05/27/2020

New Issue of the Harvard Journal of Law and Public Policy
Michael Ramsey

Recently published: the latest issue of the Harvard Journal of Law and Public Policy (vol. 43, issue 1, Spring 2020), featuring essays based on presentations at the Federalist Society's event "The Second Amendment in the New Supreme Court."

Here is the Table of Contents:

The Second Amendment in the New Supreme Court

The Second Amendment and the Spirit of the People Renée Lettow Lerner

The Right to Bear Arms: For Me, But Not for Thee? Stephen P. Halbrook

The Surprisingly Strong Originalist Case for Public Carry Laws Jonathan E. Taylor

“Assault Weapon” Bans: Unconstitutional Laws for a Made-up Category of Firearms Mark W. Smith

Comments on Assault Weapons, the Right to Arms, and the Right to Live Jonathan E. Lowy

Articles

On the Basis of Identity: Redefining “Sex” in Civil Rights Law and Faulty Accounts of “Discrimination” Ryan T. Anderson

Property, Privacy, and Justice Gorsuch’s Expansive Fourth Amendment Originalism Nicholas A. Kahn-Fogel

Do Platforms Kill? Michal Lavi

Note

The Senate vs. the Law: Challenging Qualification Statutes Through Senate Confirmation Eli Nachmany

 

 

05/26/2020

Richard Reinsch Reviews Robert Reilly's "America on Trial"
Michael Ramsey

At National Review, Richard M. Reinsch: In Defense of a Liberty Worthy of Man (reviewing [favorably] America on Trial: A Defense of the Founding, by Robert R. Reilly (Ignatius Press 2020)).  From the introduction:

In America on Trial, Robert Reilly excavates the deep foundations of the American Founding. He finds in them the unwritten constitution of Western political philosophy and theology that stretches back to Jerusalem, Athens, and Rome. Reilly focuses on the tradition of “right reason,” that is, the metaphysical, epistemological, anthropological, and theological roots of constitutional government. Those roots are thick but forgotten, if not denied, by most of the West’s academic and intellectual class. In his study, Reilly reintroduces contemporary readers to ideas about the primacy of reason over will, universal truth, natural law, and monotheism. From these touchstones, he shows how other truths were discovered: man created in the imago Dei, equality of persons, and the moral grounding of freedom — which empty the state of the divine power it held in the classical world — along with the intrinsic good of happiness and its inseparable relationship with virtue. These are the pillars of constitutional thought and practice that must be understood before we can think about law and politics.

This is a book, therefore, “not so much about the Founding itself as about the provenance of its ideas. Its purpose is to demonstrate that the ideas of democratic constitutional government have only one set of roots in human history.” An underlying concern is the role that our understanding of reason and will plays in establishing constitutional government: “The drama hinges on two opposing conceptions of reality: Is it constituted by reason or by will?” The answer to this question, Reilly repeatedly argues, shapes what we think about the substance of law. This is because the “primacy of reason means that what is right flows from objective sources in nature and the transcendent, from what is, as Plato proposed. Primacy of will, on the other hand, means that what is right flows from power, that will is a law unto itself.”

Reilly describes the ideas of an array of thinkers linked across centuries who contributed to the bedrock of American constitutionalism: Aristotle, Cicero, Augustine, Thomas Aquinas, Francisco Suárez, Richard Hooker, Algernon Sidney, and John Locke are some of the highlights. He also surveys a competing set of thinkers whose ideas he says created the conditions for political absolutism: William of Ockham, Niccolò Machiavelli, Thomas Hobbes, Martin Luther, and Sir Robert Filmer are some of the dim lights. Reilly argues that our country encapsulates in an exemplary manner Western civilization’s always difficult attempt to forge a liberty worthy of man, a being between God and the beasts. His challenging claim is that the preconditions for becoming a constitutional people are rooted in our philosophical ideas about essence, reality, human nature, and God. Such ideas inevitably shape whether we think we are capable of the morally demanding requirements of freedom. They ground and inform the responsibility needed to govern ourselves according to reason and to flourish.

And here is the book description from Amazon:

The Founding of the American Republic is on trial. Critics say it was a poison pill with a time-release formula; we are its victims. Its principles are responsible for the country's moral and social disintegration because they were based on the Enlightenment falsehood of radical individual autonomy.

In this well-researched book, Robert Reilly declares: not guilty. To prove his case, he traces the lineage of the ideas that made the United States, and its ordered liberty, possible. These concepts were extraordinary when they first burst upon the ancient world: the Judaic oneness of God, who creates ex nihilo and imprints his image on man; the Greek rational order of the world based upon the Reason behind it; and the Christian arrival of that Reason (Logos) incarnate in Christ. These may seem a long way from the American Founding, but Reilly argues that they are, in fact, its bedrock. Combined, they mandated the exercise of both freedom and reason.

These concepts were further developed by thinkers in the Middle Ages, who formulated the basic principles of constitutional rule. Why were they later rejected by those claiming the right to absolute rule, then reclaimed by the American Founders, only to be rejected again today? Reilly reveals the underlying drama: the conflict of might makes right versus right makes might. America's decline, he claims, is not to be discovered in the Founding principles, but in their disavowal.

05/24/2020

Title VII:  A Response to James Phillips
John Vlahoplus

In a recent draft article noted here, James C. Phillips argues that Title VII’s prohibition on discrimination because of sex only applies “to adverse treatment that rests on prejudice—i.e., unfair beliefs or attitudes—directed at some or all men, or at some or all women.”  Phillips’ interpretation is contrary to the Court’s major discrimination decisions and ignores important text in Title VII. 

Precedents.  Under the Court’s major precedents, any adverse decision that takes into account sex, race or other enumerated category discriminates against the employee because of his or her sex, race or other category.  Beliefs and attitudes are relevant to potential defenses such as that of a bona fide occupational qualification.  Consider the “reverse discrimination” decision in Ricci v. DeStefano.  The employer considered race in promoting employees in a good-faith effort to avoid disparate-impact liability under Title VII.  The employer did not take into account any unfair beliefs or attitudes about any race. The Court nonetheless found that the employer discriminated against the non-promoted employees because of their race: 

Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See § 2000e-2(a)(1) . . .  Whatever the City’s ultimate aim — however well intentioned or benevolent it might have seemed — the City made its employment decision because of race . . .  The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

This interpretation is consistent with the Court’s decision in Loving v. Virginia, which found “racial classifications in [marriage] statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the ‘integrity’ of all races.”  It is also consistent with important lower court decisions interpreting Title VII, such as Williams v. Saxbe: “That a rule, regulation, practice, or policy is applied on the basis of gender is alone sufficient for a finding of sex discrimination. . .  The reason for the discrimination under Title VII is not necessary to a finding of discrimination. . .  Rather, the reason for the discrimination may only be relevant in considerations of whether the policy or practice is based upon a bona fide occupational requirement.”  Similarly, the court in Evans v. Sheraton Park Hotel relied on a Title VII race discrimination precedent to find that using a sex classification per se discriminates against employees based on their sex: 

The unions in ILA were segregated on the basis of race. The unions here were segregated on the basis of sex.  The precise statute (42 U.S.C. § 2000e-2(c)(2)) involved in ILA is the one involved here.  It specifically prohibits discrimination based on race, color, religion, sex, or national origin . . .  Congress, in enacting Title VII found classifications based on sex inherently invidious.  We think the District Court correctly held that maintenance of unions segregated on the basis of sex constitutes a per se violation of 42 U.S.C. § 2000e-2(c).

Other text in Title VII.  Phillips applies a principle of compositionality to what he purports to be “the whole operative language of Title VII,” which he quotes as “discriminate against any individual . . . because of such individual’s  . . . sex.” However, Title VII has several operative provisions, only some of which include the term “discriminate against.”  Courts do not distinguish the provisions based on whether they include the term.  The Ricci Court specifically found that the employer’s promotion decisions violated § 2000e-2(a)(1), which includes the term “discriminate against.”  But the Court also referred to the singular “disparate-treatment prohibition contained in . . . § 2000e-2(a)” even though § 2000e-2(a)(2) does not contain the term “discriminate against.”

The Evans court found that § 2000e-2(c)(2) “specifically prohibits discrimination based on race, color, religion, sex, or national origin.”  But that subsection does not include the word “discrimination” or any variant of it.  Subsections -2(c)(1) and -2(c)(2), on the other hand, do include the term “discriminate against.”  The textual difference is irrelevant.  The court concluded that sex segregation “constitutes a per se violation of 42 U.S.C. § 2000e-2(c)” generally, without regard to a specific subsection.

The precedents are controlling.  Regardless of whether a specific provision of Title VII includes the term “discriminate against,” an employer cannot take adverse employment actions because of an individual’s sex absent a lawful justification such as a bona fide occupational qualification.  The employer’s beliefs and attitudes are instead relevant to the question whether such a justification exists.

05/23/2020

Josh Blackman and Seth Barrett Tillman on Faithless Electors
Michael Ramsey

At Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman: What are Presidential Electors?  From the introduction:

Last week, we posed three questions concerning the characterization of presidential electors. Are they "subordinate state officers"? Do they perform a "federal function"? Do they hold a "Public Trust under the United States"? In this post we will answer each of these three questions. 

And as to the first:

First, electors cannot be "state officers," of any kind. These positions were created by the Constitution. In light of U.S. Term Limits v. Thornton (1995), the power to regulate electors "is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States . . . because that Amendment could only 'reserve' that which existed before." The position of federal elector for President and Vice President was created by the Constitution of 1788. 

We do not take a position on the question presented in Thornton: whether states have the power to enact ballot access laws that, as a practical matter, impose additional substantive qualifications on members of Congress. Rather, our analysis turns solely on the issue of whether the states have the authority to constrain the discretion of federal presidential electors when casting their ballot for president and vice president. We think this issue is akin to whether states have the authority to constrain the discretion of Senators, for example. Prior to the Seventeenth Amendment, state legislatures chose these federal officials; no one would have contended that the states could control the discretion of Senators as "subordinate" state officials.

Agreed (see here).  But their reasoning then runs in a different direction from mine.

05/22/2020

Mark Frassetto on Originalist Methodology in Second Amendment Cases
Michael Ramsey

Mark Frassetto (Everytown for Gun Safety) has posted Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases (21 William and Mary Bill of Rights J., forthcoming) (31 pages) on SSRN.  Here is the abstract:

This article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis — specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality — can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” Examining how courts answer these threshold questions and make nuanced judgments about history is necessary if courts are going to make consistent and predictable decisions in Second Amendment cases.

In researching this article, the author looked at fifty of the most significant Second Amendment cases across the federal circuit courts and analyzed their treatment of several methodological points. Ultimately this research shows that, while there is near unanimous national consensus within the federal circuit courts on the overall methodology with which to assess Second Amendment challenges — a framework for deciding cases known as the “two-step test” or the “two-part test” — there are important unresolved methodological issues that have an important impact on how Second Amendment cases are analyzed and decided. These methodological issues, which exist within the consensus framework, allow judges to influence the ultimate decision in a case while appearing to apply objective criteria. This article aims to bring these issues to the fore and to encourage further consideration of these important originalist methodological points.

05/21/2020

The Oath Argument at Sea
Evan Bernick and Chris Green

Charles Barzun, famous in constitutional-theory circles for his attack on Baude-Sachs original-law originalism, takes aim in a post on Balkinization at the oath argument for originalism that one of us posted last week. That argument depends on our jointly-authored draft for its first part. There, we use contemporary and contingent social facts concerning constitutional practice—rather than the general nature of writtenness or “what interpretation just is”—to ground our claims about current constitutional obligations in the nature of the original Constitution. The second part of the argument depends on Green’s premise-seven argument about constitutional indexicals to tie the nature of the original Constitution, not to marks on parchment, but to the meaning those marks expressed in their original context. We hasten to add that the “original Constitution” includes any changes made through processes authorized by the Document ratified in 1788.

Barzun says that linchpin of our argument is premise (4), which says that current constitutional culture thinks that today oath-takers promise to support the same entity—the same Constitution—to which George Washington swore an oath. However, at the very end of his post, he admits that the sociological aspect of (4)—which is all it is intended to cover—is probably true. We are probably right that “most of us today do think that our Constitution is the same as the one at the founding.” This is quite a striking concession for the chief academic critic of Baude and Sachs.

Barzun’s objection is not to (4) itself, but to the use we make of this supposed “sameness” between our Constitution today and the Founders’ Constitution. What is sameness, after all, anyway? More after the jump.

Continue reading "The Oath Argument at Sea
Evan Bernick and Chris Green" »

Scalia on Merryman
Andrew Hyman

In 1861, President Lincoln purported to suspend habeas corpus along rail lines in Maryland that were used for Union troop movements.  Congress was not in session at the time.  The constitutionality of the suspension was denied by Chief Justice Taney (“at chambers”) in Ex parte Merryman.  143 years later, Justice Scalia discussed this matter in his Hamdi v. Rumsfeld dissent:

Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151–152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3 Story §1336, at 208–209.

Lincoln may have had other ways to accomplish similar goals, without suspending the writ, as Justice Scalia described:

Where the commitment was for felony or high treason, the [Habeas Corpus Act of 1679] did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time…. [T]he practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under §7 would not exceed approximately three to six months.

So, Lincoln might have been able to keep Merryman and his cohorts on ice until Congress returned.  But, Taney almost certainly would have tried to release them on bail immediately, perhaps claiming that the details of the 1679 Act were not binding, or that Merryman would probably never be brought to trial (in fact Merryman was never tried).

Another option that Lincoln likely considered was to designate Merryman and his cohorts as prisoners of war, so they could be kept in military confinement.  That option was advocated by, for example, U.S. District Judge John Cadwallader, who was the brother of an Army General deeply involved in the Merryman case.  But there were drawbacks to that approach too.  Not everyone who commits treason is engaged in warfare, and vice versa.  Moreover, the eminent English jurist Lord Mansfield wrote to another British official in August of 1776 that in this gray area the choice may well belong to the prisoner (“it is their own doing”) to either seek a writ of habeas corpus and risk being tried criminally, or instead choose POW status.

Justice Scalia focused attention on two factors: “English practice and the Clause’s placement in Article I.”  Regarding the latter, Taney erroneously opined in Merryman that Article I, Section 9 of the Constitution “has not the slightest reference to the executive department,” and everyone now agrees that neither that section’s Appropriations Clause nor its Foreign Emoluments Clause limits only Congress.  Moreover, the draft Suspension Clause initially mentioned the federal “legislature,” but that was deliberately removed.  So, the best argument against what Lincoln did is that it allegedly conflicted with English practice.  According to the legal historian Sidney George Fisher:

The Habeas Corpus Act can only be suspended by Parliament; but in the absence of Parliament, or even when Parliament is in session, and the case demanded instant and secret action, the Ministers of the Crown, when the public safety has, in their opinion, required it, have habitually taken the responsibility of suspending the benefits or privilege of the writ. When Parliament meet, they immediately ask for a bill of indemnity, and also for a suspension of the act itself, should the danger continue. The consent of Parliament is therefore required for any invasion of personal liberty, either before or after such invasion, has always been asked since the statute of 31 Charles II, and has always been granted.

So, old English practice does support a limited presidential power to suspend the privilege of the writ of habeas corpus without prior congressional authorization, but the president puts himself in peril if Congress does not subsequently consent to it.  Another issue is whether Congress waited too long to give its retroactive consent to Lincoln’s actions with regard to Merryman, and congressional action later in 1861 was probably good enough.  In the interim, Lincoln had power to do what he did, and Taney erred.

Further Thoughts on the SOGI Cases before the Supreme Court
David Weisberg

James Phillips and Ryan Nees offer (herehere and here) dueling versions of corpus linguistics (“CL”) analyses of that part of Title VII which makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]”  42USC Sec. 2000e-2(a)(1).  That language currently is in focus because the U.S. Supreme Court has sub judice in which plaintiffs assert that Title VII prohibits employers from discharging employees because of the employees’ sexual orientation or gender identity (“SOGI”).  The conflicting CL analyses present issues that are enormously recondite and obscure.  But, in my view, they amount to breaking a butterfly upon a wheel.  There other, simpler ways to resolve these cases. 

First, compare the above actual text of Title VII with this hypothetical version: “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, sexual orientation, gender identity, or national origin.”  I think every competent speaker of English would agree that the actual language of Title VII and the hypothetical language have different meanings.  That is, they have different meanings today, and they would have been understood to have different meaning in 1964.  (Indeed, I think there is a real question, which CL might indeed resolve, whether in 1964 the average intelligent native speaker of American English would have assigned any meaning at all to the phrase “gender identity”.)  The SOGI plaintiffs ought to prevail only if the two versions can reasonably be said to have the same meaning at some relevant time.  Having failed to make that showing, the plaintiffs should lose.

The same point can be made in this way: no one could truthfully say that the gay applicant was not hired or the gay employee was fired “because of such individual’s … sex.”  If one took an oath to tell the truth, the whole truth, and nothing but the truth, one would have committed perjury if, in answer to the question “Why was this male applicant rejected?”, someone with knowledge of all the facts asserted: “He was rejected because of his sex.”  Any competent speaker of English understands that this answer is true only if the employer never hires men, or never hires men for the position in question.  If the applicant was rejected because he was in a sexual relationship with another man, the whole truth is that he was rejected for just that reason, and not because of his sex.    

Implicitly conceding that the plain meaning of Title VII refutes their position, the SOGI plaintiffs argue that plain meaning is irrelevant, because the word ‘because’ in the statute has—or, at the very least, can fairly be given—a technical, legalistic meaning: the word ‘because’ denotes ‘but for’ causation.  Thus, if an employee is, e.g., discharged because of sexual orientation, analysis reveals that the individual’s sex must be a ‘but for’ cause of the firing, which implies the employee was fired “because of such individual’s… sex” in violation of Title VII. 

We know that ‘but for’ causation is typically applied in personal injury cases to determine whether, in the train of physical causation that ultimately resulted in plaintiff’s injury, some specific negligent act or omission was sufficiently incorporated in that train to be a proximate cause of the injury.  An employer’s motive for discharging an employee is not any part of a train of physical causation, unless one thinks of the mind/brain as a kind of Rube Goldberg mechanism in which a squirrel takes a nut from one side of a balance scale, causing the scale to tilt, which then upends a glass of water, which … etc.  The concept of ‘but for’ causation would, on its face, seem inapplicable to human motives and decision-making.  Nevertheless, during oral argument several Justices seemed to seriously entertain the idea.

The ‘but for’ gambit has two flaws, and one of them is fatal.  The first flaw—nonfatal, but nevertheless troubling—is that the ‘but for’ argument seemingly applies only to sex, and not to any other characteristic protected in Title VII.  Suppose, e.g., an employee is married to a person of a particular national origin, and the employer fires the employee for just that reason: the employer abhors persons of that particular national origin and anyone associated with such persons.  The spouse’s national origin would seem to qualify as a ‘but for’ cause of the termination, but, because the employee’s own national origin was irrelevant to the employer’s decision, there could not conceivably be a violation of Title VII.  The same would be true of an employer who fires an employee because of the race, color, or religion of the employee’s partner or spouse, where the employee’s own race, color, or religion plays no part in the decision.

The fatal flaw in the ‘but for’ position is that it generates a reductio ad absurdum.  The SOGI plaintiffs contend that a gay male employee who is fired would not have been fired ‘but for’ his sex.  But, by precisely the same token, the male employee would not have been fired ‘but for’ his partner’s sex.  That is, if a male employee had a female partner, there would be no firing.  And if both ‘but for’ causes are thought to operate simultaneously—that is, if both the male employee’s sex were different and his male partner’s sex also were different—that would result in a female employee with a female partner, and that employee also would be fired by an employer who by hypothesis abhors same-sex relationships.  Each ‘but for’ cause—the employee’s sex, and the employee’s partner’s sex—equally qualifies as the ‘but for’ cause of the termination.  Thus, one and the same firing both violates Title VII (because the sex of the employee is the ‘but for’ cause) and does not violate Title VII (because the sex of the employee’s partner is the ‘but for’ cause, and we have seen that the protected characteristics do not extend to partners or spouses of employees).  That result—a single act that simultaneously violates and does not violate a statute—is absurd.

05/20/2020

Steven Douglas Smith: Why School Prayer Matters
Michael Ramsey

Steven Douglas Smith (University of San Diego School of Law) has posted Why School Prayer Matters (7 pages) on SSRN.  Here is the abstract:

Recently President Trump has been emphasizing the importance of school prayer and promising “big action” on the subject. Although the President’s understanding and intentions are difficult to discern, his statements provide an occasion for remembering the audacity of the Supreme Court’s school prayer decisions, and their transformative significance not only for the jurisprudence of church and state but for the national self-understanding.

And from body of the paper:

[The] regular recitation [of prayer] in public schools was expressive of– and constitutive of-- a nation that considered itself to be, as the Pledge of Allegiance puts it, “under God.” This understanding was subtly communicated both to fidgeting or distracted students and to the citizenry as a whole. Conversely, the official elimination of school prayer– its elimination on the proclaimed if implausible premise that the nation’s constitutive instrument, the Constitution, prohibited such prayers– both expressed and helped to inculcate a very different national self-understanding. This newer self-understanding represented a decisive break with American traditions. Although the words “under God” were added to the Pledge in the 1950s, they were of course taken from perhaps the most revered official expression in our history: we are, Lincoln had declared in his Gettysburg Address, “this nation, under God.” And Lincoln was speaking within a well-established constitutional tradition. Thus, in the first presidential inauguration, George Washington had offered these earnest words:

[I]t would be peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe . . . . No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency . . . .

Through much of American history, such unapologetic invocations were common enough. Even irreverent and supposedly “secular” figures like Thomas Jefferson eloquently called upon deity in their official statements. And as late as 1952 the Supreme Court itself could declare that “we are a religious people whose institutions presuppose a Supreme Being.” Insofar as constitutional jurisprudence from the school prayer decisions onward has insisted on a secular governmental sphere, it has in a very real sense cut us off from our own past. We gaze back at Washington and Jefferson and Lincoln from across a gaping constitutional divide.

And in conclusion: 

But might that traditional self-understanding ever be revived as an official matter-- in actual constitutional doctrine? And might the judicial decisions that more than any others helped to marginalize and displace the founding and traditional understanding of this nation as one “under God”– namely, the school prayer decisions-- themselves come in for judicial reexamination?

The prospects may seem unlikely. But who knows? History, like its Author, can work in mysterious ways.

05/19/2020

Anthony Peacock Reviews "The Cambridge Companion to The Federalist"
Michael Ramsey

At Law & Liberty, Anthony A. Peacock (Utah State, Political Science): Debating Publius (reviewing The Cambridge Companion to The Federalist (Jack N. Rakove & Colleen A. Sheehan, eds., 2020)).  From the introduction: 

... The Companion, which exceeds 600 pages, consists of 16 essays by prominent academics in the fields of political science, history, and law and runs the gamut of the ideological spectrum. As the editors note in their Introduction, The Federalist is thought by many, at least in political science, to be the consummate “exposition of the original meaning of the Constitution;” perhaps the best explanation of both the theory underlying the Constitution and its meaning by those who ratified it.

But historians disagree with political scientists. So Rakove and Sheehan propose. Being much more skeptical about whether The Federalist or the ratification debates actually captured the true state of public opinion in the late 1780s, historians doubt whether ideas prevailing at any time can fix the meaning of a written text like the Constitution. “The legal fiction of originalism might have its uses within the courts of constitutional jurisprudence,” the editors remark, “but it could never provide an adequate way to assess the true meaning of the Constitution. For historians the clock of constitutional time never stops running.” We might translate the dispute here in today’s vernacular to the debate between constitutional originalists and those who advocate for a “living constitution,” a constitution susceptible to ever-changing meaning as history progresses.

To some extent this is how the contributions to the Companion read. There are those who view The Federalist as indeed the consummate guide to the Constitution. Others, like the opening essay by David Siemers in defense of the Anti-Federalists, pooh-pooh it. Indeed, one of the more mysterious features of the Companion is that its very first essay is from front to back a broadside against Publius’ work.

In conclusion:

The defects of the Companion are few while the richness of the essays and the comprehensiveness of their analysis of The Federalist is a reminder not only of just how different the founders’ political science was from the political science of today but how much more capacious their constitutionalism was. Rakove and Sheehan are to be commended for putting together a volume that addresses an old text in way that reminds us what a faithful companion Publius was to the Constitution and will continue to be well into the future.

For what it's worth, I (and I think most legal academic originalists) would disagree with both political scientists and the historians (as the review describes them).  The Federalist is not the "consummate exposition of the original meaning of the Constitution" -- it's an important source, to be sure, but it's not a wholly objective one; it's one side of an argument, and it's by no means infallible or incapable of guile. On the other hand, while it may be true that "For historians the clock of constitutional time never stops running" (whatever that may mean), the clock of constitutional time had a starting point, and The Federalist is an important (though not definitive) guide to meaning at the time the clock started.

05/18/2020

Originalism and Secession
Michael Ramsey

In his recent book  American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020), F.H. Buckley (a non-originalist) says that “the constitutional originalist must . . . conclude that the states had a right to secede.”  (This is mostly an aside, as the book is not principally about originalism).  In the current Balkinization symposium on Professor Buckley's book, Robert Tsai (American University) objects

[T]he answer isn’t obvious. Buckley doesn’t adequately grapple with the text of the Constitution, which neither establishes a right to secede nor prohibits it explicitly. Yet it does expressly change the terms of political community, as well as its foundations. It does so by dropping the Article of Confederation’s language of “confederation” and the more strident rhetoric of state “sovereignty”—along with the power of a single state to stop a constitutional amendment dead in its tracks—in favor of “the people of the United States” forming a new government based entirely on a new formula that gives no such veto power to any single state.
 
These changes, as Bruce Ackerman, Akhil Amar, and many others have pointed out, reflect a powerful rejection of the compact theory as the basis for self-rule in favor of an account of sovereignty grounded in the “people of the several states.” The states retain form and authority, but they have been dethroned in our political theory as the genesis of sovereignty—it rests in the hands of the people themselves. At least that’s what the Constitution seems to say and the Framers’s own example demonstrates. Of course, it’s a separate question entirely how many people remember or accept this move, and for that matter, what lessons later generations might draw from this precedent.
  
But changing the rules collectively once doesn’t mean that just anyone can change the rules again—or more importantly, that one segment of the citizens can do so through unilateral action. In fact, a self-executing right of secession would have greatly alarmed most of the Framers, particularly the Federalists driving the project of renewal, given their general mission to strengthen federal power as the primary method of enhancing “a firm union.” It would also have worsened the problems of faction with which they were intensely occupied if a single state could rattle its saber and threaten to dissolve the union or depart every time it disagreed with a piece of legislation or a president’s order.
 
Now, Buckley cites Federalist No. 43 as if it unquestionably settles the matter, but of course that pamphlet did no such thing. Toward the end of that essay, Madison takes up the issue of why the “Confederation . . . can be superseded without the unanimous consent” the states. He invokes the nature of a “compact between independent sovereigns,” which, according to well-established treaty principles, allows a party to it to claim that the agreement has been “violated and void.” That’s correct given the original terms of who entered into that agreement. Behind that contract principle, of course, is the deeper right of self-governance rooted in natural law. But Madison nowhere asserts that if the Constitution were approved based on the new theory of self-governance, a single state or even a few disgruntled states, can dissolve it.
 
Indeed, Madison insists, in a letter dated January 1, 1833 to Alexander Rives, that “a rightful secession requires the consent of the others, or an abuse of the compact.” The idea that “a single State has a right to seceded, at will from the rest . . . would not, till of late, have been palatable anywhere.” Even if secession could be done, it would have be accomplished “without injustice or injury to the Community.” Think of the “consequences,” including the dismemberment of territory. An individual expatriate could not, for instance, “withdraw his portion of territory from the common domain.”
 
Agreed, and I think the counterargument is even stronger that Professor Tsai puts it.  I would sketch the argument this way:
 
(1) The Constitution declares that it and federal statutes (and treaties) are the supreme law of the land, notwithstanding any state laws or state constitutional provisions to the contrary (Art VI).  Thus, not only does it not provide any express (or, I would say, implied) power of states to secede, it directly declares that states as states do not have the power to displace the Constitution or federal law.
 
(2) As Professor Tsai says (following Ackerman, Amar, etc.), the Constitution's preamble invokes the people of the United States, not the states, as the possessors of ultimate sovereignty (a point reaffirmed in the Tenth Amendment).  The Constitution thus is not a compact of the states, and whatever could be implied about secession from a compact of states doesn't apply to the Constitution.  While I wouldn't endorse everything that Ackerman and Amar draw from this proposition, it does seem at minimum to further reject the idea of the states having a reserved right of secession. 
 
(3) I'm not aware of any commentary from the ratification debates indicating that if states tried out the Constitution for a while and didn't like it, they could withdraw.  If that had been a common understanding, it would have been a good argument for Federalists to deploy, as it would suggest that states would not be risking much in giving the Constitution a try.  But in fact, as Professor Tsai says, Federalists most likely had the opposite view given their desire for a stronger union.
 
(4) Professor Buckley rests principally on Federalist 43, but Professor Tsai counters (and I agree):
 
Buckley cites Federalist No. 43 as if it unquestionably settles the matter, but of course that pamphlet did no such thing. Toward the end of that essay, Madison takes up the issue of why the “Confederation . . . can be superseded without the unanimous consent” [of] the states. He invokes the nature of a “compact between independent sovereigns,” which, according to well-established treaty principles, allows a party to it to claim that the agreement has been “violated and void.” That’s correct given the original terms of who entered into that agreement. Behind that contract principle, of course, is the deeper right of self-governance rooted in natural law. But Madison nowhere asserts that if the Constitution were approved based on the new theory of self-governance, a single state or even a few disgruntled states, can dissolve it.
 
In any event it seems quite untrue that originalists "must" accept the constitutionality of state secession.

05/17/2020

A Response to Ryan Nees on Textualism and Title VII [Updated] [Further Updated]
James Phillips

[Ed.: James Phillips is a Nonresident fellow with the Constitutional Law Center at the Stanford Law School.]

My piece shows that this is a mistake—that the textualist arguments for the plaintiffs in the Title VII cases actually overlook a plainly linguistic, and thus textualist, consideration: the principle of compositionality.  I explain and then apply this principle to the linguistic data available in both dictionaries and the largest available database of English texts from the time of Title VII’s enactment (the Corpus of Historical American English, or “COHA”). 

Doing so shows that on the most faithful reading of the text of Title VII, its ban on sex discrimination applies only to differential treatment based on “unfair beliefs or attitudes directed at some or all men in particular, or at some or all women in particular—whether the beliefs be outright misconceptions or just unduly rough or weak generalizations; and whether the attitudes be indifference, discounting of interests, distaste, or outright antipathy” (6). (I also show that this reading fits well with the Supreme Court’s precedents on Title VII.) The plaintiffs’ reading of Title VII contradicts this reading, so it “produces a demonstrably inferior reading of the text on purely linguistic grounds, prior to any appeal to subjective intent, purpose, policy concerns, or other modes of legal argument” (3).

Rising Stanford 3L Ryan Nees has posted a thoughtful reply to my essay on the American Constitution Society’s blog. I write with a few reactions. Given the limited nature of a blog post, I won’t address every concern I have with Mr. Nees’s post, but just focus on some points related to corpus analysis and the statute’s BFOQs.

Mr. Nees alleges that I have “effectively incorporate[d] purpose into the very meaning of the words of the statute.” But nowhere does my analysis delve into congressional intent or analyze the type of evidence one would to divine such (legislative history, etc.). Instead, it merely takes the operative words at the statute and looks at how they were used by ordinary Americans and defined at the time Title VII was enacted. It’s hard to think of a more textualist way to approach interpretation. If that’s purposivism, then everything is.

As to my reliance on the uses of “discriminate against” in the database of English texts, Mr. Nees contends that my analysis goes awry because the phrase “discriminate against” appears only 125 times out of the 48 million words in the databases’ texts from the 1950s and 60s. But here Mr. Nees is focused on the wrong denominator. If we’re trying to see if “discriminate” had taken on the kind of pejorative sense described in my piece, the absolute number of times that the phrase “discriminate against” appears is irrelevant. The question is how often “discriminate” is paired with “against” as opposed to other words. And it turns out that this pairing occurs over half the time the word discriminate is used and is five times more likely the next most frequent pairing.

More to the point, my submission is not just that “discriminate against” should be analyzed under the notion of compositionality (a notion Mr. Nees seems to confuse with the related notion of an idiom), but that it’s the whole operative language of Title VII that should be examined, to the extent possible. That language is “discriminate against any individual . . . because of such individual’s  . . . sex” So Mr. Nees’s ability to find cases where “discriminate against” did not connote prejudice, when used in reference to things like commerce, has no bearing on the meaning of “discriminat[ion] against” someone because of a suspect classification or characteristic. So Mr. Nees’s focus on “discriminate against” in isolation from a protected classification falls into the same error as the petitioners—trying to slice and dice the language contrary to the principle of compositionality.

In other words, no one denies that“discriminate against” can be used in other contexts involving no prejudice. But in focusing on this point, Mr. Nees’s analysis overlooks the usefulness of a corpus: the ability to drill down on context. Title VII doesn’t prohibit discriminating against just anything. It prohibits discriminating against an individual because of that individual’s enumerated group characteristic. So that is the only context that matters. Likewise, if I’m trying to understand what it means to “read a book,” it would make little sense to look in a corpus at instances of “reading the sky” or “reading body language.” It’s just not the relevant linguistic context.

Mr. Nees also turns to a different corpus—one of Supreme Court opinions—and argues that I overlook the possibility that “the phrase’s usage in the legal context may have differed from popular usage.” But no one in the briefing or arguments has ever argued that Title VII is using a legal term of art. Besides, if we were to pursue this suggestion seriously, looking at a corpus of Supreme Court opinions alone wouldn’t do the trick. We would need to look at a corpus of legislation and other legal materials as well.

Moreover, Mr. Nees’s findings about the corpus of Supreme Court opinions don’t get him where he appears to want to go. He notes that “discriminate against” appears three times as often in the Supreme Court corpus than in COHA. The fact that something appears more often in a legal corpus than an ordinary corpus does not mean that it has a specialized legal meaning. Take the noun “court.” In COHA, the word appears 237 times per million words. In the Supreme Court corpus Mr. Nees used, “court” appears 80,447 times per million words, or 339 times more frequently than in the ordinary corpus. But no one would think this shows that “court” has a special legal meaning that diverges from the ordinary meaning.

Mr. Nees performs collocate analysis on the term “discriminate against” in the Supreme Court corpus. But that is just not the relevant corpus for understanding the ordinary meaning of the non-technical phrase as it appears in Title VII. So it tells us nothing of value. With a corpus, if you ask the wrong questions you’ll get the wrong answers. Likewise if you use the wrong corpus.

Finally, Mr. Nees notes that after forbidding “discriminat[ion] against” individuals “because of” their “sex,” Title VII makes an exception for cases where sex is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” But this exception would be redundant, Mr. Nees argues, if Title VII’s main operative language only ever covered employment actions based on prejudice, since actions based on BFOQs are not rooted in prejudice. So the main operative language in Title VII must sweep more broadly. It must include more than employment decisions rooted in a “prejudicial motive.” And this, Mr. Nees supposes, refutes my linguistic argument.

But I did not suggest that Title VII’s main operative language (“discriminate against an individual . . . because of such individual’s. . . sex”) is limited to employment policies rooted in irrational hostility (such that employment policies based on BFOQs would clearly fall outside the ban from the get-go). Just the opposite: I wrote that the main  operative language would cover employment policies based not only on “outright misconceptions” about the sexes, but also on “unduly rough or weak generalizations” based on sex (6). Given this reading, the BFOQ exception has a critical job to do: it’s there to tell us when a particular generalization about one of the sexes is compelling enough to provide a lawful basis for a given employment action.  

For example, a refusal to hire women as close-contact guards at a maximum-security prison for men obviously rests on some generalizations about women as compared to men. Those generalizations might be “unduly rough or weak” for some purposes and not for others. How to tell which they are here? By asking if this is the particular kind of work for which maleness is a BFOQ. (The Supreme Court held that it was in Dothard v. Rawlinson, 433 U.S. 321 (1977).) This example proves that the BFOQ provision is anything but redundant under my reading of the main operative language of Title VII. 

Further, it is common for laws to provide clarity as to where the line is (as Pam Karlan noted in her briefing before the Court, “Congress is free to take a ‘belt-and-suspenders’ approach”). The classic historical example of this is the Bill of Rights. The Federalists said a bill of rights was not necessary since the federal government could only exercise limited, enumerated powers anyway, and those limited powers did not allow the federal government to infringe rights. The Antifederalists, however, were presciently worried that the federal government’s powers might be construed more broadly. So they demanded explicit constitutional protection of certain rights. By Mr. Nees’s logic, the Bill of Rights is redundant. Does anyone today think so? But in the end, it is only the text that matters. We look at the words and give them their best reading. And that reading of Title VII, in the context of sex, requires a prejudice lacking in the cases before the Court, despite Mr. Nees’s best efforts to contend otherwise.

UPDATE (by Michel Ramsey):  Ryan Nees responds:

I’d just add a few sentences by way of rejoinder. The major conceptual move Phillips makes is his insistence on focusing on what he calls the “relevant linguistic context.” But doing so stacks the deck: if Phillips gets to decide which uses of the phrase are “relevant” and which are not, it will of course take on whatever meaning he wants it to, even where (as here) most of the usages cut the other way. To be sure, we shouldn’t derive ordinary meaning from frequency alone, and Phillips’s argument now implicitly acknowledges the “faulty frequency hypothesis” that corpus linguistics advocates once made. But what he’s replaced it with shows the risk in the corpus linguistics enterprise: it permits cherry-picking, just as some judges used to do with legislative history.

FURTHER UPDATE: James Phillips answers:

Two quick thoughts on Mr. Nees’s sur-reply:

1.  Relevance and cherry-picking:  Nees charges that I've "stacked the deck" by allowing myself to decide what the "relevant" phrase is.  But doing that is step one (or step zero) of any interpretive argument.  The key is to let the statute and the interpretive question determine what is "relevant."  Here I took my cue entirely from the Title VII language on which all agree that these cases turn: “discrimination against an individual … because of such individual’s … sex.”  I looked for structural parallels of that language in a corpus of enactment-era texts.  And I used a corpus of ordinary texts because the key statutory language is non-technical.  It is Nees's decision to turn to a corpus of Supreme Court opinions that is cherry-picking, because it has no discernible motivation.  While the corpus of judicial  opinions would be relevant for determining the sense of a term of art, no one (including Nees) has even argued that Title VII's key language here contains any term of art. Likewise is it cherry-picking to rely on portions of the operative language in irrelevant contexts, such as discrimination against commerce.

2.  Frequency: Mr. Nees appears to have confused the “faulty frequency hypothesis” with my acceptance of a much simpler and uncontroversial proposition. That proposition is this:  relying on the frequency of the wrong linguistic phenomena is faulty, but relying on the frequency of the right linguistic phenomena can be highly probative evidence in the quest to operationalize ordinary meaning.  As for what is the "right" linguistic phenomena, see point 1.  

05/16/2020

Mila Sohoni: The Power to Vacate a Rule
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Power to Vacate a Rule (George Washington Law Review, Vol. 88, 2020) (70 pages) on SSRN.  Here is the abstract:

A vigorous debate has emerged concerning the legality and desirability of the “universal” or “nationwide” injunction. A key part of this debate implicates the meaning of the landmark statute that governs judicial review of agency action, the Administrative Procedure Act (“APA”). Many recent suits seeking nationwide injunctions have levied challenges to federal agency action, and in particular to federal rules. If the APA authorizes a federal court deciding such a case to “set aside” a rule universally—not just to “set it aside as to the plaintiffs”—then the APA authorizes courts to provide exactly the kind of relief that opponents of universal injunctions say that courts should not be able to give: relief that reaches beyond the plaintiffs to everyone. Moreover, if the reviewing court can vacate a rule universally at the merits stage, then the APA plainly authorizes the court to issue a preliminary nationwide injunction that halts the enforcement of the rule universally pending the court’s merits decision on whether to vacate the rule.

In various lawsuits, including in a case that the Supreme Court will decide this Term, the DOJ has argued that the APA does not authorize a federal court to vacate or enjoin a rule universally. Some scholars have voiced the same claim. This Article rebuts that reading of the APA. Drawing upon the APA’s text and structure, the landscape against it was enacted, its legislative history, and evidence of how courts, Congress and commentators have understood the APA in subsequent decades, this Article concludes that the APA authorizes the “universal vacatur” of federal rules, as well as universal preliminary injunctions against their enforcement. The Article then briefly addresses broader considerations of political legitimacy and institutional competence connected with this dispute over the APA’s remedial scheme.

The original meaning of the APA is getting to be an important area of inquiry. (See also: Evan Bernick's Envisioning Administrative Procedure Act Originalism.)

Via Larry Solum at Legal Theory Blog, who says: "Highly Recommended."

05/15/2020

Silvio Roberto Vinceti: Abstract Clauses and the Descriptive Limits of Originalism
Michael Ramsey

Silvio Roberto Vinceti (Ph.D. candidate, University of Modena and Reggio Emilia) has posted Abstract Clauses and the Descriptive Limits of Originalism: Embracing Legal Realism (69 pages) on SSRN.  Here is the abstract:

There seems to be an intuitive distinction between the concrete and abstract clauses of the U.S. Constitution: If concrete clauses–such as the Article II’s requirement that the U.S. President be at least thirty-five years of age–appear fairly uncontroversial as to their meaning and reference, abstract clauses–such as the Eighth Amendment’s prohibition of “cruel and unusual punishments”–show a more vague and debatable content.

In the Article, I argue that the peculiar modality of legal change abstract clauses undergo thwarts a complete understanding of the U.S. Constitution in originalist terms. I take up Dworkin’s “moral reading” originalism and Bork’s “orthodox” one as two archetypal reconstructions of the framers’ intent in regard to abstract clauses. Despite substantial differences, both a Borkean and Dworkinian originalism share a commitment to a formal understanding of abstract clauses. For different reasons, however, they both fail in providing a sound account of abstract clauses’ change over time: If Dworkin’s account seems at variance with the rationale of a rigid constitution, a Borkean conception of abstract clauses, although interpretatively sound, appears at odds with reality.

From the failure of the two reconstructions, I deduce several conclusions. First, that the best way to make sense of the abstract clauses’ change is to give up any formalist account thereof: Abstract clauses give rise to a plain instance of informal legal change, the reason for that possibly being that formalism is in competition with other human values–namely, the desirability of the outcomes. In that abstract clauses do not comport with formalism, an originalist account thereof is not descriptively accurate.

But if abstract clauses do not abide by formal legal reasoning, the lawyer might wonder how to deal with them–especially, when faced in court. I contend that philosophy of language could hardly be of any help, despite the fact that abstract clauses recall the vagaries in reference “indexicals” bring about in analytic philosophy. Conversely, the employment of disciplines that study human behavior in different normative domains might prove decisive.

If these reflections wound up agreeable, the validity of the insights of American legal realism would be reaffirmed. On the one hand, constitutional law is, to some extent, “legally indeterminate”; on the other, empirical social sciences–not armchair philosophy–are our best ally in addressing the indeterminacy.

05/14/2020

Ryan Nees on Corpus Linguistics and Title VII
Michael Ramsey

At the ACS Expert Forum, Ryan Nees (Stanford J.D. '21):  A New Textualist Argument in the Title VII Cases, and the Risks of Corpus Linguistics.  From the introduction:

The Title VII cases pending before the Supreme Court are a notable test for conservative proponents of textualism, ...

[L]ast week James C. Phillips sought to recast the textual evidence with a subtly modified claim relying on corpus linguistics. For a textualist like Justice Gorsuch, who may be attracted to petitioners’ analysis but concerned about the outcome that would result, Phillips’s intervention could provide important new textual evidence.

Phillips’s intriguing argument is worth carefully considering, and is an instructive application of the larger project urging judges to make greater use of corpus linguistics to derive contemporaneous meaning. He argues, in summary, that the petitioners’ textualist reading depends upon “separately analyzing and then amalgamating . . . three parts” – namely, the words “discriminate,” “against,” and “sex.” Analyzed in that way, the LGBTQ petitioners may have a point, and  Justice Gorsuch seemed to acknowledge as much at oral argument. The better approach, Phillips says, would be to assess the distinct meaning of the phrase “discriminate against,” which has its own highly specific connotation entailing prejudice as a motivation, especially when the phrase is paired with a suspect class.

Corpus linguistics could be a useful resource to identify idiomatic meaning of this sort. But the surprising consequence is that, the more idiomatic the meaning uncovered, the more purposivist the reasoning starts to appear. And for reasons I explain, Phillips’s analysis is unpersuasive on its own terms, relying on a limited linguistic corpus while overlooking any possible legalistic meaning that prevailed at the time. It seeks to create a new term of art even as textualists have traditionally disfavored doing so. As the corpus-linguistic method rises in popularity as a tool of statutory interpretation, the Title VII case study demonstrates its risks.

And in conclusion:

Phillips’s argument demonstrates how frustrating it can be for some textualists to deny themselves purposivist evidence: it tempts them to find particular forms of intent in words themselves, because it generally can’t be considered at the level of an overall statutory scheme. At the very least, if textualist judges are to accept corpus linguistics evidence of meaning, as Phillips has elsewhere urged should be prominently integrated into originalist methodology and textualist statutory interpretation, they should demand clearer and better evidence than that which exists in the Title VII cases.

05/13/2020

Faithless Electors Today [Update: Prakash Agrees]
Michael Ramsey

Today is the Supreme Court argument in Chiafalo v. Washington and Colorado Department of State v. Baca, the "faithless electors" cases.  The briefs on both sides are heavily originalist/textualist.  The electors' brief focuses on the original meaning of series of words and phrases in Article II: "electors," "vote by ballot" and the states' power "to appoint" electors.  The states' brief counters (as the heading of the first section of their argument) that "The Text and Original Understanding of the Constitution Demonstrate State Authority to Remove or Penalize Electors Who Violate the Conditions of their Appointment."

There's been much speculation in commentary about the framers' intent in creating the electoral college.  I think that  speculation is fruitless and misconceived methodologically.  As David Schwartz shows in the interesting post excerpted here yesterday, the framers had a range of views on the college; many of them had unknown views, and some may not have had any fully formed view.  The only thing we know they agreed on is the structure of the college described in the Constitution's text.  Speculation beyond the text is no more than speculation.

As to the text, it seems straightforward.  States appoint electors in the manner their respective legislatures choose.  There are no limits on the criteria states can use.  So states can pick electors with a view to the electors exercising discretion in the balloting, or states can pick electors based on the electors' commitment to vote a certain way.  True, some framers did have the idea that electors would exercise deliberative choice, but nothing in the text requires that and nothing in the surrounding circumstances indicates that the framers collectively had a background understanding that this would necessarily occur.  So the modern system of appointing electors pledged to a particular candidate seems entirely within the bounds of the text, irrespective of what any framers might have thought about it.

But that's as far as the text goes.  The text does not give the states any power relating to electors other than appointment.  Nothing in the text gives states power to remove electors or to fine electors who don't vote as promised.  The states say these powers are implied by the power to appoint, but I'm doubtful.  Prior to the Seventeenth Amendment, state legislatures also had power to appoint Senators, which they often did with expectations of how the Senators would vote, but no one supposed that states could remove or fine Senators for voting contrary to their promises.

In sum, Article II gives the states considerable power over electors through the power of appointment (so much so that as a practical matter the outcome of these cases probably doesn't matter much).  But the text does not give states unlimited power over electors -- just the power to appoint.

UPDATE:  In the Wall Street Journal, my sometime-coauthor Saikrishna Prakash makes a similar argument (among others): ‘Faithless’ Electors Are Faithful to the Constitution.  From the core of the argument:

The court should nullify state laws that impinge upon the discretion of presidential electors. While the states appoint electors, they lack the power to remove them or control their votes—as was true for state-appointed U.S. senators before the 17th Amendment. Once selected, presidential electors have the constitutional right to vote as they please.

He goes on to rely a bit more than I would on the framers' supposed intent to create a deliberative system, perhaps implying that even requiring pledges from electors prior to appointment is unconstitutional under the original design.

05/12/2020

David Schwartz on Faithless Electors
Michael Ramsey

At Balkinization, David Schwartz, guest-blogging: Presidential Elections in the House? From the introduction: 

Next week, in Colorado Dept. of State v. Baca, the Court will decide whether to invalidate state laws binding presidential electors. The “faithless electors” won their case in the Tenth Circuit based on an originalist argument. Since there is no obvious partisan advantage to either side of the case—both the Democratic and Republican parties have filed briefs opposing the faithless electors claim—the Court’s conservatives might relish the opportunity to showcase their “principled” originalism and hold that presidential electors have a constitutional right to vote for whomever they choose.
 
The faithless electors’ case focuses on the meaning of Article II, section 1, clause 2: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors…” The faithless electors argue in essence that “electors” means persons with full voting discretion so that the “manner” of appointment cannot include instructions on how to vote—for example, binding the electors to vote for the state’s popular vote winner, or, as the National Popular Vote Interstate Compact movement would have it, for the national popular vote winner.
 
In this post, I’ll first discuss the pragmatic side of the faithless electors case, and then the constitutional history. The best reading of the text, structure, and history of the Presidential Electors’ clauses, I believe, is that the majority of the Framers probably didn’t care whether electors were bound by state law or not, because they assumed that contested elections would usually end up in the House of Representatives either way.
 
And from the historical discussion:
 
Given that the plain evolutionary trend in two centuries of presidential elections has been toward pledged or even bound electors, the argument that electors should vote their free and conscientious choices requires a reversion back to some “original meaning.” The originalist argument for faithless electors has both a linguistic and “structural” component.
 
The linguistic argument maintains that “elector” means someone free to vote his or her choice, as with “electors” for the House of Representatives (i.e., ordinary citizen-voters). An excellent rebuttal to that argument is found in John Vlahoplus’s essay demonstrating the indeterminacy of that language. Suffice to say here that the two conflicting interpretations are found in The Federalist essays themselves. Compare The Federalist No. 68 (Hamilton) (presidential electors would be those “most likely to possess the information and discernment requisite” to the “complicated” task of choosing the president) with The Federalist No. 39 (Madison) (asserting that the president would be elected “by the States in their political characters”).
 
As is often the case with originalist arguments in the era of “original public meaning” originalism, Framers’ intentions are smuggled into the presidential electors analysis under the rubric of “structural” arguments. [Professor Lawrence] Lessig’s lead brief for the faithless electors asserts that “The electoral college…. was crafted initially because the Framers did not want an executive dependent directly upon Congress nor upon the state governments.” (Consolidated Opening Brief for Presidential Electors, at 18.)
 
“Crafted” is hardly the right word for the patched-together compromise reached at the eleventh hour of the Philadelphia Convention—a compromise designed to accommodate three divergent views on presidential selection rather than to work well. But as long as we’re asking what “the Framers [did and] did not want,” let’s look at the odd drafting history of the Presidential Selection clauses and at the final approved language. ...

05/11/2020

Is the Oath Argument for Originalism Circular?
Chris Green

Recently Josh Hammer and John Ehrett have responded to long-time non-originalist’s Adrian Vermeule’s Beyond Originalism by invoking the Article VI oath to support “this Constitution.” I have made such an argument myself (see here and here, and here, with Evan Bernick), as have Randy Barnett and Evan Bernick (see here), Justice Scalia’s teaching partner John Baker (see here and here), and Mike Paulsen (here).

In a new essay, Vermeule claims that this move is circular:

Hammer’s main substantive argument is an appeal to the importance of oath-keeping, and to the associated clauses of the Constitution. But the argument from oath-keeping begs the question; it is necessarily parasitic on some independent account of constitutional interpretation, an account whose validity is itself the contested issue. The current debate isn’t over the question whether to respect the oath of constitutional fidelity, rightly understood; all concerned agree on that aim. Rather the whole debate is over what the Constitution is best taken to say, and how to decide what it says. What is at issue are rival conceptions of what counts as fidelity, rival interpretive approaches that all claim to embody fidelity. If the oath argument were valid at all, it would be valid for all sides, and each could accuse the others of violating fidelity by taking the wrong approach to interpretation. Their disagreement does not of course mean that there is no right answer to the question they are debating, but it does mean that an appeal to oath-keeping contributes nothing to finding that answer.

An Article-VI-based argument for originalism is not, however, about simply “the importance of oath-keeping” in general. It is about specifying the object of the Article VI oath in particular. It is about explaining what the phrase “this Constitution” picks out: what renders claims about constitutional requirements true or false. As Evan and I ask in our title, “What is the Object of the Constitutional Oath?” Vermeule gives no answer. As Ehrett asks, “what, exactly, is the referent ‘the Constitution of the United States’ to which political leaders pledge their support?” Vermeule gives no answer.

Asking interlocutors to explain and justify a constitutional truthmaker—for their account of “this Constitution” in Article VI—is not question-begging. It’s simply asking a very important question. “Rival conceptions of what counts as fidelity” are not the chief issue for constitutional interpretation, but rival conceptions of the object of constitutional fidelity in the American context: as I put it, what our “constitutional truthmaker” consists in.

There are, to be sure, some bad conceptions of fidelity as such. Pope Pius V, for instance, claimed the right in 1570 to release British subjects from their oaths to Queen Elizabeth, an edict that led to the sad history of second-class citizenship for Roman Catholics in Britain. While it is of course unlikely that Pope Francis will claim to release American office-holders from their Article VI oaths anytime soon, at least one fan of Vermeule’s responded to his argument by celebrating 1570. Another bad conception of constitutional fidelity is mental reservationism: the idea that oaths do not impose obligation objectively, but based only on individual oath-takers’ individual mental states. While Vermeule has joked about that view—he once said, “If I ever take an oath to ‘the Constitution,’ I’m going to secretly refer in my head to the unwritten ‘constitution.’ No one can stop me”—he does not seem to take the notion seriously. But it is hard to tell what obligation he thinks the Article VI oath imposes.

Do I, though, commit a petitio principii in my “this Constitution” argument for originalism? I don’t think so. Let’s set it out propositionally to show that my conclusion does not appear in the premises.

(1) Officers today take oaths to support “this Constitution,” and that oath is morally binding unless overriding considerations exist.

(2) Such overriding considerations do not exist.

(3) The objective content of an oath, as an observer would understand it, is binding, rather than an oath-taker's subjective understanding.

(4) Our current oath-taking constitutional culture uses the phrase “this Constitution” to refer to something that is the same for all oath-takers and the same as it was at the time of the Founding; people today think George Washington swore the same oath to support the same Constitution as do current office-holders, and that America has the oldest currently-operational written Constitution.

(5) A constitution with different powers to change is a different constitution.

So,

(6) Our Constitution has the same powers to change that it did at the Founding.

(7) At the Founding, the text of the Constitution imposed its requirements by expressing meaning on the basis of the legal interpretive conventions that existed at the time, applied to the original context.

So,

(8) The meaning expressed by the text of the Constitution, on the basis of the legal interpretive conventions that existed at the time, applied to the original context, binds office-holders today.

For support for (1) to (6), see here. For support for (7), see here.

Continue reading "Is the Oath Argument for Originalism Circular?
Chris Green" »

Anthony Gaughan: James Madison, Citizens United, and the Constitutional Problem of Corruption
Michael Ramsey

Anthony J. Gaughan (Drake University - Law School) has posted James Madison, Citizens United, and the Constitutional Problem of Corruption (69 American University Law Review 101 (2020)) (40 pages) on SSRN.  Here is the abstract:

One of the most controversial decisions in the modern history of the Supreme Court is Citizens United v. Federal Election Commission. In a 5-4 ruling, the Supreme Court struck down the ban on corporate independent expenditures. The majority defined corruption in narrow terms and held that quid pro quo corruption was the only constitutionally permissible basis for campaign finance regulation.

The decision set off a storm of outrage. President Obama even took the remarkable step of condemning the ruling during his State of the Union Address. Recent polls show that the public still overwhelmingly opposes the majority’s ruling in Citizens United.

On the tenth anniversary of Citizens United, this Article puts the constitutional problem of corruption in historical context by examining the political career of James Madison. The Citizens United case turned on the First Amendment’s freedom of speech clause. Madison wrote the First Amendment while he served in Congress. He also played a key role in drafting the Constitution and in authoring the Federalist Papers, which explained and defended the Constitution during the ratification debates.

Nearly two centuries after his death, Madison looms as large as ever in American constitutional law. The Supreme Court still consults his writings and career for guidance in interpreting the Constitution. Madison’s appeal even transcends traditional divides, as justices across the ideological spectrum routinely cite him.

The story of Madison’s political career thus brings a unique and important perspective to the Citizens United ruling. The underlying issues of free speech—as well as the threat of corruption posed by powerful financial interests—were well-known to Madison. One of the most important constitutional theorists in history, he was also a career politician, serving as a four-term member of Congress and later as a two-term President of the United States. In addition, he helped Thomas Jefferson found the Democratic-Republican Party (known today as the Democratic Party), which meant that Madison spent his life not only as a public intellectual but also as a practical politician engaged in party building. Madison’s political experiences thus provide a revealing glimpse into how the First Amendment’s author approached the issue of money in politics when it came to his own election campaigns.

05/10/2020

A Further Exchange between F.H. Buckley and Roger Pilon
Michael Ramsey

At Law & Liberty, Roger Pilon and F.H. Buckley continue their debate over originalism (see earlier here, here and here):

Roger Pilon:  Why I Am an Originalist—Properly Understood

F.H.Buckley: Originalism: Surrebutter

The latter concludes:

The American originalist is resolutely uninterested in other countries, however, even those that are just as free and committed to the rule of law. That’s a weakness in their case. It opens them up to the charge that they’re simply right-wingers.

While I think this is a bit unfair, it raises an important question for originalist theory: to what extent is originalism uniquely applicable to the U.S. Constitution, as opposed to other country's Constitutions?

My view is that originalism is best understood as a consequence of a commitment to the rule of law.  Without a commitment to the text and original understanding, the Constitution becomes subject to political forces (most notably, in a system of judicial review, to the policy intuitions of judges).  Originalism rejects policy-driven updating of fundamental legal rules as destructive of the rule of law (a rejection that follows from originalism's conclusion that rule of law values outweigh the gains that might accrue from judicial updating).  I think that account of originalism has general applications -- that is, it doesn't depend on anything particular to the U.S. Constitution.  So, on this view, originalists should be interested in other countries (and indeed I think a good number of them are).  Nonetheless, Professor Buckley is right that originalism in the U.S. is often justified by reference to particular aspects of the founding era in the U.S.  For these originalists I agree it would be especially useful to ask to what extent their vision of originalism applies to other constitutions.

05/09/2020

Rick Hills on Leonard & Cornell's "The Partisan Constitution"
Michael Ramsey

At Prawfsblawg, Rick Hills (NYU): Is Aaron Burr is one of our Constitution’s Most Important Founding Fathers? The Legitimacy and Ubiquity of Partisan Constitutional Interpretation (commenting on Saul Cornell and Gerry Leonard's The Partisan Republic: Democracy, Exclusion, and the Fall of the Founder's Constitution, especially its relationship to originalism).  From the introduction: 

With The Partisan Republic: Democracy, Exclusion, and the Fall of the Founder's Constitution, Saul Cornell and Gerry Leonard have produced a tour de force of constitutional history, the central gist of which is that the constitutional founders failed to achieve their vision. According to Saul and Gerry, the founders aspired to create a republican regime in which elites ruled without political parties, governing with the consent, but not under the control, of non-elite voters. By 1832, this genteel model of popular government was swept away by the rise of Andrew Jackson’s and Martin Van Buren’s rival model of partisan democracy. In the partisan republic, nonelite but propertied white men ruled the roost, excluding not only the pretensions of what Federalist framers would call the “natural aristocracy” but also women, Indians, and African-Americans. Aside from advancing an important thesis, the book is an addictively good read that encapsulates an action-packed period, from the 1780s to the Cherokee Nation's forlorn litigation of the early 1830s, in briskly elegant prose.

Although Partisan Republic is essential reading for historically minded constitutional scholars, I imagine that many legal scholars wedded to one or another form of originalism might be confused by the reference to a “Fall of the Founders’ Constitution” in the title. If one concedes that the Constitution contains gaps, then it should be no surprise that the struggle over how to fill those gaps became the occasion for fierce debates. Providing a space for such politics, our originalist might argue, is precisely the point of the original document’s gaps. It does not contradict the “Founders’ Constitution” for lots of partisan debates to occur where the Constitution’s original public meaning does not specify any rule. The elite, mostly Federalist, founders may themselves have fallen from power – but their Constitution, ambiguous as it is, still rules us all where its language is plain.

I think this sums up a likely originalist reaction to the book pretty well (although Professor Hills goes on to argue why it is mistaken, drawing on his important article on constitutional ambiguity).  The Constitution doesn't specify everything.  What it does not specify is left to the political branches.  Often the political branches can act within the letter of the Constitution to produce results not anticipated (and perhaps actively opposed) by its framers.  I think many of the developments discussed by Professor Hills in connection with the Cornell and Leonard book fall into this category.

The electoral college is an example.  At least some of the framers thought the college would be a deliberative body that selected the President, insulating the selection from the direct democratic process.  But Burr and others figured out how to work around that design to direct the electors' votes in advance (giving us an early form of the more democratic system we have now).  This innovation might be described as part of the fall of the framers' hopes for the constitutional order (and, certainly, as part of the fall of the Federalist Party).  But it shouldn't be described as part of the fall of the framers' Constitution because Burr's approach to the electoral college wasn't contrary to the Constitution's original meaning.  The Constitution's text allows a deliberative electoral college but it doesn't require one.

RELATED:  As noted earlier, Balkinization has an ongoing symposium on the book.

 

05/08/2020

Earl Maltz: Faint-Hearted Federalism
Michael Ramsey

Earl M. Maltz (Rutgers Law School) has posted Faint-Hearted Federalism: The Role of State Autonomy in Conservative Constitutional Jurisprudence (forthcoming, South Carolina Law Review) (21 pages) on SSRN.  Here is the abstract: 

The conservative members of the Supreme Court often portray themselves as the protectors of the autonomy of state governments in the federal system. Among other things, they have relied on the concept of state autonomy as a justification for limiting the ability of Congress to protect both religious liberty and voting rights. However, at the same time, Chief Justice Roberts and his compatriots have often shown little regard for state autonomy in cases where the actions of the Supreme Court itself have had the effect of significantly limiting that autonomy. Thus, in cases such as Janus v. AFSCME Council 31, McDonald v. City of Chicago and Parents Involved in Community Schools v. Seattle School District No. 1, the conservative justices have not hesitated to find that the Constitution established national rules that deprived state and local governments of the authority to adopt policies that conservatives generally find objectionable. This essay is the first to juxtapose these two aspects of conservative constitutional jurisprudence and to argue that any justice who is truly committed to preserving state autonomy should also embrace the concept of judicial restraint in cases where the Court is called upon to review the actions of state and local governments.

Though not framed this way, the paper's call amounts in large part to reading Fourteenth Amendment incorporated rights more narrowly than their counterparts in the Bill of Rights.  This was basically Justice Powell's position in Apodaca, and as Will Baude recently noted, it's possible that there is an originalist foundation for it.  But just on its face it does not seem inconsistent (or contrary to originalism) to insist on structural constitutional protections for state autonomy but also to insist on fairly strong versions of rights incorporated against the states in the Fourteenth Amendment.  The Amendment was, after all, a partial limitation on the state autonomy in the original Constitution.  Perhaps it constrained the states less, in terms of individual rights, than the Bill of Rights constrained the federal government -- but that conclusion doesn't follow simply from the idea of state autonomy.

05/07/2020

More from Josh Blackman on Originalism in the Lower Courts
Michael Ramsey

At Volokh Conspiracy, Josh Blackman flags the recent opinion by Judge James Ho (Fifth Circuit) in Williams v. Seidenbach, Inc., which had this observation:

[O]ne important purpose of en banc rehearing is to reconsider our circuit precedent—for example, "to better align our precedents with the text and original understanding of the Constitution or the plain language of United States statutes" to the maximum extent that Supreme Court precedent permits. Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring)

Judge Ho added a footnote to (San Diego-based) Judge Patrick Bumatay: 

See also Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from the denial of rehearing en banc) ("As inferior court judges, we are bound by Supreme Court precedent[s]. . . . [But] '[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'") (fourth alteration in the original) (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting)), aff'd in partrev'd in part, 561 U.S. 477 (2010)).

Professor Blackman adds: "I will try to flag lower-court decisions that employ originalism. Please send me any that I may miss."

And here is his article Originalism and Stare Decisis in the Lower Courts (13 NYU Journal of Law & Liberty 44 (2020)).

