11/25/2020

Eric Muller on Self-Pardons
Michael Ramsey

In The Atlantic, Eric Muller (UNC): The One Word That Bars Trump From Pardoning Himself.  From the introduction:

As Donald Trump’s tenure in office comes in for its landing, a major question is whether the president—facing questions about liability for offenses including bank and tax fraud—can pardon himself.

This might seem like the right operational question, but it is imprecise as a constitutional one. Article II of the Constitution says that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Did you catch that? The president has the power not to pardon people, but “to grant … Pardons” (emphasis added). So the question is not whether Trump can pardon himself. It’s whether he can grant himself a pardon.

That might seem like an odd way of putting the question, but it’s linguistically important. On the one hand, some actions can’t be reflexive—you can’t do them to yourself. Think of surrenderingrelinquishing, or handing over something. These verbs entail a transfer to someone else; the actor can’t also be the recipient.

On the other hand, countless verbs do leave open the possibility of reflexive meaning. If, for example, the Constitution had empowered the president not to grant a pardon but to announce a pardon, one would be hard-pressed to insist that the president could not announce himself as a recipient.

And from later on:

Based solely on other uses of grant in the Constitution, a person could reasonably determine that a president cannot grant himself a pardon. But in evaluating the meaning of the Constitution’s words, the text of the Constitution isn’t all that counts. The most common interpretive method these days—championed by Justice Antonin Scalia and now broadly popular among conservatives—is to look for evidence of a term’s “original public meaning.” That, theoretically, is the meaning that ordinary English speakers of the late 18th century would have attached to a given term when coming upon it in a legal document like the Constitution.

But how is one to determine this “original public meaning”? One place to begin is a law dictionary in use at the time, such as The Law-Dictionary: Explaining the Rise, Progress, and Present State of the English Law; Defining and Interpreting the Terms or Words of Art; and Comprising Copious Information on the Subjects of Law, Trade, and Government, compiled by Giles Jacob, and the most popular legal dictionary of the era. According to Jacob’s tome, a grant—which he defined only as a noun—is a “conveyance in writing of incorporeal things.” And what, in turn, is a conveyance? It is “a deed which passes or conveys land from one man to another.”

Note: “from one man to another.”

Thus, to the extent that the most popular contemporaneous law dictionary is valuable in understanding what ordinary speakers of the founding era meant by “granting,” it seems clear that they probably had in mind an interpersonal transfer.

Thanks to Bryan Wildenthal for the pointer.

Prior Originalism Blog discussion of this issue:

Michael McConnell, guest-blogging: Further Thoughts on the President's Self-Pardon Power

Andrew Hyman: The President May Not "Grant" Himself a Pardon

Michael Ramsey: Tribe versus Tushnet: Can the President Pardon Himself?

Mike Rappaport: Can the President Pardon Himself?

11/24/2020

David Upham on the Citizenship Clause
Michel Ramsey

David Upham sends this comment: 
 
 
Your implied "if any" is almost explicit in Gassies v. Ballon, on which the merely declaratory Citizenship Clause was partly based.
 
In this case the court is of opinion that the jurisdiction can be sustained. The defendant in error is alleged in the proceedings to be a citizen of the United States, naturalized in Louisiana, and residing there. This is equivalent to an averment that he is a citizen of that state. A citizen of the United States, residing in any state of the union, is a citizen of that state.
 
That opinion and that holding had been cited with approval in Justice Curtis's dissent in Dred Scott.
 
In Gassies v. Ballon, (6 Pet., 761,) the defendant was described on the record as a naturalized citizen of the United States, residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did then reside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive the plaintiff of his right to sue citizens of States other than Missouri, in the courts of the United States.

Citizenship and Almond Joys
Andrew Hyman

This blog post is in reply to Mike Ramsey’s recent post about birthright citizenship.  The Citizenship Clause says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens…of the state wherein they reside.”  In my opinion, this means if you’re born or naturalized while domiciled outside the states, then you’re not both (1) born or naturalized in the United States, and (2) subject to the jurisdiction of the U.S. 

Mike disagrees, writing that it would be plausible to read the quoted sentence like this: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens…of the state, if any, wherein they reside.”  Mike considers the words “if any” to be implicit, and he gives an analogy:

Suppose I tell my kids: if you eat your dinner, you can have a slice of pie and the candy in your pocket.  One kid does not have any candy in his pocket.  In my view (and, I'm sure, in his), he can still have pie.  I meant "...and the candy, if any, in your pocket."  Having candy in his pocket isn't a prerequisite for having pie; it's just a prerequisite for having candy.

I suggest we slightly modify the statement: “if you eat your dinner, you can have a slice of pie and the Almond Joy in your pocket.”  Here I have replaced “candy” with “Almond Joy” because the latter is binary (either you have the Almond Joy in your pocket or you don’t), whereas the word “candy” could be anything from zero to lots and lots.  The Citizenship Clause is also binary; either you’re born in a state or you’re not.  I agree with Mike that the offer by the parent probably does suggest that a kid with no Almond Joy in his pocket would be entitled to pie if he finishes his dinner.  But, I also think that the parental statement would mistakenly assume that the kid did have an Almond Joy in his pocket.  That mistake might not vitiate the offer, but it would still be a mistake, and I don’t think it’s proper to interpret a clause in the Constitution as mistaken, especially when there’s a plausible non-mistaken interpretation available. Sometimes it is okay to judicially correct an error in a statute (e.g. by inserting “if any”), but only if “failing to do so would result in a disposition that no reasonable person could approve” (per Justice Scalia).  If I am correct that it’s not appropriate to imply the words “if any” into the Citizenship Clause, then “the United States” in this context must include only the states, because I do not think any other meaning would make sense in the Citizenship Clause.  

Mike assumed that I believe national citizenship “disappears if one moves outside of the states,” but I don’t believe that. The Citizenship Clause is all about who gets citizenship, not about who loses citizenship.  Senator Jacob Howard was a lead author of the Citizenship Clause, and he explained: “I take it for granted that when a man becomes a citizen of the United States under the Constitution they cannot cease to be a citizen, except by expatriation or the commission of some crime by which his citizenship shall be forfeited."  I agree with Howard.

Mike suggests that the drafters could have adopted my interpretation by writing "... are citizens of the United States and of the state in which they were born."  But, actually, that would have removed the guarantee of state citizenship when a citizen of one state moves to another state, and I believe that guarantee is an important part of the Citizenship Clause.  Moreover, this language that Mike suggests would no longer require that constitutional birthright citizenship be unavailable to people whose domicile is outside the states.  Also, this language Mike suggests would be just as susceptible to improper insertion of the words “if any” like this: "... are citizens of the United States and of the state, if any, in which they were born."

 Mike’s draft article acknowledges that the framers wanted to exclude from constitutional citizenship people born in places under temporary U.S. control, so I’m not sure it would have been a big leap in their minds to exclude from constitutional citizenship people born in places under temporary federal control that would soon become states.  The lead definition of “citizen” in Bouvier’s Law Dictionary was “One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public officers….”  People in the territories obviously could not do that, and hence it would have been rational to not consider them “citizens.”  As Iowa Congressman James F. Wilson said during debate on the Fourteenth Amendment, “A citizen of the United States is always a citizen of the state in which he resides….” Mike is correct that “Excluding the territories from the citizenship clause would leave persons of African descent in D.C. and the western territories unprotected,” but white people in those places would be equally unprotected, and neither white people nor black people in those places would be subject to the great evil that the Fourteenth Amendment was meant to address: racist state governments.  Moreover, Congress could extend citizenship to them by statute, having overturned the citizenship holding in the Dred Scott case which involved a man who had been born in the state of Virginia; Mr. Scott was born in Southampton County, Virginia around 1799.  

Larry Solum's Legal Theory Lexicon: Corpus Linguistics
Michael Ramsey

At Legal Theory Blog, Larry Solum has this entry in the "Legal Theory Lexicon": Corpus Linguistics. From the introduction:

... Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision.  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called "corpus linguistics," has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  As always, the Lexicon is aimed at law students with an interest in legal theory.

Situating Corpus Linguistics

Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflecting in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or "plain meaning textualism") has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.

And from later on:

How Does Corpus Linguistics Work? 

 Corpus linguistics begins with data sets, singular "corpus" or plural "corpora."  These data can be very large--with millions or even billions of words.  For example, the Corpus of Contemporary American English (COCA) consists of approximately 520 million words.  News on the Web (NOW) consists of more than 5.21 billion words.

Corpus lexicography uses these datasets to investigate the meaning of words and phrases.  Whereas traditional dictionary lexicography relied on researchers compiling instances of usage by reading various sources, the corpus approach allows random sampling from large databases with blind coding by multiple coders.

A complete description of the methods of corpus lexicography is beyond the scope of this brief Lexicon entry, but there are two search techniques that can be described briefly.  The first of these is the Key-word-in-context (or KWIC) search.  This method is simple: a corpus is searched for the occurrence of a string (a word or phrase) and reports back the context in which the string occurs.  The individual instances can then be coded for meaning.  The result will be a set of meanings and data about the frequency of the meanings with the sample.  The second method involves a search for the collocates of a word or phrase: for example, the word "bank" might have collocates like "river," "shady," "deposit," and "ATM."  Collocates may help to disambiguate a word like "bank" that has multiple meanings.

11/23/2020

New Book: "The President Who Would Not Be King" by Michael McConnell
Michael Ramsey

Recently published, by Michael McConnell (Stanford): The President Who Would Not Be King: Executive Power under the Constitution (Princeton Univ. Press 2020).  Here is the book description from Amazon:

One of the most vexing questions for the framers of the Constitution was how to create a vigorous and independent executive without making him king. In today's divided public square, presidential power has never been more contested. The President Who Would Not Be King cuts through the partisan rancor to reveal what the Constitution really tells us about the powers of the president.

Michael McConnell provides a comprehensive account of the drafting of presidential powers. Because the framers met behind closed doors and left no records of their deliberations, close attention must be given to their successive drafts. McConnell shows how the framers worked from a mental list of the powers of the British monarch, and consciously decided which powers to strip from the presidency to avoid tyranny. He examines each of these powers in turn, explaining how they were understood at the time of the founding, and goes on to provide a framework for evaluating separation of powers claims, distinguishing between powers that are subject to congressional control and those in which the president has full discretion.

Based on the Tanner Lectures at Princeton University, The President Who Would Not Be King restores the original vision of the framers, showing how the Constitution restrains the excesses of an imperial presidency while empowering the executive to govern effectively.

11/22/2020

New Book: "The Second Founding" by Ilan Wurman
Michael Ramsey

Recently published, by Ilan Wurman (Arizona State): The Second Founding: An Introduction to the Fourteenth Amendment (Cambridge Univ. Press 2020).  Here is the book description from Amazon:

In The Second Founding: An Introduction to the Fourteenth Amendment, Ilan Wurman provides an illuminating introduction to the original meaning of the Fourteenth Amendment's famous provisions 'due process of law,' 'equal protection of the laws,' and the 'privileges' or 'immunities' of citizenship. He begins by exploring the antebellum legal meanings of these concepts, starting from Magna Carta, the Statutes of Edward III, and the Petition of Right to William Blackstone and antebellum state court cases. The book then traces how these concepts solved historical problems confronting framers of the Fourteenth Amendment, including the comity rights of free blacks, private violence and the denial of the protection of the laws, and the notorious abridgment of freedmen's rights in the Black Codes. Wurman makes a compelling case that, if the modern originalist Supreme Court interpreted the Amendment in 'the language of the law,' it would lead to surprising and desirable results today.

And here is a longer description Professor Wurman has posted on SSRN:

It has become conventional wisdom among originalist scholars that the privileges or immunities clause of the Fourteenth Amendment incorporates the bill of rights against the states, guarantees unenumerated fundamental rights, or both. The clause, however, likely does neither. In my new book, The Second Founding: An Introduction to the Fourteenth Amendment, I examine the three antebellum legal concepts at the heart of the Fourteenth Amendment’s first section; the historical and political problems confronting the framers of the Amendment; and how the framers deployed the antebellum legal concepts to solve these historical problems. This legal and political history strongly suggests that the privileges or immunities clause was intended to be an antidiscrimination provision with respect to civil rights under state law.

The book innovates in a few ways over prior scholarship. First, it relies on the “language of the law” and the general political history of the period, with minimal resort to the more unreliable legislative debates in the Thirty-Ninth Congress. The antebellum legal materials suggest that due process of law was indeed about process, not substance; that the protection of the laws was about government protection against private invasion of private rights; and that privileges and immunities provisions were overwhelmingly about nondiscrimination. Indeed, in light of the historical meanings of due process and protection of the laws, only an antidiscrimination reading of the privileges or immunities clause would succeed in constitutionalizing the Civil Rights Act of 1866, the central objective of the Fourteenth Amendment’s framers.

Second, the book shows how the antebellum political history, so often cited in support of incorporation or the fundamental rights reading of the privileges or immunities clause, actually supports the antidiscrimination reading. Third, it responds to other recent accounts of the privileges or immunities clause, propounded respectively by Phillip Hamburger, Kurt Lash, Akhil Amar and Michael Kent Curtis, and Randy Barnett and shows why each account is likely mistaken in light of the relevant antebellum legal and political history. Fourth, it suggests normative reasons to favor the antidiscrimination reading: it is the only reading that supports the outcome in Brown v. Board of Education, and possibly even in Obergefell v. Hodges; and it would allow the states to innovate away from controversial Supreme Court interpretations of modern rights in an era when many worry about the Court “weaponizing” such rights. Fifth, it shows that an originalist seeking to defend incorporation may still be able to do so; but she would have to rely on arguments from “liquidation,” the originalist version of historical gloss.

11/21/2020

Originalism and Birthright Citizenship (again)
Michael Ramsey

I have posted a revised version of Originalism and Birthright Citizenship (Georgetown L.J., forthcoming) on SSRN.  This should be close to the final version.  Thanks to readers of this blog and of Volokh Conspiracy for helpful comments.

I want to respond briefly to Andrew Hyman's post, in which he argues that the citizenship clause requires birth within a state to acquire constitutional citizenship.  He bases that view on the fact that the clause says all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States "and of the state wherein they reside."

I think this is mistaken for three reasons.  First, there's a plausible alternative reading: that national citizens are also citizens of the state, if any, in which they reside.  Residence outside a state doesn't defeat national citizenship; it only defeats state citizenship.  True, this implies the phrase "if any" into the text.  But I think that's a natural enough implication.  Suppose I tell my kids: if you eat your dinner, you can have a slice of pie and the candy in your pocket.  One kid does not have any candy in his pocket.  In my view (and, I'm sure, in his), he can still have pie.  I meant "...and the candy, if any, in your pocket."  Having candy in his pocket isn't a prerequisite for having pie; it's just a prerequisite for having candy.

Second, the clause's text doesn't actually say what Andrew reads it as saying.  The key word "reside" is in the present tense.  That indicates that the residence to which it refers is not at a time in the past (at birth) but rather in the present -- that is, wherever the person currently resides.   That's a sensible outcome; one would expect state citizenship to change when one changes one's state of residency.  But if that's right, state residency can't be a prerequisite for national citizenship.  It would make no sense for national citizenship to disappear if one moved outside of the states (say, from Virginia to Washington D.C.).

If the drafters wanted to require birth within a state for national citizenship, they would have written it differently: "... are citizens of the United States and of the state in which they were born."  Or alternatively they could have required birth "within a state of the United States."  Andrew suggests that perhaps "in the United States" itself meant "within a state of the United States."  I respond to this claim directly in the article (Part II.A.)  It's clear from the pre-drafting linguistic background and from drafting commentary that "in the United States" ordinarily included U.S. territories as well as U.S. states, and that the drafters understood it that way.

Third, it's extremely unlikely that the drafters would have wanted to exclude from constitutional citizenship people born in U.S. territories.  I can think of no reason for doing so.  Why would they want, for example, to exclude people born in Washington D.C. from constitutional citizenship?  Further, it's very likely that they would have affirmatively wanted to include people born in D.C. and the western territories.  One of the main reasons for the citizenship clause was to assure constitutional citizenship to freed slaves and other U.S.-born people of African descent (whose citizenship had been questioned in the Dred Scott case). Excluding the territories from the citizenship clause would leave persons of African descent in D.C. and the western territories unprotected.  Andrew says they could be made citizens by statute -- but the point of the citizenship clause was to guarantee a constitutional right of citizenship that didn't depend on (and so couldn't be taken away by) a statute.  Moreover, in light of Dred Scott, it wasn't entirely clear at the time that people of African descent could be made citizens by statute.  The citizenship clause was designed to fix that error; there's no reason the drafters would have fixed it for people of African descent born in states but not for those born in territories.

My touchstone is the original meaning, so if the original meaning is clear I think that's the end of the inquiry even if the results seem odd.  But here the text is anything but clearly in favor of Andrew's reading; at most it's ambiguous, although actually I think the text alone favors my reading.  When the history and purpose of the clause are considered as well, I think it's apparent that it includes people born in U.S. territories as well as those born in U.S. states.  The state residence language adds the right to be a citizen of the state of one's current residence (I agree with Andrew that this means one's primary residence), but it doesn't impose an additional requirement of state residence for national citizenship.

11/20/2020

John McGinnis on the First and Second Amendments
Michael Ramsey

At Law & Liberty, John McGinnis: Gun Rights Delayed Are Gun Rights Denied. From the introduction:

An analogy to the First Amendment demonstrates why the delays in gun access are unconstitutional. While the First Amendment permits states to require licenses for demonstrations (because of the need to prevent disruption to other activities), such licenses cannot be so unreasonably delayed as to effectively undermine the right of free speech. Moreover, the First Amendment suggests the need for licensing exceptions for demonstrations in response to breaking news. In any event, judges have permitted short delays of only a few days before licenses for demonstrations must be issued.

Similarly, licensing is permitted under the Second Amendment to make sure that guns do not get in the hands of felons and the mentally ill—categories of people the Supreme Court has stated do not have the right to guns. But delays in issuing gun licenses during unrest would render the Second Amendment right as ineffective as unnecessary delays in protest licensing would the First. Moreover, substantial delays are unneeded to determine whether someone is a felon or has been adjudicated as mentally ill, as the federal instant gun check program shows. These delays are also far more substantial than any “cooling off” period that would help prevent crimes of vengeance or passion, even assuming that such a reason for delay was compatible with the Second Amendment’s provision of a right to ready self-defense.

In a recent article, I offer new evidence about why the analogy between the First and Second Amendments is particularly appropriate. And surprisingly, that evidence, while never previously discussed in the context of the Second Amendment, also provides new support for the proposition that the Second Amendment articulates an individual right whose purpose was to protect personal safety, not just a collective right to be exercised through the militia. And it comes from none other than James Madison, father of the Constitution and drafter of the Bill of Rights. Talk about evidence hiding in plain sight!

11/19/2020

David Golove on the Supreme Court and the Original Understanding of the Alien Tort Statute
Michael Ramsey

At Just Security, David Golove: The Alien Tort Statute and the Law of Nations: New Historical Evidence of Founding-Era Understandings (part of an ongoing symposium on two consolidated cases currently pending at the Supreme Court, Nestle USA v. Doe and Cargill v. Doe).  From the introduction: 

The [Alien Tort Statute (ATS)] is now once again before the Court.  The most recent case, Doe v. Nestle, which focuses on allegations that the defendants’ facilitated child slave labor practices in the Ivory Coast, threatens to finish off whatever of Filartiga is still standing.  The critical difference between Doe, on the one hand, and Kiobel and Jesner, on the other, is that the corporate defendants are U.S., not foreign, corporations.  There are two principal issues, first, whether Kiobel’s presumption against extraterritoriality applies even when the defendants are U.S. nationals and, second, whether the Jesner Court’s rejection of corporate liability applies to U.S. as well as foreign corporations.  I address the first issue here.  It is the discovery of hitherto unknown and highly probative early historical precedents about the meaning and purposes of the ATS that prompts this essay.

Preliminarily, it is important to appreciate what is at stake in Doe.  The desirability of the U.S. courts’ being available as judicial forums for the enforcement of human rights standards globally is at least debatable.  For example, should ATS litigation be viewed as a laudable effort to improve human rights practices around the world, or is it another example of U.S. imperialism, in this instance being implemented through the judiciary?  Given the problematic nature of U.S. human rights practices, is it unduly hypocritical for the U.S. courts to assume the role of judging foreign governments and their officials for their human rights defaults?

Whatever answers one might give to these questions, the issue in Doe is importantly different.  The fundamental question before the Court is not whether U.S. courts will hold foreign human rights abusers accountable but whether they will hold U.S. human rights abusers accountable for what they do in other countries.  The answer the Court gives to that question will go far in defining how the nation conceives of its fundamental moral commitments as a member of the international community of nations.

And from the core of the argument (footnotes omitted):

The ATS was thus only one of a number of legal mechanisms and rules designed [during the founding era] to ensure that the U.S. government would not be held responsible for the violations of the law of nations committed by its citizens.  It is in light of this understanding of the purpose of the ATS that the presumption against extraterritoriality, recognized in Kiobel, should be interpreted and applied.  In Kiobel, the defendants were foreign corporations with limited contacts in the United States – they had “mere corporate presence” in the United States – and the actions for which they were sued had little or no connection to this nation.  There was thus no ground on which the United States could be charged with responsibility for the violations of the law of nations the defendants had allegedly committed.  For this reason, the Court’s ruling that the presumption precluded jurisdiction under the ATS was consistent with the core purpose of the ATS as the Court had interpreted it.

The Doe case is strikingly different, because the corporate defendants are U.S. entities.  In contrast to Kiobel, therefore, the tortious breaches of the law of nations alleged in the plaintiffs’ complaint, unless properly disavowed, could be attributed to the United States and cause the nation diplomatic embarrassment or worse.  The case therefore fits squarely within the core of the ATS, which was to ensure that the United States would not be charged with complicity in violations committed by its nationals.

In a case of this kind, the presumption against extraterritoriality is properly “displaced,” and nothing in Kiobel suggests the contrary. Indeed, in applying the presumption, the Court was keen both to review the context in which the statute was adopted, and the early understandings as to its scope, to ensure that application of the presumption was consonant with the Act’s purposes.  “[T]he historical background against which the ATS was enacted,” the Court reasoned, was plainly relevant in determining whether the presumption was applicable, and, as the Court in Morrison had observed, “‘[a]ssuredly context can be consulted’ in determining whether a cause of action applies abroad.”  The Kiobel Court then devoted the bulk of its opinion to considering the relevant early history.

Nothing in the Act’s language, nor its purpose, suggests that, when the tortfeasor was a U.S. national for whose actions the United States might be charged with responsibility, Congress was concerned about where the actions took place.  It was irrelevant whether the wrongful act was committed in U.S. territory, on the high seas, or in the territory of a foreign nation.  For example, circa 1789, whether a U.S. citizen committed an offense against the law of nations in the United States, or only after crossing the border into East Florida, then Spanish territory, would have made no difference.  If the United States failed to disavow the conduct by prosecuting the wrongdoer or providing a judicial forum in which civil liability could be imposed, it would have generated the same potential for diplomatic controversy.

Agreed.  I see no reason to think federal jurisdiction under the ATS should be limited to claims arising in U.S. territory.  The ATS's text grants jurisdiction in general terms.  No one thinks the federal diversity jurisdiction statute, which similarly grants federal jurisdiction in general terms, is limited to claims arising in U.S. territory. And as Professor Golove says, there's no reason to think the enacting Congress distinguished between claims arising in the U.S. and claims arising abroad.

But the plaintiffs (and I think Professor Golove) want a lot more than that.  They want U.S. courts to find an implied federal cause of action under the ATS to apply U.S. law to claims arising abroad.  That's much more problematic.  I hope to have more to say on this shortly.

11/18/2020

Kevin P. Tobia & John Mikhail: Two Types of Empirical Textualism
Michael Ramsey

Kevin P. Tobia (Georgetown University Law Center) and John Mikhail (Georgetown University Law Center) have posted Two Types of Empirical Textualism (Brooklyn Law Review, forthcoming) (22 pages) on SSRN.  Here is the abstract:

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an “objective” answer. This Essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The Essay expresses cautious optimism about new insight that empirical methods can bring, but it also warns against assuming that these methods will deliver uncontroversial, objective solutions in legal interpretation.

As a concrete illustration, the Essay analyzes the main statutory question presented in Bostock v. Clayton County (2020). Both Justice Gorsuch’s majority opinion and the dissents by Justices Alito and Kavanaugh offer avowedly textualist analyses of Title VII’s “ordinary meaning,” yet their reasoning and conclusions diverge. To help explain these differences, the Essay proposes a distinction between two types of empirical textualism, which we call the “ordinary criteria” and “legal criteria” versions. The former conceptualizes ordinary meaning as closely connected to empirical facts about how ordinary people understand statutory language; in effect, it equates ordinary meaning with ordinary understanding. The latter conceptualizes ordinary meaning differently, combining the common understanding of statutory terms with both their previously-established legal meanings and their legal entailments. Bostock exemplifies the difference between these approaches, with Justices Alito and Kavanaugh relying on the former and Justice Gorsuch on the latter. The Essay also presents a new experimental study of the key linguistic dispute in Bostock—public judgments about discrimination “because of” sex—that illustrates differences between these two approaches to empirical textualism.

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

11/17/2020

Federalist Society National Lawyers Convention Now on Video
Michael Ramsey

The 2020 Federalist Society National Lawyers Convention is now available on video via this link.  Some highlights include:

Address by Justice Samuel Alito

Address by Judge Janice Rogers Brown

Address by Eugene Scalia

Panel: Religious Liberty and the New Court (Religious Liberties Practice Group) (with Stephanie Barclay, Gerard Bradley, Eugene Volokh, Lori Windham, and Judge Neomi Rao as moderator)

Panel: The Law, China, and the Possible New Cold War (International Law and National Security Law Practice Group) (with Ambassador Richard Haass, Julian Ku, Mike Rogers and Judge Elizabeth Branch as moderator)

Panel: The Presidency and the Rule of Law (with Neil Eggleston, Jack Goldsmith, Boyden Gray, Theodore Olson and Chief Judge Edith Jones as moderator)

Panel: Emergency Powers and the Rule of Law (Federalism and Separation of Powers Practice Group) (with John Eastman, Ilya Shapiro, Elizabeth Wydra, John Yoo and James Ho as moderator)

11/16/2020

Farah Peterson: Expounding the Constitution
Michael Ramsey

Farah Peterson (University of Chicago Law School) has posted Expounding the Constitution (Yale Law Journal, Vol. 130, No. 1, 2020) (83 pages) on SSRN.  Here is the abstract:

Judges and statesmen of the early Republic had heated exchanges over the importance of hewing to the text in constitutional interpretation, and they advanced dueling interpretive prescriptions. That is why contemporary theorists of all persuasions can find support for their positions in the Founding era. But no side of the Founders’ debate over constitutional interpretation maps perfectly onto a modern school of thought. Modern scholarship has misunderstood the terms of the Founders’ debate because it sits on an unfamiliar axis. Instead of arguing over whether the Constitution was, for instance, living or static, this Article demonstrates that early American lawyers debated whether the Constitution should be interpreted according to the methodologies applicable to public or private legislation.

This distinction among different types of legislation has faded from view because modern legislatures almost never pass private laws—statutes that apply only to one person, group, or corporation. But in early America, private legislation was the majority of legislatures’ business. Generally applicable laws, like those Congress busies itself with today, were the minority. What’s more, American courts had fixed, predictable, and familiar rules of interpretation for each type of law. Private acts received stricter, more text-orientated interpretations while public acts were interpreted broadly and pragmatically to effectuate their purposes, taking into account new circumstances that the drafters may not have foreseen.

After ratification, critical policy differences emerged among American statesmen in the first Congress. Hamilton and Madison, once united as authors of the Federalist Papers, found themselves on different sides. Both insisted that the Constitution must be interpreted to vindicate their views, and in the process, they opened a debate about interpretation that would characterize the nation’s constitutional jurisprudence until the 1820s. The Federal Constitution was a novelty. But lawyers don’t tend to make new rules to suit new situations; we prefer to rely on precedent. And that is what these lawyers did, using legal tools devised for interpreting legislation—a form of written law with consistent interpretive rules that were part of the bread-and-butter practice of every American lawyer.

We cannot understand the major cases of the Marshall Court, including Marbury, Martin, and McCulloch without this context. In these cases, litigants argued over, and the Court wrestled with, whether public or private legislation provided the best analogy for the Federal Constitution. The answer dictated whether restrictive or pragmatic rules would govern its interpretation. The terms of these arguments would have been obvious to the legal thinkers of that generation. Yet, in spite of all the attention we have lavished on Hamilton, Jefferson, Madison, Marshall, Story, and their world, this central dynamic of their legal culture has remained unexplored.

This Article argues that, during framing and ratification, many of the Founders thought the Constitution would be interpreted according to the rules applicable to public legislation, although statesmen like Jefferson and Madison later took a different view. Chief Justice Marshall’s enduring commitment to the public-act analogy explains his embrace of “implied powers” in McCulloch and underpins the broad, nationalist vision in his other major decisions. These insights are not only critical to understanding those decisions on their own terms, they are also highly relevant to modern constitutional theorists who rely on early American precedent. If the Founders intended that the Constitution would be interpreted according to the rules of public legislation, then the “original” Constitution is a flexible and pragmatic charter, not a fixed and immutable artifact.

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

11/15/2020

James Macleod: Finding Original Public Meanings (Updated)
Michael Ramsey

James Macleod (Brooklyn Law School) has posted Finding Original Public Meanings (51 pages) on SSRN. Here is the abstract: 

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissent disagreed vehemently over the statute’s bar on discrimination “because of sex” — each side claiming that OPM clearly supported its interpretation. How can textualists’ OPM inquiry yield such divergent conclusions?

This Article introduces a new “applied-meaning-experiment” method to answer that question and develop the theory of textualism. The method asks ordinary readers to apply the relevant statutory language in context, under experimental conditions that minimize the effect of potential biases or differences between enactment-era and present-day usage. For Bostock, the applied-meaning-experiment method reveals that the majority was right: an “ordinary reader” at the time of Title VII’s enactment would have understood that it barred LGBT discrimination.

The insights from the applied-meaning-experiment method, however, extend far beyond the controversy in Bostock. In other contexts where textualists disagree over OPM, the method sheds light on how ordinary readers would have understood statutory terms at the time they were enacted. More importantly, the method helps diagnose why textualists might disagree about OPM in a given case. Textualists might lack probative evidence of OPM; but they might also implicitly disagree about what they’re looking for. Specifically, inquiry into actual reader understanding highlights two choices textualists inevitably make when determining a given term or phrase’s OPM: (1) the type of question whose answer would reveal the reader’s relevant “understanding,” and (2) the types of extratextual information that the reader would treat as relevant to answering it. To the extent that textualists have considered either question, they have done so inconsistently, without realizing what they are doing. By confronting each question directly, the applied-meaning-experiment method helps build out the theory of textualism in a way that’s needed in order for textualism to be a coherent and normatively attractive theory of interpretation.

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

11/14/2020

Leonid Sirota on Canadian Originalism
Michael Ramsey

Yesterday I mentioned the interesting Canadian law blog Double Aspect, which has an originalist orientation.  Here is a recent post from its founder Leonid Sirota:  Still Keeping It Complicated--The Supreme Court tries to bring more rigour to constitutional interpretation and takes a step towards textualism, but won’t admit it.  From the introduction: 

In my last post, I summarized the opinions delivered in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32. While the Supreme Court unanimously holds that corporations are not protected from cruel and unusual punishment by section 12 of the Canadian Charter of Rights and Freedoms, the majority (Justices Brown and Rowe, with the agreement of the Chief Justice and Justices Moldaver and Côté) and the principal concurrence (Justice Abella, with Justices Karakatsanis and Martin) strongly disagree about the proper approach to constitutional interpretation and to the role in this process of international and foreign legal materials.

As promised, in this post I present my thoughts on these opinions, primarily on their general approach to interpretation, though I’ll say something on the role of international and foreign materials too. I will, once again, begin with Justice Abella’s opinion, which in my view is representative of what I have described as “constitutionalism from Plato’s cave” ― the judicial creation of constitutional law out of abstract ideals favoured by the judges themselves rather than genuine interpretation of a constitutional text. I will then turn to the majority opinion, which repudiates constitutionalism from the cave, but also seemingly rejects what I regard as the best interpretive method, public meaning originalism. I will argue that there is less to this rejection than meets the eye.

One question on which I will say nothing, although the majority and the principal concurrence trade sharp accusations on it, is which of these opinions is more consistent with precedent. As Benjamin Oliphant and I have pointed out in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence”, the Supreme Court has never been consistent in how it interpreted the constitution, mixing and matching originalist and living constitutionalist approaches in any number of unpredictable ways. (Mr. Oliphant has developed this theme elsewhere too.) Justices Brown and Rowe are right to call for more rigour and consistency on this front; but they are wrong, as is Justice Abella, to suggest that has been any rigour and consistency in the past. Whatever their flaws, neither the majority nor the concurring opinion break with established law, because there is no real law to break with.

11/13/2020

Guy-Uriel Charles & Luis Fuentes-Rohwer on the Chiafalo Decision
Michael Ramsey

Guy-Uriel E. Charles (Duke University School of Law) and Luis E. Fuentes-Rohwer (Indiana University Maurer School of Law) have posted Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics (31 pages) on SSRN.  Here is the abstract:

This Essay examines Justice Kagan’s electoral college decision in Chiafalo v. Washington, which uses historical gloss—post Founding historical practices—to give meaning to the Constitution and to do so in a manner that is arguably inconsistent with the text and structure of the Constitution. We argue that Justice Kagan, the democracy Justice, uses historical gloss instrumentally to constitutionalize a particular and modern view of political participation—which is best reflected by American political practices—and to reject an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Chiafalo is an attempt to update and modernize our understanding of representation and political participation. We explore some issues that are raised for the historical gloss literature and for the practice of law and democracy when gloss is used in this way to interpret the Constitution.

For some previous Originalism Blog commentary on Chiafalo:

Mike Rappaport, The Originalist Disaster in Chiafalo

David Weisberg, A Second Opinion re: Chiafalo v. Washington

Michael Ramsey: The Faithless Electors Case: Not as Bad as it Might Have Been 

RELATED:  As a counterpoint, I recently came across this July 2020 post on Chiafalo from an interesting Canadian law blog called Double Aspect --

Leonid Sirota: Keeping Faith: A master class in public meaning originalism, delivered by the US Supreme Court’s Justice Elena Kagan.  From the introduction:

Earlier this week, the Supreme Court of the United States delivered its decision in Chiafalo v Washington, upholding the constitutionality of a state statute imposing fines on “faithless” presidential electors ― those who do not vote for the candidate who won their state’s popular vote. The majority judgment, given by Justice Kagan for a seven-judge majority (and indeed unanimous on some key points), should be of some interest to Canadian readers for what it says about constitutional interpretation and, in particular, about the role of conventions and practice. As others, notably Josh Blackman over at the Volokh Conspiracy, have noted, Justice Kagan’s opinion is a thoroughly, and intelligently, originalist ― which should remind skeptics of originalism inclined to dismiss it as a partisan affectation that it is not. 

11/12/2020

Justice Samuel Miller’s “Comical” Interpretation of the Citizenship Clause
Andrew Hyman

When a law says “X is Y and also Z,” it is ordinarily appropriate to conclude that X is Z, and to do so using an ellipsis: “X is… Z.”  If we apply this logic to the Citizenship Clause of the Fourteenth Amendment, we find that, “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens… of the state wherein they reside.“ Thus, a person whose residence is outside the states is not both (1) born or naturalized in the U.S. and (2) subject to the jurisdiction of the U.S.  This is very straightforward logic.

The Citizenship Clause does not explicitly say why it adopted this rule, but there are several possibilities. First, it may be that a person was not always considered to have been legally born where he was geographically born, and such legal fictions were well known in the 1860s. Second, the name “United States” may be used in the Citizenship Clause in its plural sense, as in Article 2, Section 1 of the Constitution (“the United States, or any of them”). Third, it may be that a person was not to be considered fully subject to the jurisdiction of the United States if his domicile was located in another country, or if he was not in amity with the United States. But the bottom line is that it does not matter which of these three explanations (or others) apply. The fact remains that the Citizenship Clause plainly says that all persons born or naturalized in the U.S. and subject to U.S. jurisdiction have their residence in one of the states; and, as I recently discussed, residence in this context means domicile.

This meaning of the Citizenship Clause is fully consistent with the outcome in the famous case of Wong Kim Ark, which involved a person born in the state of California in 1873 after it had become a state in 1850, while his parents had a permanent domicile there.  To those who may regard this understanding of the Citizenship Clause as stingy, it is vital to remember that its authors were trying to establish an unobjectionable core citizenship principle that would leave Congress free to expand upon that core principle by statute under other constitutional authority, such as the Naturalization Clause.

The interpretation that I've just described is different from the one that the U.S. Supreme Court gave in the Slaughter-House Cases in 1873:

Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

I agree with Professor Bryan Wildenthal that this statement by Justice Samuel Miller is “comical.”  Miller went a bit overboard in trying to sharpen the distinction between state and national citizenship, and he basically rewrote the language of the Citizenship Clause which actually makes quite clear that “all” people born or naturalized in the United States, and subject to the jurisdiction thereof, have their residence in one of the states, and that obviously includes "all" people who qualify as U.S. citizens under the Citizenship Clause.

Justice Miller further wrote that, “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  Miller had to base this assertion on the word “jurisdiction” alone, since he chose to mangle the actual language and structure of the rest of the Citizenship Clause, and of course the Court in Wong Kim Ark flushed Miller’s interpretation of the word “jurisdiction” down the drain: “This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness, as if the case before the court had called for an exact definition of the phrase, is apparent from its classing foreign ministers and consuls together….”  The same lack of care and exactness by Miller undermines his view that residence within a state is not pertinent to the Citizenship Clause’s grant of national citizenship, but the constitutional text certainly says it is pertinent.

In conclusion, I would like to state very directly whether I think the authors of the Fourteenth Amendment meant to require that people be domiciled in a state at the time of birth, in order to get citizenship.  The answer is generally yes as to constitutional citizenship, but no as to statutory citizenship, and for them statutory citizenship was no less valuable to a person than constitutional citizenship.  Not only did the Citizenship Clause allow states to confer state citizenship upon almost anyone at all, but it also left Congress free to confer U.S. citizenship upon almost anyone at all.  And Congress has done so numerous times, both before and after adoption of the Fourteenth Amendment.  I am not addressing here whether Congress has any power to revoke citizenship once granted, though I doubt it.

Another View on Court-Packing
David Weisberg

The question—Is court-packing constitutional?—has, I think, both enormous consequences and a very clear answer.  Article III is completely silent as to how many “Judges” shall sit on the “supreme Court.”  Therefore, the members of Congress may increase or decrease that number as they choose.  Moreover, the size of the Court changed 7 times in its first 80 years.  I’d think originalists would take that as strong evidence that changing that size is entirely consistent with the original meaning of the Constitution.

Prof. Rappaport suggests that it might be important to consider whether the motive behind a push to expand the Court is consistent with the “spirit” of the Constitution, even if nothing in the “letter” of that document prohibits expansion.  It is suggested, further, that the “necessary and proper” clause of Article I, Section 8, bars laws that are inconsistent with the “spirit” of the Constitution, citing McCulloch vMaryland.  Prof. Rappaport is not sure whether such an approach is right or wrong.  I think it is clearly wrong.

First, a very general point.  I’m not an originalist but, as I’ve explained elsewhere, I fully agree with the late Justice Scalia’s view that many of the Court’s most noted decisions, beginning in the Warren era and continuing thereafter, displayed disdain for democratic decision-making and an exaggerated notion of judicial competence and authority.  Justice Scalia championed his original-public-meaning originalism as a means to an end, namely, curtailing judicial overreaching.  The idea that laws that are consistent with the “letter” of the Constitution nevertheless may be struck down as inconsistent with the Constitution’s “spirit” is a gold-plated invitation to the judicial overreach Scalia abhorred.

It is suggested that expanding the Court might be inconsistent with the “spirit” of the Constitution because the Court is intended to be an independent branch of government.  The Court certainly is intended to be independent, but its independence is guaranteed (to the extent it can be) by life tenure, non-diminishing compensation, and the judicial oath.  Those who would expand the Court and then confirm new Justices can’t be sure of the result.  Pres. Eisenhower famously said that his two biggest mistakes were sitting on the Court.      

More fundamentally, the idea that the Court may be expanded for a good reason (one consistent with the Constitution’s “spirit”) but not for a bad reason (one that is inconsistent with that “spirit”) leads to incoherence.  The quintessential bad reason, we’re told, is that congressional majorities and the president want to ensure how future cases are decided—to pick an example at random, to ensure that the essential holding of Roe vWade will always be affirmed.  But if congressional majorities and the president sincerely believe the Constitution requires that affirmance, how does it violate the “spirit” of the Constitution to try to ensure that result?

Moreover, if one accepts that, depending on the motives of Congress, court-packing might or might not be constitutional, the question arises: How would the courts decide the question of constitutionality?  Some members of Congress would say they voted for expansion because the Court does not fairly reflect the diversity of the American people; others would say they voted to ensure the survival of Roe; others would say nothing.  How will the motivation for expansion be determined?      

Finally, consider the bleak drama that will unfold when the case reaches the Supreme Court.  The then-sitting Justices will have to decide whether the significance of their votes on the nine-member Court will be diluted by the addition of X number of new Justices.  Should they all recuse themselves because they have a direct interest in the outcome?  In contrast, if the Court recognizes that court-packing presents no constitutional issue (because the Constitution is completely silent regarding the size of the Court), the current Justices would avoid potentially embarrassing questions of conflict of interest by simply refusing to entertain a facially meritless question.

I personally believe court-packing would be a huge mistake, although it’s not unconstitutional.  Over time, beginning probably with the ‘borking’ of Judge Robert Bork, elected politicians have in effect been teaching Americans that the Court is just a third political body that should reflect partisan interests.  We have seen confirmation hearings where Senators seem to focus on everything but a nominee’s qualifications as a judge.  In 2016 we witnessed the non-confirmation non-proceedings for Judge Merrick Garland, which in my opinion violated the Senate’s implicit constitutional duty to consider and vote on nominations if there is reasonable time to do so.  When Donald Trump ran for president in 2016, he said that he would be “putting pro-life justices on the Court.”  And when he was running for president in 2020, Joe Biden confirmed that support for Roe would be a “litmus test” for his Supreme Court nominees.

Expanding the Court would be seen by Americans as additional proof that the Court is being, or has already been, transformed into a political institution; roughly half of them would think that’s a good thing, and the other half would think it’s bad.  It is dreadfully easy to imagine that, if Democrats expand the Court in 2021, then, when Republicans regain power, the Court will be expanded yet again.  Court-packing is a step neither party should take, but the Constitution is not a bar.  Let’s remember Justice Scalia’s favorite rubber-stamp: “Stupid, But Constitutional.”

11/11/2020

Lee Strang on Saikrishna Prakash's "The Living Presidency"
Michael Ramsey

In the Federalist Society Review, Lee Strang: Can Originalism Constrain the Imperial Presidency? From the introduction (footnotes omitted):

The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, by Professor Saikrishna Bangalore Prakash [available on Amazon here], is a readable, systematic, and well-reasoned description of today’s living presidency, as well as a roadmap showing the way back to the constitutionally-authorized office. The Living Presidency’s thesis is that today’s presidents routinely “alter the Constitution and laws” such that the office has “become the amending executive.” But, in the beginning, “the original presidency was not meant to be all-powerful [and] lacked the unilateral authority to amend the Constitution or to make, amend, or unmake statutory law.” Professor Prakash describes the causes of today’s out-sized presidency, details support for his claims that the living presidency departs from the Constitution’s original meaning, and then suggests means to tame the living presidency.

The Living Presidency is readable and accessible to lawyers and educated laymen. At one point, Professor Prakash refers to the “generations of schoolchildren who grew up watching Schoolhouse Rock’s catchy song and video ‘I’m Just a Bill.’” He also colorfully describes Justice Hugo Black’s statement that the president merely executes the law, calling it “as antiquated as a rotary dial telephone, at least if we use modern practice as the benchmark.” The Living Presidency is peppered with concrete examples supporting Professor Prakash’s points. For example, while detailing the presidents’ push to acquire the power to substantively amend federal statutes, he uses the example of President Barack Obama delaying implementation of the Affordable Care Act’s employer mandate via “transition relief,” which he justified by pointing to past presidents’ delayed implementation of tax legislation.  One of Professor Prakash’s most effective techniques is to propose thought experiments about alternative choices that could have been made by the Framers and Ratifiers. “[I]magine what Article II would look like,” he asks, “if it had been written in a radically different era.” Would Americans in 1975 have created such a powerful executive?

Part of The Living Presidency’s accessibility also stems from its clear organization. In Chapter 2, Professor Prakash methodically explains why presidents have accumulated the power to make and amend laws. He identifies and discusses multiple motivations that have caused presidents to push the boundaries of their authority, including the love of power, a hunger for fame, and a desire to keep their promises to voters. The Living Presidency overall likewise has a clear, interlocking structure that introduces Professor Prakash’s idea of the living presidency, then examines the causes of the living presidency in general, and then drills down into three of the most important ways the living presidency has grown.

And from later on:

Is Originalism the Best Way to Contain the Living Presidency? 

In the debates between originalists and nonoriginalists, a standard nonoriginalist move, as Professor Prakash notes, is to point out how the living Constitution is more normatively attractive than the original one—that it gets better results even if it fudges on procedure. The Living Presidency challenges that claim in two important ways. First and directly, Professor Prakash details how the bloated powers of the living presidency exceed what most Americans, regardless of their jurisprudential views, believe is healthy. Most Americans, for instance, do not want the President to be able to unilaterally enter into a land war overseas. By any objective measure, the living presidency is too powerful.

Second, the living presidency’s key mechanism of growth is past presidential practice, which is easy to manipulate to achieve immediate partisan goals. The partisans of the current occupant of the White House will marshal past presidential acts to support their president, while critics will marshal their own examples and distinguish the president’s support. For instance, both Democrats and Republicans have switched between supporting and opposing congressional regulation of the armed forces based on the Commander in Chief Clause, depending on whether Clinton, Bush, or Obama was president. This dynamic leads Professor Prakash to conclude that “muddled partisan disputes are about all we can expect under the living presidency approach.”

Originalism, by contrast and in principle, excludes resort to “modern politics or ethical considerations” in the dynamic of expanding presidential power, and therefore its “answers are clear.” Most of us will like some aspects of the original presidency and dislike other aspects. But most of us also wish to abandon the status quo: fights over indeterminate presidential practice aiming solely at current partisan advantage. The letter of party affiliation after a president’s name ought not be relevant to whether he has the power to employ “enhanced interrogation techniques,” or to “commit” but not “engage in” hostilities in Libya. Originalism holds out the promise of reducing both the growth of the living presidency and the partisan acrimony that erupts over how to interpret past presidential practices. ...

11/10/2020

Apportionment, Allegiance, and Birthright Citizenship
John Vlahoplus

Arguments of the President and his amici (the “Appellant Group”) in Trump v. New York (Supreme Court oral argument scheduled for 11/30) go beyond statutory grounds to assert that the Constitution supports or even compels the exclusion of unlawfully resident aliens from the count that apportions seats in the House of Representatives.  These arguments ignore early federal, state, and colonial immigration and naturalization laws.  They are inconsistent with fundamental constitutional principles, and they threaten longstanding precedents governing birthright citizenship and liability for treason.  Some even rely on discredited theories that would restrict or deny birthright citizenship for U.S.-born children of aliens.  The Supreme Court should reject these arguments and decide the case on statutory grounds, even if it analyzes the constitutional arguments using only materials and events through the ratification of the Fourteenth Amendment.

The Appellant Group argues that apportionment historically included aliens only because they were on a path to citizenship.  But early federal naturalization acts applied only to white immigrants.  The group provides no evidence that apportionment historically excluded others.  The group also argues that no federal law restricted immigration before 1875.  But a federal statute forbade entry to Black indentured servants beginning in 1808.  Treasury Secretary Cobb later explained that the statute’s language “leaves no doubt” that Congress “intended to provide in the most unequivocal manner against the increase of that class of population by immigration from Africa.”  Congress also federalized state laws forbidding entry to free foreign Blacks generally in 1803.  As a result of these laws and the prohibition of the slave trade, Secretary Cobb advised in 1858 against granting a vessel permission to depart a U.S. port for Africa for the purpose of boarding Blacks there and bringing them here.  Many other state and colonial laws also forbade immigration.  In 1786 a Virginia group complained that people had been living there for more than a year in violation of one such statute and that “their residence here is illegal.”  Americans were well aware of illegal immigration before the ratification of the Constitution and the Fourteenth Amendment.

The Appellant Group also argues that the Constitution only permits counting “inhabitants,” which they define thickly to exclude unlawfully resident aliens on the ground that they do not reside here permanently with significant ties to the country such as allegiance.  But unlawfully resident aliens owe allegiance to the United States.  Under the common law, alien friends and non-hostile alien enemies residing here are under our general protection, so they owe allegiance and can be held liable for treason.  This is also true for non-hostile alien enemies who arrive after hostilities begin, including those who come for economic reasons.  It is even true for prisoners of war captured here although they enter hostilely and without permission.  In addition, many immigrants who came before the ratification of the Fourteenth Amendment intended to return home, and many did—including forty to sixty four percent of Germans, southern Italians, and Hungarians who arrived in the great wave that began in 1830–50.  The Appellant Group provides no evidence that apportionment historically excluded aliens who intended to eventually return home.

The Appellant Group argues further that aliens in general, and unlawfully resident aliens in particular, must not be allowed “to redistribute ‘political power’ within” the United States through apportionment because that would be “fundamentally antithetical” to principles governing “the sovereign’s rights to define the polity (‘the people’).”  This just recycles an old policy argument asserted as early as 1867.  On the contrary, the Federalist 54 explains the principle justifying counting enslaved persons at all for apportionment, which also applies to unlawfully resident aliens:

In being protected . . . in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society . . . .

The arguments from allegiance and polity track the discredited consent theories of those who would restrict or deny birthright citizenship for U.S.-born children of aliens generally.  In attacking Justice Gray’s opinion in Wong Kim Ark, for example, John C. Eastman claims that Gray was “astoundingly incorrect” in asserting that an alien present in the realm owes obedience “and may be punished for treason.”  But Gray was correct, and Eastman is wrong—as he is about birthright citizenship generally.  The Court should reject the Appellant Group’s constitutional arguments and not allow Trump v. New York to surreptitiously alter longstanding principles governing apportionment, treason, and birthright citizenship.

This post is a shorter version of a paper (with citations) forthcoming in the British Journal of American Legal Studies and available on SSRN here.

11/09/2020

Is Court Packing Constitutional?
Mike Rappaport

One of the major issues in the run-up to the election was whether Democrats planned to follow-through on threats to pack the Supreme Court in response to President Trump’s appointment of three justices. As Republican control of the Senate appears more and more likely, this issue may become moot for now. But there is certainly no guarantee that it will disappear from the Democrats’ rhetorical playbook. One question about the prospect has not received the attention it deserves: Is court packing even constitutional?

My views on the constitutionality of court packing have evolved. I used to believe that court packing was clearly constitutional under the Constitution’s original meaning, even though it was a pernicious practice that should strongly be resisted. But I have changed my mind. I now believe that it is unclear whether court packing is constitutional under the original meaning. Although my argument does not have a clear conclusion, the possibility that court packing might be unconstitutional is significant because virtually everyone else seems to think it is constitutional.

When I first planned to write on this subject, my position was going to be that originalism allowed court packing, but that it was not clear why nonoriginalists thought it was constitutional. Will Baude, however, beat me to the punch on this one (and I strongly recommend his post). The originalist argument for court packing is pretty straightforward: The Constitution gives Congress the power to increase the number of Supreme Court justices, and it does not appear to restrict the reasons why Congress may increase that number. Thus, Congress may increase the number of Supreme Court justices, even if its purpose is to change how the Supreme Court resolves cases.

While this argument suggests that originalism allows court packing, it is not clear why nonoriginalists also generally seem to accept the constitutionality of court packing. Nonoriginalists often do not feel limited by the text and frequently rely on modern political principles. Until the recent surge in Democratic support for court packing, most constitutional lawyers believed that court packing involved an illegitimate attack on the independence of the Supreme Court. It is not clear why this apparently nontextual political principle is entitled to any less respect from nonoriginalists than many other principles that they do accept, such as “one person, one vote.” As Baude says, it would be good to know what the specific nonoriginalist argument is.  (For some thoughts on this by a nonoriginalist, see here.)

But I have now changed my mind on the originalist analysis of court packing. The Constitution does not simply say that Congress can add additional justices to the Supreme Court. Instead, it gives Congress this power through the Necessary and Proper Clause. Congress has the power to “make all laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution . . . in the Government of the United States, or in any Department or Officer thereof.” Since the Constitution establishes a Supreme Court, Congress can help to carry into execution the Supreme Court’s authority by adding positions to the Court.

While Congress can add positions, it can only do so if its law is “necessary and proper.” And here is where the issue becomes interesting. It is not clear what the original meaning of the necessary and proper authority of Congress is. While Congress would have the authority to court pack under some reasonable interpretations, it would not have that authority under other reasonable interpretations.

In particular, the question is what constraints “necessary and proper” imposes. The “necessary” component is often thought of as involving the means-end connection that Chief Justice Marshall discussed in McCulloch v. Maryland. How strict the means-end connection must be is an important and difficult question, but that is not the key issue here, since it seems obvious that establishing additional offices can help to carry into execution the authority of the Supreme Court.

Rather, it is the meaning of “proper” that is central here. One possibility is that proper does not add anything to necessary. Rather, the two terms should be read together as requiring the means-end scrutiny discussed in McCulloch. That has been the main (but not the only) way the Supreme Court has interpreted the clause in modern times.

But there are other possible interpretations of proper. An important understanding of proper is that it requires that the law Congress is passing not violate the spirit of the Constitution. The idea here is that the “necessary” means-end power can be extremely broad, which would allow the Congress to undermine important constitutional principles, such as federalism and separation of powers. Therefore, the word “proper” was added to require that this “necessary” authority not violate the spirit of the Constitution. In that way, Congress could not use its necessary authority to undermine the Constitution.

Significantly, support for this interpretation comes again from McCulloch, where Chief Justice Marshall summed up the meaning of the necessary and proper authority as follows: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional” (emphasis added). So Marshall himself seemed to recognize that laws inconsistent with the spirit of the Constitution violate the Necessary and Proper Clause. 

What, then, is the spirit of the Constitution, and how does it differ from the letter of the Constitution? The letter of the Constitution refers to the constitutional text. The spirit, in contrast, refers to the values underlying the text, as reflected in intent, purpose, or structure. Thus, something violates the spirit, but not the text of the Constitution, when it conflicts with the intent, purpose, or structure of the Constitution.

Court packing—understood as a law expanding the number of justices in order to change how the Court resolves cases—may violate the spirit of the Constitution. Such a law would not exercise the judicial power (and therefore would not violate the letter of the Constitution) because it would merely be adding seats and then allowing appointments to be made to those seats.

But it might violate the spirit of the Constitution. Congress would be exercising its broad authority over the number of seats to control the decisions of the Supreme Court. This would undermine the purpose and structure of the Constitution’s establishment of an independent Supreme Court. If Congress could simply expand the number of seats on the Supreme Court, the Court would not be independent.

By contrast, Congress could expand the number of seats on the Supreme Court in ways that would not violate the spirit of the Constitution. For example, if Congress believed that the existing number of justices could not keep up with the workload or that a larger number would lead to more accurate decisions, expanding the Supreme Court would be entirely constitutional.

This distinction between laws intended to pack the Court and laws intended to regulate its operation was implicitly recognized by the infamous court packing scheme proposed by the Roosevelt administration during the New Deal. The Roosevelt Administration claimed it was expanding the size of the Supreme Court for legitimate reasons—because the older justices could not keep up with the workload—but this justification fooled no one. Everyone understood the real reason was to control the decisions of the Supreme Court.

If these interpretations of the Necessary and Proper Clause and the constitutional spirit are correct, then court packing that is done to control the decisions of the Court violates the Necessary and Proper Clause.

I am not sure that this interpretation of the Necessary and Proper Clause is correct. Nor am I sure it is wrong. I believe it is a quite plausible interpretation. And therefore it is plausible that court packing unconstitutionally violates the Necessary and Proper Clause.

Reminder: Federalist Society National Lawyers Convention This Week (for Free)
Michael Ramsey

A reminder from the Federalist Society that the National Lawyers' Convention takes place this week, online and for free.  Also, Justice Alito will speak on Thursday.

The Federalist Society’s 2020 National Lawyers Convention will be hosted all next week as a free virtual conference. All events, including a just-added address by Justice Alito, are online, open to the public, and free of charge (there is a nominal fee for a substantial amount of CLE).

Please review the schedule of events and register HERE for all panels you would like to attend – each panel has a unique registration link so please register accordingly. Or you can simply access the live stream on the date and time of the most interesting events via the FedSoc website, YouTube, Facebook, or Twitter.

Justice Alito will deliver the keynote address next Thursday at 8:00 p.m. eastern time. Other Convention highlights include addresses by Judge Janice Rogers Brown (ret.) and Labor Secretary Eugene Scalia, along with a nearly endless list of panel discussions:

  • Religious Liberty and the New Court
  • EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach
  • Prosecutorial Discretion, Partisanship, and the Rule of Law
  • Regulatory Practice and Oversight in 2021 and Beyond
  • Rule of Law, or Just Making it Up? First Amendment Tiered Scrutiny
  • Freedom of Association in the Legal Profession
  • Regulating Social Media
  • Are MDL Judges Too Powerful?
  • The Law, China, and the Possible New Cold War
  • Agency Leaders on Labor Policy
  • Intellectual Property Rights and the Rule of Law
  • Modern Quandaries of Law Enforcement
  • The Future of the Second Amendment’s Right to Keep and Bear Arms:  From the Supreme Court to Social Unrest in the Streets
  • Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency
  • Emergency Powers and the Rule of Law

To repeat, the entire Convention is free to attend and is open to the public. We hope you will join us for this week of profound and timely discussion.  

Please forward this notice as widely as possible.

Click to register for the National Lawyers Convention.

11/08/2020

Robert Leider: Constitutional Liquidation, Surety Laws, and the Right to Bear Arms
Michael Ramsey

Robert Leider (George Mason University - Antonin Scalia Law School) has posted Constitutional Liquidation, Surety Laws, and the Right to Bear Arms (22 pages) on SSRN.  Here is the abstract:

In recent years, some scholars have claimed that early American law did not recognize a general right to bear arms in public. Although most early state court decisions recognized such a right, these scholars contend that these decisions were peculiar to the antebellum South, which had a uniquely permissive weapon carrying culture. Outside the South, they argue, many states heavily restricted the public carry of weapons through surety laws. These surety laws required that, on complaint of a plaintiff who had “reasonable cause to fear an injury, or breach of the peace,” a person would have to post a bond to keep the peace if he went armed “without reasonable cause to fear an assault or other injury.” These scholars argue that the surety laws (which they call the “Massachusetts Model”) were descendants of the common law crime of going armed to the terror of the people, which, they claim, also generally prohibited private citizens from going armed. Based on this historical practice, they argue that the Second Amendment was not understood to encompass a general right to publicly carry weapons.

This book chapter challenges that historical narrative, and more importantly, disputes the relevance of the Massachusetts Model for constitutional interpretation. First, this book chapter argues that the relevance of nineteenth-century laws and judicial decisions does not primarily come from their ability to elucidate the original public meaning of the right to bear arms in 1791. Instead, their relevance lies in the idea of “constitutional liquidation,” that postenactment practice can settle the meaning of legal text.

Next, this chapter argues that the right to bear arms did not liquidate in favor of the constitutionality of the Massachusetts Model. No evidence has emerged that the passage of the surety laws was the product of thoughtful constitutional interpretation. And no course of practice emerged. As applied to the carriage of weapons for lawful purposes, the surety laws went largely unenforced. Likewise, there is almost no known record of American courts enforcing the common law crime of going armed to the terror of the people against individuals carrying weapons for lawful purposes.

Finally, the lack of enforcement meant that the surety laws failed to settle the meaning of the right to bear arms. Quite the contrary, all Massachusetts Model jurisdictions (including Massachusetts) adopted statutory criminal law governing the carriage of weapons in public. None of these states adopted a general ban on public carry. Instead, most states restricted only the carrying of concealed weapons, while a few others (including Massachusetts) had more lenient laws. Ultimately, the “Massachusetts Model” did not serve as a model for restricting public carry anywhere, even in Massachusetts.

11/07/2020

Richard Primus: Why Article I's Vesting Clause Does Not Support the Doctrine of Enumerated Powers
Michael Ramsey

Richard Primus (University of Michigan Law School) has posted Herein of 'Herein Granted': Why Article I's Vesting Clause Does Not Support the Doctrine of Enumerated Powers (Constitutional Commentary, forthcoming) (43 pages) on SSRN.  Here is the abstract:

Reasoning from the nonparallel wording of the Constitution’s three Vesting Clauses, scholars across the ideological spectrum read Article I, Section 1 to establish the principle that Congress may exercise only powers affirmatively enumerated in the text of the Constitution. This “enumerationist reading” of the Clause is deeply flawed and should be discarded. It fits the Clause’s text poorly. It is in tension with important facts about constitutional structure. Perhaps for those reasons, it is not a reading of the Clause that Americans recognized in the Constitution’s first years: in the First Congress, nobody read the Clause that way, despite ample incentives to do so. If the nonparallel phrasing of the three Vesting Clauses is to be given substantive significance, a better way to do it is to read Article I, Section 1 as a limit on where legislative powers are vested, not as a limit on what powers Congress may exercise. But that reading is not free of difficulties, either. The best way to understand the non-parallel phrasing is probably to regard it as an accident of the drafting process, one that carries no substantive significance in constitutional law. Close reading is an important interpretive method, but not every word choice in a document is substantive, even when that document is the Constitution.

11/06/2020

Ilan Wurman: The Removal Power
Michael Ramsey

Ilan Wurman: Arizona State University - Sandra Day O'Connor College of Law) The Removal Power: A Critical Guide (2020 Cato Supreme Court Review 157) (46 pages) on SSRN.  Here is the abstract: 

In Seila Law v. Consumer Finance Protection Bureau (CFPB), the Supreme Court held that the creation of an independent agency headed by a single director with for-cause removal protections violates the executive power provisions of the Constitution. This essay summarizes the scholarly and judicial debates over the removal power, specifically over the meaning of “the executive power,” the historical practice, and the Court’s crucial precedents. Although it seeks to provide a reasonable survey of the competing positions, it stakes out and tentatively defends particular answers. It then critically assesses the Court’s decision in Seila Law. In summary, the Court took a minimalist approach by refusing to extend earlier precedents upholding for-cause removal provisions to the “new” situation of single-director agencies. Nevertheless, it is unclear after Seila Law what is left of the reasoning of the earlier, functionalist precedents. The decision thus represents the Court’s continued return to formalist constitutional interpretation in separation of powers cases. The essay then also assesses the dissent, which is littered with citations to the academic literature and other historical materials. Interrogating those sources shows that most do not actually support the dissent’s position.

Part I canvasses four plausible readings of the Executive Vesting Clause in Article II: the cross-reference theory, the residuum (or residual) theory, and two versions of the law-execution theory. Which theory is correct has implications for the removal power. The prevailing formalist theory is the residual thesis, which maintains that all “executive” power is vested in the president except as otherwise limited in the Constitution, and that removal is an “executive” power that is therefore vested in the president. I shall suggest (and I have elsewhere argued) that the residual thesis is likely wrong. But that should not affect the removal question: “Removal” is part of “the executive power” to execute law. In fact, Chief Justice William Howard Taft, the author of Myers v. United States, rejected the residual thesis.

Part II briefly canvasses the historical record and responds to related recent scholarship. Without retreading too much old ground, it argues that removal was likely understood to be part of “the executive power” to execute law under the British Constitution and that recent scholarship maintaining the contrary is not persuasive. This part then turns to American practice. It argues that the proponents of a presidential removal power in the famous 1789 removal debates are best understood as arguing that the removal power was part of “the executive power” to execute law. Although the ultimate conclusion of the First Congress in the “Decision of 1789” is open to conflicting interpretations, what matters is the force of the arguments. This part then argues that there is no distinction between agencies enforcing financial legislation and agencies enforcing other types of legislation.

Part III (briefly) explains the Court’s most important precedents. It argues that Chief Justice Taft did not embrace a residual theory of executive power in Myers v. United States, but rather the position that the removal power is part of “the executive power” to execute law. It then maintains that Humphrey’s Executor v. United States, decided only nine years after Myers, was wrongly decided. Although there is most assuredly government power that can be exercised by more than one branch, Humphrey’s stands for the mistaken and unconstitutional proposition — at least if the Executive Vesting Clause is a grant of power — that there is some government power that need not be exercised by any of the named constitutional actors. As I shall explain, however, Humphrey’s is possible to defend on originalist grounds if the only power the president has to execute law is that which can be derived from the duty of faithful execution. Finally, this part examines the two most recent of the important removal decisions, Morrison v. Olson and Free Enterprise Fund v. PCAOB, one of which was thoroughly functionalist, the other of which was semi-formalist.

Part IV then critically assesses Seila Law v. CFPB in light of these debates over meaning, historical practice, and precedent. It concludes that not much is left of the functionalist precedents after Seila Law, notwithstanding the plurality’s attempt to issue a limited decision. It then critically assesses the dissent’s arguments, particularly its use of academic literature and historical materials.

This is a super helpful summary of the competing positions, and I agree with the bottom line (unsurprisingly, as I joined Professor Wurman's amicus brief in Seila Law).  Of course, I do not agree with his rejection of the "residual thesis" -- I've defended a version of  it at length here and here.  But I agree that the residual thesis isn't linked to the removal power question.  Removal is an aspect of the President's core executive power to enforce the law.  The President may or may not have other residual executive powers vested by Article II, Section 1, but in any event the President has that one.

11/05/2020

Daniel Epps on Nonoriginalism and Court-Packing
Michael Ramsey

At Dorf on Law, Daniel Epps: Non-Originalism and Constitutional Arguments About Changing the Supreme Court's Size.  From the introduction:

Todd Henderson published a piece in Newsweek arguing that "there is a fatal flaw in Democrats' plan to 'pack' the Court if they win—it is plainly unconstitutional." ...  Will Baude ... shortly thereafter responded with a thoughtful blog post in which he noted that Henderson's piece has "already attracted a ton of criticism" and arguing that the "criticism deserves more scrutiny." 

In this post, I'm going to respond to Will's post. I have three goals. First, I'll try to explain why there haven't been well-developed arguments about the constitutionality of Court-packing/expansion, and why Henderson's piece wasn't likely to prompt them. Second, I'll offer some larger thoughts about how academics should respond to arguments like Henderson's, prompted by Will's post. Third, I'll offer some tentative arguments about the constitutionality of changing the Court's size.

I'm particularly interested in this part of his argument:

That something hasn't happened much before doesn't mean it's unconstitutional (see, Leah Litman's Debunking Anti-Novelty). It still remains that it would be hard to justify an argument that the size of the Court can never be changed (since it clearly has been). Instead, one would have to argue that changing the size of the Court becomes unconstitutional when done for certain reasons. This is the view that Henderson suggests in his piece: 

... The Democrats' intent is to pack the Court for political reasons, plain and simple. This would be unprecedented in our history. And, the intent to destroy the third branch—the one that ensures the other two comply with the Constitution—is sufficient to find it illegal.

The problem with this argument is that it seems to prove too much. If changing the Court's size for partisan or ideological reasons is unconstitutional, why wouldn't other actions by Congress or the Senate in particular relating to the Supreme Court be unconstitutional when done for partisan reasons? What about not holding hearings or a vote for a nominee simply because he was nominated by a Democratic President? What about rushing through a confirmation days before an election—another unprecedented event—based on the President's justification that the new justice was needed to rule in his favor on election-related disputes? 

I can construct plausible constitutional arguments for the unconstitutionality of these actions just as easily as Will can make constitutional arguments against Court packing. And, to be sure, some progressives have made such arguments. But for the most part, that hasn't been the tack that Democrats took in response to the Garland and Barrett precedents, or to the abolition of the filibuster to get Justice Gorsuch confirmed. Rather than arguing these various events were unconstitutional, Democrats (including Senators) largely argued that the Republicans' actions were legal but norm-breaking.

This raises a broader point about nonoriginalism: it's hard to know what counts as an argument and what doesn't.  Professor Epps says norm-breaking doesn't mean unconstitutional.  But at least some scholars during the Garland episode said it did (or might): see here and here from Robin Bradley Kar and Jason Mazzone (arguing that "historical traditions like these [regarding Supreme Court nominations] can ripen into constitutional rules that inform the best interpretation of constitutional text and structure").  I don't know how to resolve this debate from a nonoriginalist perspective.  To what would one appeal?  What are nonoriginalism's first principles?

11/04/2020

James Phillips on Fulton v. Philadelphia
Michael Ramsey

At Newsweek, James Phillips (Chapman): Correcting Scalia's Biggest Mistake. From the introduction:

Justice Antonin Scalia was a legal maestro. But maestros are human. And humans make mistakes. ... [I[n Fulton v. City of Philadelphia [oral argument today], the Supreme Court can begin to correct what is arguably Scalia's biggest mistakeEmployment Division v. Smith.

In Smith, writing for the Court, Scalia rejected the religious liberty claims of two Native Americans. They had been fired from their jobs for using peyote—a hallucinogenic drug—during a Native American Church service. More significantly, Scalia essentially wrote that when a law is neutral and generally applicable, religious liberty must give way.

Otherwise, he feared anarchy would result. And he worried about giving judges too much discretion to balance religious liberty claims with governmental interests. Instead, Justice Scalia declared that religious liberty could be protected by majorities through elected leaders. Ironically, as the intellectual godfather of modern originalism, the justice did not look to the Free Exercise Clause's original public meaning in his analysis.

As Professor Phillips notes, Scalia was oddly coy in Smith, saying only that the plaintiffs had not proved the original meaning of the free exercise supported them.  This leaves an opening for the current Court's originalists to vote to overrule Smith: if new evidence is offered (and there has been a lot of academic writing against Smith's conclusion since that decision) perhaps they can justify a different outcome based on new evidence.  I don't think Fulton is the case that will overrule it, but I wouldn't be surprised if at least one concurring originalist Justice calls for reexamining Smith.

(And Scalia's biggest mistake was actually Boyle v. United Technologies Corp.)

11/03/2020

Vermeule and the Sense-Reference Distinction
Chris Green

Last week, long-time non-originalist Adrian Vermeule entered again (see, e.g., here and here) into the constitutional-theory fray with A Euclid for Civil Liberties. Vermeule quotes the beginning of Justice Sutherland's classic 1926 distinction of meaning from application in Euclid v. Ambler Realty: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise." Vermeule leaves off, however, Sutherland's next sentence: "But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall." 

"[T]he meaning of constitutional guaranties never varies" is, of course, the key commitment of originalism. Yet Vermeule characterizes this passage from Sutherland as non-originalist: "This is, in effect, a nonoriginalist, developmental justification for the administrative state put in the framework of common-good constitutionalism and grounded in the due process clause." If we distinguish meaning from application, though--or analytic from synthetic judgments, or Fregean sense from reference, or Carnapian intension from extension, or Millian connotation from denotation--then the sort of development that Sutherland and the rest of the Court had in mind in 1926 was very different from the sort of development that non-originalists like Vermeule usually have in mind today. Just a few months after Euclid, for instance, the Taft Court decided Myers v. United States, which Justice Scalia used as his exemplar of originalism in his Taft lecture, Originalism: The Lesser Evil. In Wisconsin Central v. United States, Justice Gorsuch distinguished meaning from application for the Court in a very Euclidean way, and he was certainly not embracing contemporary nonoriginalism when he did so. 

In ignoring Justice Sutherland's commitment to unchanging constitutional meaning, perhaps Vermeule has imbibed W.V.O. Quine's criticisms of the Fregean/Carnapian/Millian tradition lingering in the waters of the Charles River. But perhaps Vermeule has instead decided to reframe his own non-originalism in terms merely of changing applications. Like Eric Segall, who once responded to my explanation of the sense-reference distinction by conceding, "I agree that judges should not change the Constitution’s 'criterion' as Green is using that term," perhaps Vermeule's new comments represent a surrender to the idea of binding and unchanging constitutional meaning, as long as that idea's limited consequences are laid bare as they are in Euclid. If so, welcome to originalism, Professor Vermeule!

Vincent Munoz on Religious Liberty
Michael Ramsey

At Law & Liberty, Vincent Munoz: The Founders’ Religious Liberty, Beyond Rakove (reviewing Beyond Belief, Beyond Conscience by Jack Rakove).  From the introduction:

In Beyond Belief, Beyond Conscience, Pulitzer-Prize-winning historian Jack N. Rakove returns to the American Founding, this time to explore the “radical significance” of the free exercise of religion. Rakove sets forth his task as “to explain how the quandaries of Religion Clause doctrine are not merely functions of differences in judicial thinking or ideological commitments, but rather reflect conditions and tensions embodied in our historical experience.” The slim volume elegantly and informatively addresses the historical contexts in which religious freedom emerged in Europe in the 16th and 17th centuries, became a constitutional right in late 18th-century America, and then developed in modern American Supreme Court jurisprudence. Insofar as it sets forth the various historical circumstances that allowed religious freedom to become a constitutional right, it offers a nice introduction to the subject. The book, however, does not quite articulate the Founders’ understanding of religious freedom correctly, which limits the work’s merit as an intellectual history and its usefulness to evaluate contemporary originalist church-state jurisprudence. 

And in conclusion:

Rakove’s most significant omission relates to how anti-Catholicism shaped modern Establishment Clause jurisprudence, which in turn has affected contemporary notions of religious free exercise. The book is curiously silent on the subject, lacking references to excellent works by Philip Hamburger or Donald Drakeman. A more thorough account would have explored how Justice Black and Rutledge’s dislike of Catholics motivated their “wall of separation” opinions in Everson v. Board of Education (1947). That case and its progeny have fostered the idea that religious freedom primarily means freedom from the influence of others’ religious beliefs and practices. This idea manifests today in those who say Amy Coney Barrett should be ineligible for the Supreme Court on account of being a faithful Catholic. It also is present in a more sophisticated way in scholarship advocating against “third-party harms,” an idea that Rakove endorses at the end of his book. The concept, which lacks much precedential support but nevertheless gained steam as a result of activist scholarship attempting to derail religious liberty exemptions from Obamacare’s “HHS Mandate,” holds that “third parties” should not be impacted on account of other individuals’ religious beliefs and practices. In practice, it means that religious believers should keep their religious beliefs and practices within the confines of their own private homes.

While Rakove all but endorses the “naked public square,” to borrow Richard John Neuhaus’ term, he says that historians in their capacity as historians cannot say which church-state “doctrinal developments are correct [and] which [are] flawed.” Like many of Rakove’s arguments, that is true in one sense and not true in another. It is true that historians are not judges, and it is refreshing to see a bit of academic humility, especially from such a distinguished historian. At the same time, originalist judges contend that they are applying the original meaning of the Constitution. It would seem that those versed in our founding history should be able to render judgment about the historical accuracy of originalist judicial doctrines. With due respect to the difficulties and complications of doing good history, why write a book about the Founders’ understanding of religious liberty if one can’t say who has appropriated that understanding correctly?

Making these judgments would require a precise understanding of the Founders’ political philosophy of religious freedom. Beyond Belief, Beyond Conscience is nicely written and often informative, but it does not offer that depth of understanding. As such, it fails to fully explain the “radical significance” of the Founders’ constitutionalism when it comes to the free exercise of religion.

11/02/2020

Will Baude on Court-Packing and Non-Originalism
Michael Ramsey

At Volokh Conspiracy, Will Baude: Why isn't Court-Packing Unconstitutional?  From the introduction:

My colleague Todd Henderson has an opinion piece at Newsweek arguing that court-packing—adding additional Justices to the Supreme Court, for the purpose of changing the Court's decisions—is unconstitutional. I don't agree with the piece, but it has already attracted a ton of criticism and that criticism deserves more scrutiny.

First, basic background. During the New Deal, Franklin Roosevelt threatened to pack the Supreme Court. But in the end he didn't. There is a scholarly debate about whether the Court changed course in response to the threat, and also about whether President Roosevelt would have prevailed if the Court had acted differently.

One remarkable document that emerged from that conflict is the report from the 1937 Senate Judiciary Committee, on which Todd relies, which argued at length that court-packing for the purpose of manipulating the Supreme Court was unconstitutional, because it violated the spirit of the Constitution and the separation of powers. Before you dismiss challenges to court-packing as frivolous, you should really read it. And these arguments appeared much more widely in the legislative debate at the time as well.

And in conclusion:

I am an originalist, and I do not think court-packing is unconstitutional. Non-originalists seem to agree, and I assume they have good reasons of their own for doing so. But those reasons are not obvious to me, and the constitutional debate would benefit if they were spelled out, with their implications.

