Constitution’s purpose, which includes protection for the inherent right of self-defense against violent attacks that the government cannot prevent. No one would defend a regulation that infringed the right of free speech in the way that 922(g)(8) infringes the right to keep and bear arms. Suppose a state court ordered a woman to refrain from making threatening phone calls to her former boyfriend. Congress obviously could not make it an automatic felony for that woman to possess a telephone. But somehow we’re supposed to believe that the same order may automatically criminalize her possession of a firearm for self-defense.

Besides the multiple defects that render 922(g)(8) unconstitutional, the statute looks more like a political performance than a serious effort to reduce abusive behavior. The states have ample tools for punishing and deterring domestic violence, and there is no evident justification for their decisions to be displaced by a federal statute. Nor is it apparent that this statute is authorized by the Constitution or Supreme Court precedent. On the contrary, it is hard to see how Congress would have such authority even if the Second Amendment had never been adopted.

I agree with the last point.  If Congress doesn't have commerce power to criminalize possession of guns near schools, I don't see how it has commerce power to criminalize possession of guns in connection with state court restraining orders relating to domestic violence, none of which has anything commercial to it. (But I don't think this issue is in front of the Court.)

On the Second Amendment issue, interestingly Professor Lund's argument is much more favorable to Rahimi than the amicus brief  filed by David Kopel on behalf of originalist Second Amendment scholars, mentioned in my previous post.  From their summary of argument (at the end):

... [A]s accurately catalogued in the Solicitor General’s brief, there is ample original meaning precedent for limiting an individual’s arms rights based on a judicial finding that the person poses a danger to others. Therefore, state statutes  addressing the same subject as 18 U.S.C. §922(g)(8)(C)(i) [ed.: which applies if there is a finding of dangerousness] can comply with the Second Amendment.

While subsection (C)(i) requires finding of “a credible threat,” subsection (C)(ii) [ed.: which applies if there is specific order prohibiting violent acts and threats] does not, and therefore is an infringement. The problem could be solved by changing a single word between §922(g)(8)(C)(i) and (ii): “or” to “and.” Making (C)(i) and (C)(ii) conjunctive instead of disjunctive would remedy the infringement in (C)(ii).

William Baude & Robert Leider: The General Law Right to Bear ArmsMichael Ramsey

William Baude (University of Chicago Law School) & Robert Leider (George Mason University - Antonin Scalia Law School) have posted The General Law Right to Bear Arms (Notre Dame Law Review, Vol. 99, 2024) (34 pages) on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a text and history test for evaluating Second Amendment challenges. This test has produced both confusion and criticism. Many lower court judges have construed the Supreme Court’s test to require a determination whether the Framing generation had a nearly identical regulation, but many modern regulations have no direct Framing-era analogue. Judges have objected to Bruen, lamenting that they are not historians; scholars have criticized Bruen’s test as ill-defined and unworkable.

We argue that Bruen’s text and history test has not been properly understood. Bruen is best understood as continuing the Supreme Court’s original law approach to the Second Amendment. Under an original law approach, courts must determine and apply the Framing-era law protecting the right to keep and bear arms. This means that courts must determine the principles that separated valid regulations of the right to bear arms from unconstitutional infringements. Courts must then apply these legal principles to modern forms of regulation. Applying old principles to new facts sometimes requires analogical reasoning and extrapolation, but these are or should be basic tools of legal reasoning. In short, Bruen does not require courts to become historians; it asks that they be common-law judges, applying old law in new times.

Via Volokh Conspiracy, where Professor Baude includes excerpts illustrating how the paper analyzes the pending Supreme Court case United States v. Rahimi.

RELATED: Also at Volokh Conspiracy, David Kopel has this post: The Solicitor General's response to my amicus brief in Rahimi.  His brief is here; the signers are: 

Randy Barnett (Georgetown), Robert Cottrol (George Washington), Lee Francis (Mississippi College), Donald Kilmer (Lincoln), Joyce Malcolm (George Mason, emerita), George Mocsary (Wyoming), Joseph Muha (Akron), Joseph Olson
(Mitchell Hamline, emeritus), Glenn Reynolds (Tennessee), and Gregory Wallace (Campbell).