05/06/2020

Anya Bernstein: Legal Corpus Linguistics and the Half Empirical Attitude
Michael Ramsey

Anya Bernstein (University at Buffalo Law School) has posted Legal Corpus Linguistics and the Half Empirical Attitude (Cornell Law Review, Vol. 106, 2021) (51 pages) on SSRN.  Here is the abstract:

Legal writers have recently turned to corpus linguistics for help interpreting legal texts. Corpus linguistics—a methodology that analyzes large data sets of language use —promises to give empirical grounding to the claims about ordinary language that pervade legal interpretation. Yet, I argue, legal corpus linguistics departs from these empirical origins by ignoring the crucial contexts in which legal language is produced and interpreted.

First, legal corpus linguistics ignores the legal context of legal language—conditions, like judicial precedent and statutory co-text, that give legal language authority. So it provides evidence about language use that obscures and misstates the actual issues legal interpreters face. Second, legal corpus linguistics ignores the institutional context of legal language—the way it is produced by certain speakers, taken up by certain audiences, and formulated in particular genres. When legal corpus work treats language as socially undifferentiated, its empirical findings rest on a fictional basis.

The underlying problem, I show, is a mismatch of methodology and goal. Corpus linguistics in linguistics makes an empirical claim that its analysis illuminates truths about the language it studies. Legal corpus linguistics, in contrast, uses empirical methods to support a normative claim that its analysis ought to influence our interpretation of legal texts. Treating normative claims as though they were empirical findings constitutes what I call a half-empirical attitude in legal interpretation. At the same time, I suggest ways that legal corpus linguistics could be useful to the production and interpretation of legal texts, as well as to the development of legal theory—if it embraces a more fully empirical attitude.

05/05/2020

Lael Daniel Weinberger: Frankfurter, Abstention Doctrine, and the Development of Modern Federalism
Michael Ramsey

Lael Daniel Weinberger (Harvard Law School) has posted Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures (University of Chicago Law Review, forthcoming) (54 pages) on SSRN.  Here is the abstract:

In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, requiring federal courts to sometimes refrain from hearing cases that were within their jurisdiction.

This article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes.

The history—relevant again today, as the political discussion around the courts again echoes the Progressive era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s current status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would one of embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely-conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.

In my view the whole idea of abstention is dubious from an originalist perspective.  That Frankfurter -- emphatically a nonoriginalist -- basically invented it is further evidence in support of this view.  Court have a duty to say what the law is, when they have jurisdiction, because they have a duty to uphold the Constitution. (This view is associated with my long-time and often-expressed dislike of the related political question doctrine).  But its also true that modern federal courts think they have jurisdiction more often than they should.

05/04/2020

New Book: "The Partisan Constitution" by Gerald Leonard & Saul Cornell
Michael Ramsey

Recently published: The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press 2019), by Gerald Leonard (Boston University) & Saul Cornell (Fordham).  Here is the book description from Amazon:

The Partisan Republic is the first book to unite a top down and bottom up account of constitutional change in the Founding era. The book focuses on the decline of the Founding generation's elitist vision of the Constitution and the rise of a more 'democratic' vision premised on the exclusion of women and non-whites. It incorporates recent scholarship on topics ranging from judicial review to popular constitutionalism to place judicial initiatives like Marbury vs Madison in a broader, socio-legal context. The book recognizes the role of constitutional outsiders as agents in shaping the law, making figures such as the Whiskey Rebels, Judith Sargent Murray, and James Forten part of a cast of characters that has traditionally been limited to white, male elites such as James Madison, Alexander Hamilton, and John Marshall. Finally, it shows how the 'democratic' political party came to supplant the Supreme Court as the nation's pre-eminent constitutional institution.

Via Balkinization, which is hosting an online symposium on the book, featuring  Greg Ablavsky (Stanford), Mary Bilder (Boston College), Jud Campbell (Richmond), Johnathan Gienapp (Stanford), Mark Graber (Maryland), Mark Killenbeck (Arkansas), and Sandy Levinson (Texas).

05/03/2020

Eric Segall on Second Amendment Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: The Futility of Originalist Analysis in Second Amendment Cases.  From the introduction:

In his dissent to the Supreme Court’s dismissal of New York State Rifle & Pistol Association v. City of New York on grounds of mootness, Justice Alito wrote the following about the merits of the case: “neither the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.” After arguing that the plaintiffs should have won on originalist grounds, Alito then discussed the city’s justifications for its law (now repealed), finding that those purposes were constitutionally insufficient....

And from the core of the argument:

[O]riginalism is a particularly unhelpful way of analyzing Second Amendment issues (assuming for sake of argument the provision does protect an individual right to own guns). This disconnect is important given how important originalism (or at least originalist rhetoric) seems to be to Justices Gorsuch, Kavanaugh, and Thomas.

Take for example the issues raised by New York State Rifle & Pistol Association. The New York state law now in effect (the statute that mooted the case), according to the city’s lawyer at oral arguments, “allows gun owners with premises licenses to transport their guns to rifle ranges and second homes outside the city as long as the only stops they make along the way are ‘reasonably necessary.’” Justice Alito believed that this disclaimer was not enough to save the law’s constitutionality.

What is really at stake in this case is whether New York City (or the state of New York) may regulate the movement of handguns through the city’s crowded boroughs absent a certain set of conditions. There is little or nothing from the world of 1791 that can help us answer this question.

The most common form of originalism today is “public meaning originalism.” This method does not ask judges to inquire into the subjective intentions of the people living in 1791 (or 1868). Rather, judges should try to ascertain the original public meaning of the text. But even if this task could be accomplished with any certainty, the proposed answers would be unhelpful for two reasons. First, like all other constitutional rights, the right to “keep and bear arms” is not absolute and must be balanced against legitimate, strong, or compelling governmental concerns depending on the right at issue. There is nothing in the original public meaning of the Second Amendment that can help judges do that. Most Second Amendment cases today raise issues that the people living in 1791 did not anticipate in a context they could not have imagined. To say there is an objective public meaning of the text as applied to these new issues is nonsense. ...

I think the last sentence quoted above does not follow from the one before it.  Undoubtedly there are issues today that people living in 1791 did not anticipate.  But that does not mean that there is no objective public meaning of the text that can be applied to those issues.  Indeed, a central point of original public meaning (as opposed to original intent) is that it can be applied to resolve issues that its framers did not anticipate.  And the way people in the founding era understood firearms regulations can help us understand the original public meaning of the Amendment, even though assuredly that meaning will then need to be applied to issues the founding generation did not foresee.

05/02/2020

Stephanie Barclay: The Historical Origins of Judicial Religious Exemptions
Michael Ramsey

Stephanie H. Barclay (BYU Law School) has posted The Historical Origins of Judicial Religious Exemptions (Notre Dame Law Review (forthcoming 2020)) on SSRN.  Here is the abstract:

The Supreme Court has recently expressed a renewed interest in the question of when the Free Exercise Clause requires exemptions from generally applicable laws. While scholars have vigorously debated what the historical evidence has to say about this question, the conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise — a sea change in the American approach to judicial review when compared to the English common law.

This Article, however, questions that assumption and looks at this question from a broader perspective. When one views judicial decisions through the lens of equitable interpretation, one finds historical evidence of widespread judicially created exemptions that have been hiding in plain sight. Indeed, the judiciary’s ability to modify statutes to cohere with higher law principles like constitutional rights was widely accepted in the early Republic. Though the judiciary did not always use modern language of exemptions, this was functionally what judges were doing on a large scale throughout the country and across a host of personal rights. The mode of analysis courts used to create these equitable exemptions also provides an important historical antecedent for modern strict scrutiny analysis.

An understanding of wider historical judicial practices helps avoid the trend of treating free exercise judicial remedies as an island in the law, and it also provides additional support for an original understanding in favor of religious exemptions. Thus, contrary to the conventional view, this Article demonstrates that judicially created religious exemptions are well within our constitutional traditions of judicial review, and may have more historical support than the Court’s current approach.

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

05/01/2020

Josh Hammer on Judicial Supremacy
Michael Ramsey

Josh Hammer (independent) has posted Standing Athwart History: Anti-Obergefell Popular Constitutionalism and Judicial Supremacy's Long-Term Triumph (University of St. Thomas Law Journal, Vol. 16, No. 2, 2020) (32 pages) on SSRN.  Here is the abstract:

There is one debate in all of constitutional law and constitutional theory even more important than what any particular provision or clause in the Constitution means: Who is responsible for interpreting the Constitution, in the first instance. This Article looks anew at the historical interpretive debate between judicial supremacy, on the one hand, and constitutional departmentalism, on the other hand. This debate, focusing on the extent to which the judicial branch's idiosyncratic judgments in a given Article III "case" or "controversy" can more broadly bind the political branches of the federal government, is as old as the United States itself.

Specifically, this Article looks at that debate through the prism of popular constitutional resistance to the landmark same-sex marriage Supreme Court ruling of 2015, Obergefell v. Hodges. This Article traces the history of the judicial supremacy debate and analyzes the legal justifications for popular constitutionalist attempts to undermine the Obergefell decision. It also considers why the judicial supremacy side of the debate has largely prevailed, over time.

04/30/2020

F.H. Buckley on Why He Is Not an Originalist
Michael Ramsey

At Law & Liberty, F.H. Buckley: Why I Am Not an Originalist (responding to this post by Roger Pilon).  From the introduction:

The best arguments are often between people who agree on just about everything, and so it is with me and my good friend Roger Pilon. For while we’d be hard-pressed to find ourselves at odds over the problems of the day, we do disagree about the canons of constitutional interpretation. He is an originalist who argues that the Constitution’s meaning is to be found in its text, while I say that originalism is either wrong or self-defeating.

...

If Roger is right, a judge is bound to give effect to the words of a constitution, however unjust or wrong-headed they might seem. The American Constitution, a fascist constitution, it’s all the same to an originalist. Any attempt to mitigate the rigors of a racist constitution would therefore be condemned by the originalist. But I don’t think many of us would agree with this. Even a liberal constitution may stand in need of judicial tweaking, and the best example of that is the 1867 British North America (BNA) Act that united Canada.

Professor Buckley is an insightful scholar -- in particular, I highly recommend his book on executive power The Once and Future King: The Rise of Crown Government in America (Encounter Books 2014).  But I think his assessment of originalism and its alternatives is mistaken.  Here's his concluding paragraph:

Is it all politics, then? If it were, I might indeed be an originalist, in America at least. And in 2020 at least, not 1857. But the rule of law means that it can’t be all politics. Instead, we must seek some neutral ground between a false originalism that at its core is politically right-wing and the left-liberalism of recent Supreme Court jurisprudence. That entails a legal regime in which majority decisions of the Supreme Court are legitimately the law of the land, even if one thinks them ill-considered. But in that case, we might, with the benefit of experience, learn how those rules have coarsened and harmed us, and false starts enacted by a temporary Supreme Court majority might prudently be reversed without waiting for a politically impossible constitutional amendment. That’s not the judicial revolution the originalist wants, but then good lawyers instinctively mistrust revolutions.

This passage posits a "rule of law" that provides a "neutral ground."   But what is Buckley's "neutral ground" and "rule of law" if it's not fidelity to the law's text and original meaning?  The paragraph suggests "majority decisions of the Supreme Court ... even if one thinks them ill-considered."  To be sure, stare decisis is an important consideration, and most originalists would agree.  But past decisions cannot provide the broad neutral ground Buckley supposes.  First, most contested questions of modern constitutional law do not have a Supreme Court decision directly on point.  What would Buckley have us do then, if not examine the text and its original meaning?  It seems inevitable that judges would turn to policy judgments (and in any event Buckley provides no alternative).  Second, no one thinks stare decisis is an inflexible command, and indeed Buckley urges that decisions that "have coarsened and harmed us ... might prudently be reversed."  But on what "neutral ground" shall we decide which decisions "have coarsened and harmed us"?  There is none; this is necessarily a policy conclusion.

That Buckley wants judges making policy conclusions is apparent from the body of the essay.  He praises the Canadian Supreme Court's interpretation of the BNA Act because "the Court shifted power from Ottawa to the provinces; and if you’re a federalist, as Roger and I are, I should have thought you’d be pleased with this."  That is a policy assessment.  If you're not a federalist, you won't be pleased about it.  Federalism, in this sense, is a preferred policy outcome.  Originalism says that the Court's BNA Act interpretation should be evaluated on whether it was a sound assessment of the text and original meaning of the BNA Act.  Professor Buckley says that it should be evaluated on whether it advanced his particular ideological commitments.  It's fine to criticize originalism on this ground, but let's be clear that the proposed alternative is not a "neutral ground" or the "rule of law" -- it is a preferred policy outcome.

I agree that we should "seek some neutral ground between a false originalism that at its core is politically right-wing and the left-liberalism of recent Supreme Court jurisprudence."  True originalism (which at its core is sometimes politically right-wing and sometimes not) is a possible neutral ground.    Buckley, instead, wants to replace the Court's left-liberal policy-oriented jurisprudence with right-conservative policy-oriented jurisprudence.  That's a reasonable position to have, but it's not neutral ground.  And in the end, it makes constitutional law, if not "all politics," at least mostly politics.

04/29/2020

New Book: "The Living Presidency" by Saikrishna Prakash
Michael Ramsey

Recently published, by Saikrishna Prakash (Virginia):  The Living Presidency: An Originalist Argument against Its Ever-Expanding Powers (Belknap Press 2020).  Here is the book description from Amazon:

A constitutional originalist sounds the alarm over the presidency’s ever-expanding powers, ascribing them unexpectedly to the liberal embrace of a living Constitution.

Liberal scholars and politicians routinely denounce the imperial presidency―a self-aggrandizing executive that has progressively sidelined Congress. Yet the same people invariably extol the virtues of a living Constitution, whose meaning adapts with the times. Saikrishna Bangalore Prakash argues that these stances are fundamentally incompatible. A constitution prone to informal amendment systematically favors the executive and ensures that there are no enduring constraints on executive power. In this careful study, Prakash contends that an originalist interpretation of the Constitution can rein in the “living presidency” legitimated by the living Constitution.

No one who reads the Constitution would conclude that presidents may declare war, legislate by fiat, and make treaties without the Senate. Yet presidents do all these things. They get away with it, Prakash argues, because Congress, the courts, and the public routinely excuse these violations. With the passage of time, these transgressions are treated as informal constitutional amendments. The result is an executive increasingly liberated from the Constitution. The solution is originalism. Though often associated with conservative goals, originalism in Prakash’s argument should appeal to Republicans and Democrats alike, as almost all Americans decry the presidency’s stunning expansion. The Living Presidency proposes a baker’s dozen of reforms, all of which could be enacted if only Congress asserted its lawful authority.

Endorsed!  The complaint about the evolving presidency has always sat uncomfortably beside the celebration of the evolving Constitution.  It's going to be even more uncomfortable now.

04/28/2020

James Cleith Phillips: The Overlooked Textual Evidence in the Title VII Cases
Michael Ramsey

James Cleith Phillips (Stanford University - Constitutional Law Center): The Overlooked Textual Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (8 pages) on SSRN.  Here is the abstract:

This short essay focuses on a linguistic (and therefore textualist) principle overlooked in the trio of Title VII cases currently before the U.S. Supreme Court: compositionality. By taking that principle seriously--a principle the Supreme Court has recognized in some form for a century--the essay uncovers corpus linguistic and dictionary evidence contemporaneous to the enactment of Title VII that sheds light on the relevant statutory language. That light provides an answer to the interpretive question the Court is facing.

Title VII makes it unlawful “to discriminate against any individual . . . because of such individual’s . . . sex.” Many observers seem to drop the word “against” and focus just on “discriminate.” Or if they do take “against” into account, they nonetheless fail to read the whole operative statutory phrase—including “discriminate,” “against,” and the relevant trait (in this case, sex)—as an indivisible whole. The argument for the plaintiffs, in particular, would require us to give “discriminate” and “against” the meaning each of them would have if it existed apart from the rest of the phrase. This “dissection” approach is most obvious in the most precise and careful formulations of the plaintiffs’ central textualist argument, as this Essay will show.

But that approach, as I will also show, violates the linguistic principle of compositionality. So it produces a demonstrably inferior reading of the text on purely linguistic grounds, prior to any appeal to subjective intent, purpose, policy concerns, or other modes of legal argument.

That is because, as it turns out, the phrase “discriminate against . . . because of [some trait]” was a linguistic unit (a composite) by the time of Title VII’s enactment, which makes the principle of compositionality relevant. And read as a composite, the phrase had more semantic content than one could glean from separately analyzing and then amalgamating its three parts (“discriminate,” “against,” and “sex”). While a “dissection” reading might suggest that Title VII covers any adverse treatment that even adverts to sex, as plaintiffs suppose, a linguistically superior reading (taking compositionality into account) proves that the operative text refers only to adverse treatment that rests on prejudice—i.e., unfair beliefs or attitudes—directed at some or all men, or at some or all women. And this defeats the plaintiffs’ textualist argument. Whatever the legal merits of their case overall, their textualist case fails because it violates a basic linguistic principle as applied to linguistic data from the era. But as it happens, the prejudice-based conception of discrimination that is required by the text properly read, also fits well with all the Court's precedents on sex discrimination.

To establish the above points about the text, this Essay appeals only to (1) dictionaries from the time of Title VII's enactment, and (2) systematic data on linguistic usage from the same period (which this Essay draws from the Corpus of Historical American English, containing 24 million words' worth of naturally occurring text that provides a balanced snapshot of American English usage).

(Via Ed Whelan at NRO Bench Memos).

04/27/2020

Reminder: Executive Branch Review Week this Week (Especially Tomorrow)
Michael Ramsey

Following up on this post, a reminder that this week is the Federalist Society's Executive Branch Review Week, featuring teleforums and webinars on topics related to executive power all week.  The full schedule is available here.

In particular, tomorrow features a series of webinar panels: 

Executive Branch Review Webinar Panels
Tuesday, April 28

These panels will be available to watch through a webinar platform and live-streamed on YouTube, all in real time. The panels will also be recorded for later viewing on our YouTube channel. 

Continuing Legal Education (CLE) credits will be available for the webinars [but not the teleforums].

William Baude on Originalism and Incorporation
Michael Ramsey

At Summary, Judgment, William Baude: Originalism and "Dual-Track Incorporation".  From the introduction:

There’s lots to say about [the Supreme Court's] decision in Ramos v. Louisiana, which said that the Sixth Amendment requires unanimous jury verdicts, that the Fourteenth Amendment requires states to obey exactly the same Sixth Amendment standards as the federal government, and that any precedent to the contrary either didn’t exist or was overruled. But for now I have just one thought on that middle premise — that incorporated rights must mean the same thing against the states as against the federal government.

And from further along:

The kind of two-track incorporation that Justice Gorsuch rejects [in Ramos] is the “the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’” I think he rejects this notion for good reason, and it’s easy to see why an originalist would be suspicious that this was just a rear-guard action to nullify the incorporation of the bill of rights.

But the fact that this kind of dual-track incorporation is wrong does not mean that all kinds of dual-track incorporation are wrong. In particular, there are at least two possibilities that originalists ought to seriously consider that would result in incorporated rights under the Fourteenth Amendment having a different scope from the enumerated rights against the federal government....

I agree, at least to this extent: the proposition that incorporated rights under the Fourteenth Amendment mean the same thing that those rights mean in the Bill of Rights (a) isn't self-evident, and (b) hasn't been conclusively demonstrated by originalist scholars or judges.

04/26/2020

John McGinnis on the Chevron Doctrine and Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: The Chevron Doctrine’s Shrinking Domain. From the introduction:

Today, Chevron is under fire. It has not been overruled nor do I think it is likely to be. But its domain is shrinking and will continue to get smaller. If President Trump gets another term, it may well resemble the Cheshire cat—a still-powerful symbol for a body of law without much doctrinal substance. Just as Chevron was an iconic decision marking the continuing rise of the power of the administrative state, its relative decline in importance captures the three reasons that the administrative state is being cut back. Thus, this essay will use Chevron to introduce these three factors—the return of originalism, the rise of textualism, and the greater distrust of unsupervised expertise—that are transforming administrative law and, with it, the administrative state.

On Chevron and originalism:

The most important influence is the rise of originalism, because important elements of the administrative state, including Chevron, are in tension with the original Constitution’s separation of powers. For instance, given that the Constitution grants Congress legislative authority, it seems anomalous that the executive can wield these powers and make its own determination of what is legal through statutory interpretation. To be sure, the question of where the legislative power ends and the executive power begins is a difficult one, but that does not mean that a line cannot be drawn. For instance, Chief Justice John Marshall captured an important distinction in the Founding era when he suggested that Congress must legislate on important subjects when they affect private rights even if the executive could be left to fill in the details.

Chevron thus potentially ran afoul of the nondelegation doctrine by allowing the agencies to make major decisions about what the law meant, not just fill in the details of intricate statutes. But in the recent case of King v. Burwell, Chief Justice Roberts made clear in a majority opinion that the Chevron doctrine would not apply to major questions, such as the one in that case (whether Affordable Care Act tax credits should be provided to those purchasing insurance under federal as well as state exchanges). While Roberts suggested that Congress would not want Chevron to apply to such major questions, the more persuasive basis of the decision is the nondelegation doctrine. Applied to major questions, Chevron, as originally decided, sustains a huge delegation of legislative power to the agency, permitting it to interpret a central element of a statute....

And on Chevron and textualism:

Textualism is also playing a part in shrinking Chevron. The doctrine seems to assume an intentional method of interpretation of statutes. In Chevron, Justice John Paul Stevens stated that an agency is bound by “a clear intent of Congress,” but “otherwise can provide its own reasonable interpretation.” But if textualism is used as the method of statutory interpretation, the question becomes not whether Congress had any conscious intent on a particular issue, but rather whether the text speaks to the issue. That more encompassing inquiry can reduce the scope for agency power ....