11/01/2020

Federalist Society 2020 National Lawyers Convention November 9-13 Will Be Free of Charge
Michael Ramsey

The following is announcement from the Federalist Society:

The Federalist Society’s 2020 National Lawyers Convention will be hosted as a virtual conference from November 9 – 13. All events are online, open to the public, and free of charge (there is a nominal fee for a substantial amount of CLE). The theme of the Convention is “The Rule of Law and the Current Crisis.” 

Please review the schedule of events on the Federalist Society's website and register HERE for any panel you would like to attend – each panel has a unique registration link so please register accordingly. Or you can simply access the live stream on the date and time of the most interesting events via the FedSoc website, YouTube, Facebook, or Twitter. The only difference is that you will be unable to participate in the live Q&A portion of the panels if not a registered attendee.

Some anticipated highlights of the Convention include addresses by Judge Janice Rogers Brown, whose speech is titled “Love Letter to the Late, Great American Republic”, and Secretary of Labor Eugene Scalia.

The Convention also includes an important discussion between Professors Robert George and Cornel West on “Freedom of Speech, Freedom of Thought, the Black Lives Matter Movement, and the Cancel Culture.” Showcase panels will cover: “Law, Justice, Wokeness and the Protests: Where Do We Go From Here?” and “The Presidency and the Rule of Law.”

The Convention will also feature a breakout panel from each of our fifteen Practice Groups, including:

  • Religious Liberty and the New Court
  • EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach
  • Prosecutorial Discretion, Partisanship, and the Rule of Law
  • Regulatory Practice and Oversight in 2021 and Beyond
  • Rule of Law, or Just Making it Up? First Amendment Tiered Scrutiny
  • Freedom of Association in the Legal Profession
  • Regulating Social Media
  • Are MDL Judges Too Powerful?
  • The Law, China, and the Possible New Cold War
  • Agency Leaders on Labor Policy
  • Intellectual Property Rights and the Rule of Law
  • Modern Quandaries of Law Enforcement
  • The Future of the Second Amendment’s Right to Keep and Bear Arms:  From the Supreme Court to Social Unrest in the Streets
  • Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency
  • Emergency Powers and the Rule of Law

To repeat, the entire Convention is free to attend and is open to the public. Through balanced and spirited debate, we aim to make thoughtful, diverse discussions of pressing legal and policy matters engaging and accessible to all. We hope you will join us for this week of profound and timely discussion. Please forward this notice as widely as possible.

Click to register for the National Lawyers Convention.

10/31/2020

How Many State Citizenships is a Billionaire Entitled to Under the Fourteenth Amendment?
Andrew Hyman

I am not a billionaire, and you probably aren’t either, but still it’s interesting to consider someone who owns houses in many states, and this hypothetical may help to clarify the meaning of the Fourteenth Amendment’s Citizenship Clause.  That clause says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  If a billionaire owns residences in fifteen different states, is he entitled under the Fourteenth Amendment to state citizenship in all fifteen states?

I think the answer is pretty clear.  The word “state” in the Citizenship Clause is singular, so the constitutional entitlement is to state citizenship in only one state. 

In turn, this implies that the word “reside” was not used in its broadest sense in the Citizenship Clause.  Bouvier’s Law Dictionary was the leading American law dictionary in the 1860s when the Fourteenth Amendment was written and adopted.  It includes several definitions of the word “residence,” which say nothing about the concept of “primary residence” but those definitions do speak quite a bit about “domicil.”  Here is the leading definition of the word “residence” from Bouvier’s:

RESIDENCE. The place of one's domicil. (q. v.) There is a difference between a man's residence and his domicil. He may have his domicil in Philadelphia, and still he may have a residence in New York; for although a man can have but one domicil, he may have several residences. A residence is generally transient in its nature, it becomes a domicil when it is taken up animo manendi. Roberts; Ecc. R. 75.

So, it seems fairly clear that when the word “reside” was used in the Citizenship Clause, the intended meaning was “domicil” (also spelled “domicile”).  The Citizenship Clause apparently assumes that someone who is constitutionally entitled to citizenship has a domicile in one of the states.  Of course, even if one is not constitutionally entitled to citizenship, one can still be entitled to it by statute.

Guest Posts at Volokh Conspiracy on Originalism and Birthright Citizenship
Michael Ramsey

Here are my guest posts from this week at Volokh Conspiracy, where I was blogging about my forthcoming article Originalism and Birthright Citizenship:

Originalism and Birthright Citizenship: The original meaning of the citizenship clause answers some questions and raises some others.

The Original Meaning of "Born … in the United States": It encompassed all territory under U.S. permanent sovereignty.

The Original Meaning of "Subject to the Jurisdiction" of the United States: It meant under the authority of U.S. law, thus excluding foreign diplomats, foreign armies and (at the time) Native American tribes.

Applying the Citizenship Clause's Original Meaning to Modern Controversies: The original meaning gives birthright citizenship to the U.S.-born children of undocumented migrants, even though its drafters didn't realize it would.

Originalism and Accidental Outcomes: Should we follow the original meaning even when it resolves issues in ways its enactors did not foresee?

10/30/2020

Jud Campbell: Natural Rights, Positive Rights, and the Right to Keep and Bear Arms
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted Natural Rights, Positive Rights, and the Right to Keep and Bear Arms (32 Law & Contemp. Probs. 31 (2020)) (22 pages) on SSRN.  Here is the abstract:

The first judicial opinions interpreting the right to bear arms embraced vastly divergent views of the right, leading scholars to perceive these decisions as being in disarray. This article argues that these conflicts reflect exactly the sorts of disagreements that one would expect given that Americans viewed the right to bear arms as a natural right and as a positive right. Indeed, the first right-to-bear-arms decisions exemplified tensions that emerged when judges confronted claims about natural rights and positive rights in a changing social and legal landscape. As a natural right, the right to carry firearms could only be limited in promotion of the public good, which was quintessentially a question of legislative judgment. Yet emergent attitudes about judicial review counseled against absolute deference to legislatures. As a positive right, the right to bear arms offered more determinate legal protection. But its tradition-based content did not specify how to resolve novel problems, and entrenched norms posited that judges could only apply existing law — not make it up. Enforcing natural rights and positive rights in novel circumstances thus required judges to adopt rules that were over-inclusive, under-inclusive, or a combination of both. And that is precisely what one sees in the first right-to-bear-arms cases. The article concludes with a discussion of how this history bears on contemporary debates about the Second Amendment.

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

10/29/2020

John Harrison: Executive Discretion in Administering the Government's Rights and the Delegation Problem
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted Executive Discretion in Administering the Government's Rights and the Delegation Problem (30 pages) on SSRN.  Here is the abstract:

Governments regulate private conduct. They also exercise rights of ownership and contract that are like those of private people. From the founding to today, executive officials have exercised substantial policy discretion in managing the government's own resources. That practice is consistent with the text and structure of the Constitution. Administering the government's resources, and making policy judgments in doing so, is at the core of carrying the law into execution. The executive itself does not have power to create programs that employ federal resources such as federal funds, but when Congress creates such a program, it may leave many important choices to the executive. At most, the Constitution requires that Congress provide an intelligible principle to guide that discretion. The non-delegation principle concerning regulation of private conduct may be more demanding than that, but the exercise of the government's own rights is a distinct category of executive activity. The practical scope of this principle is substantial. Federal spending today is a major tool through which Congress affects behavior. Like spending and contracting, federal regulation through licensing takes the form of the administration of the government's resources. Licensing of broadcasting, for example, rests on the principle that the airwaves are public and not private property, and that private people may use that resource only on terms the government sets. Licensing schemes put the government in the position of an owner, able to give licenses that permit conduct that otherwise would violate the owner's rights. Congress therefore may give executive officials substantial discretion when it creates a licensing system. The important question is the extent of Congress's power to put the government in the position of an owner. Two well-known early examples of delegation to the executive, the Indian Commerce Act of 1790, and the regulation of steamboat safety, took the form of licensing. The historical evidence does not indicate that proponents of those systems justified delegation on the grounds suggested here. It does suggest that steamboat licensing was understood to be based on federal control of the public right of navigation of interstate waterways. The executive function of administering the government's resources is a distinct category of executive activity from the standpoint of constitutional structure, and the principles that apply to delegation in other contexts need not apply in that context.

10/28/2020

More on Gendered Pronouns and Female Presidents
John Vlahoplus

The recent debate over gendered pronouns and female presidents shows that there is rarely anything new under the constitutional sun.  George W. Paschal analyzed the issues in an 1868 work.  Following are excerpts, not in their original order, with my comments bracketed. 

Paschal begins by discussing the presidential eligibility clause:

“And here, again, the language of this clause has to be construed in connection with other clauses and the general understanding of mankind.  For there is nothing in this clause to indicate sex unless it be the word ‘President.’” [The Constitution repeatedly refers to the President using “he,” “him, and “his.”]

“The claims of males to be alone entitled to be ‘Senators’ and ‘Representatives,’ is believed to rest alone upon the masculinity of the word, the single ‘he,’ and the common sense and understanding of men.”  [The Constitution refers to Senators and Representatives using “he,” e.g., “an Inhabitant of that State in which he shall be chosen.”]

“Our advocates for equal ‘Woman’s Rights’ might consider this a very narrow definition; and they might even urge that the pronoun ‘he,’ in other clauses, does not protect woman from the severest criminal statutes [art. IV, sec. 2 requires extradition of one charged with felony or treason “on Demand of the executive Authority of the State from which he fled.”  If this provision applies only to males, women could avoid liability for those severe crimes by fleeing to a different state.  But advocates of women’s rights would not claim that the use of “he” protects women from extradition.]; nor would it deprive woman of the guaranties accorded to ‘him’ and ‘himself,’ standing for the antecedent of ‘person’ in the Vth and VIth amendments.”  [The Fifth Amendment accords a guaranty against self-incrimination using the word “himself.”  The Sixth Amendment accords witness and counsel guarantees using the words “him” and “his.”  Advocates of women’s rights would not accept that those words deprive women of the guarantees.]

How, then, should we interpret these provisions?  Some originalists argue that we should interpret the Constitution as the average American English speaker would have at enactment.  This might lead to the conclusion that only men can be President, Vice President, Senator and Representative.  After all, Paschal refers to the “common sense” interpretation of “he” in the provisions that apply to members of Congress.  And the average English speaker in 1789 America might have believed that references to “he,” “him,” and “his” in the relevant provisions meant that only males could hold those positions.  The average speaker might have considered it absurd to think that women were authorized to hold those positions given their limited political power in the eighteenth century, just as some originalists consider it absurd that American English speakers would have thought that “because of sex” in Title VII covered homosexuals in 1964 given criminal laws of the period.  Some originalists also look to early practices to discern original meaning, such as early claims practices under Title VII, and no woman ran for the House until 1866 or for president until 1872. 

Paschal, however, asserts that the same “common-sense tests” (plural) used to interpret “all other instruments” should apply when interpreting the Constitution: 

“That is to construe it by its language, nature, reason, and spirit, objects and intention, and the interpretations of contemporaneous history, having an eye to the old law, the mischief and the remedy.  See Story’s Const. chapters three, four, and five, and voluminous references.”

In a word, pluralism.

MICHAEL RAMSEY ADDS:  Here is a biographical sketch of George W. Paschal, who seems to have had quite an interesting life.