The brief is notable in that, while ostensibly filed in support of respondent (the defendant), it acknowledges -- indeed, directly argues -- that Second Amendment rights can be denied to people found to be dangerous to others (as Rahimi was).

The Amars on Moore v. United StatesMichael Ramsey

Recently filed, this amicus brief in support of respondent by Akhil Amar (Yale) and Vikram Amar (Davis) in Moore v. United States.  From the summary of argument: 

Most of the other briefs in this case have missed the point. The Mandatory Repatriation Tax (MRT) passed by Congress and signed into law by President Trump in 2017 does not violate the Apportionment Clause of Article I, Section 2, for the simple and decisive reason that the MRT is neither a head tax nor a real-estate tax, and thus is not a “direct tax” subject to the Constitution’s apportionment requirement. This is true regardless of the Sixteenth Amendment. In other words, it is true whether or not the MRT is an “income tax” within the meaning of that Amendment. A tax need not be an “income tax” to escape the apportionment requirement. It simply needs to be a revenue measure that is not a “direct tax,” under Article I, Section 2.

Only head taxes and real-estate taxes are direct taxes within the meaning of the Founders’ Constitution, as understood by—wow!—George Washington; Alexander Hamilton; the overwhelming majority of the 1794 Congress and later early Congresses; and every member of this Court to opine on the issue in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), the most important case this Court decided pre-Marbury. Eventually, even James Madison and Thomas Jefferson repudiated their earlier Republican allies and came to agree with their Federalist counterparts on this issue. Post Founding, our approach also has on its side President Abraham Lincoln and Justice John Marshall Harlan the Elder, among countless others. On the other side: We admit that Congressman James Madison once thought otherwise—that is, before he saw the light and forever changed his tune as President of the United States.

We hasten to add that, like many other amici (and the Respondent) in this case, we believe the MRT can indeed be upheld under the Sixteenth Amendment. But the Court need not reach that question. Were the Court to reach that question and for some reason decide that the MRT is not a proper income tax, the MRT should nonetheless survive constitutional challenge (and the judgment below should be affirmed) for precisely the same reason that one of Congress’s first major tax laws—a tax on luxury-carriage ownership—survived in Hylton: A Carriage Ownership Tax is not a direct tax—and the Mandatory Repatriation Tax is not a direct tax—because neither one taxes human heads or real estate.

If Petitioners are correct, then Hylton and the federal tax it upheld were wrong. If, instead, Hylton and its many Founding-era supporters are correct, then Petitioners are wrong. Hylton is the key, and we respectfully urge every member of this Court to read this landmark case carefully.

(Via Jason Mazzone at Balkinization.)

I agree that if the tax in Moore is not a tax on income within the meaning of the Sixteenth Amendment, it would still be constitutional if it is not a direct tax within the meaning of Article I (per Hylton).  The Amars' brief says in a footnote:

To the extent that the main or only reason that the Court granted certiorari in this case was to clarify the scope of
the Sixteenth Amendment, the Court might well consider dismissing the writ of certiorari as improvidently granted.
Alternatively, the Court could call for additional briefing on the meaning of “direct” taxes, the issue we focus on in this amicus brief. But it would be inappropriate for the Court to reverse the judgment below without engaging the fundamental question we discuss here.

I don't follow this argument, though -- especially as the briefing has mostly not engaged the direct tax issue.  It would seem that the Court could reverse the Ninth Circuit's ruling as to "income" (assuming the Ninth Circuit got that part wrong) and remand for the Ninth Circuit to consider the direct tax issue.

Brian Murray: Original Understanding, Punishment, and Collateral ConsequencesMichael Ramsey

Brian Murray (Seton Hall Law School) has posted Original Understanding, Punishment, and Collateral Consequences (University of Pennsylvania Journal of Constitutional Law, forthcoming 2024) (66 pages) on SSRN.  Here is the abstract:

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment. First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine. Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach. Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive. Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes. The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist. Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment. By contrast, existing doctrine narrowly conceives the meaning of the term “punishment”. If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence. In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government. These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment.