Don't Fear Bivens
Michael Ramsey

Today is the Supreme Court oral argument in Hernandez v. Mesa, the cross-border shooting case.  One important background to the case is the suspicion with which originalist and originalist-leaning judges (including the late Justice Scalia) have viewed Bivens claims (Hernandez seeks to bring a Bivens claim against Mesa, a border patrol officer, for the shooting).

I think that suspicion is unjustified.  True, the Bivens case itself is poorly reasoned from an originalist perspective, and the Court's description of the Bivens process as an implied right of action under the Constitution is unfortunate.  But the basic proposition that persons harmed by federal officers acting unconstitutionally can bring claims against them was central to the framers' understanding of constitutional limits on federal power.  In the framers' world -- and indeed the world until Bivens was decided -- these claims would typically be state common law claims.  And, so long as state common law claims remained viable, Bivens was indeed an anomaly. 

But then (post-Bivens) Congress abolished state law claims against federal officers in the Westfall Act.  In my view, absent  a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims based on unconstitutional behavior.  Congress lacks power to eliminate a remedy for unconstitutional behavior, as that action is not necessary or proper in support of any constitutional power.  The Westfall Act is constitutional only because Congress likely assumed Bivens remedies would remain in place.  Thus in the post-Westfall Act world, Bivens remedies take the place of the common law remedies assumed by the framers.  Sharply curtailing or eliminating Bivens, as Justice Scalia wished, would radically alter the checks on federal officers, as compared to the original constitutional design.

This amicus brief by the Institute of Justice, supporting the petitioners in Hernandez, makes a similar argument.  From the summary:

Bivens’s pedigree dates back to the English common law, which allowed damages actions for violations of fundamental rights. William Blackstone famously proclaimed that without a method for “recovering and asserting” fundamental rights, “in vain would rights be declared, in vain directed to be observed.” 1 William Blackstone, Commentaries on the Laws of England 55-56. The Founders were so committed to the common law tradition of holding government agents personally liable that anti-federalists, like Luther Martin and George Mason, opposed ratification of the U.S. Constitution in part because they feared that the newly created federal judiciary would take away this common law remedy. Federalists like John Marshall sought to reassure the delegates that the remedy would most definitely live on. After all, our constitutional rights are meaningless if courts cannot redress their violation.

As a result of this history, individuals, for much of America’s existence, could subject federal officers to common law tort liability for violations of constitutional rights. Such cases were heard in state and federal courts (depending on the subject matter), with the common law being the source of the tort remedy in both.

In Bivens, the Court allowed a direct constitutional remedy in federal court, as a supplement to common law remedies, concerned that in the post-Erie world, “leaving the problem of official liability to the vagaries of common-law actions” would hurt federal interests, such as the need to enforce the Constitution without being bound by state precedent. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 409 (1971) (Harlan, J., concurring). Thus, in the seventeen year period between the Bivens decision and the passage of the Westfall Act, individuals could vindicate their constitutional rights either directly under the Constitution or through the system of common law remedies.

By passing the Westfall Act, Congress precluded all tort suits, including constitutional ones, against federal officers under state common law. But it preserved the right of aggrieved citizens to bring claims “for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). This language, the Court has found, is an “explicit exception for Bivens claims.” Hui v. Castaneda, 559 U.S. 799, 807 (2010). In other words, Congress has passed the torch of accountability for constitutional violations from the system of common law remedies to Bivens. By shutting the door on recovery under state common law and still authorizing claims for violations of the Constitution in federal court, Congress made Bivens into the one and only mechanism for holding federal officers personally liable for unconstitutional conduct. ...

The key to this argument, as the brief emphasizes, is to see Bivens not as an anomaly but as a continuation of the common law and constitutional tradition, dating back to the founding, of suing federal officers for unconstitutional acts.  Thus to the extent Congress acknowledged Bivens in the Westfall Act, it should be understood as acknowledging not just claims on the specific facts of Bivens, but the broader tradition.


Josh Blackman on the DACA Case [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: DOJ finally identifies the "constitutional defects" in DACA.  From the beginning:

In a 2017 letter, Attorney General Sessions concluded that DACA suffered from "constitutional defects." Over the past two years, the Department of Justice has steadfastly refused to acknowledge what these "constitutional defects were."

In DHS v. Regents of the University of California, Ilya Shapiro and I submitted an amicus brief on behalf of the Cato Institute and Professor Jeremy Rabkin. We lamented the fact that DOJ has never explained what these "constitutional defects" were, but urged the DOJ to state its position:

The better understanding is that the reference to DACA's "constitutional defects" was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy. But if there is any doubt about this important question, the government should be asked to represent its position about DACA's "constitutional defects."

DOJ finally opined on this question in its reply brief (pp. 20-21) ...

RELATED (I): Professor Blackman notes that his amicus brief is discussed in a recent Washington Post column by George Will.  An excerpt:

The Trump administration's main reason for rescinding DACA is thoroughly disreputable but entirely permissible — that DACA is bad policy. Another and sufficient reason, however, is that DACA was implemented in accordance with the noxious theory that presidents acquire new constitutional powers by engaging in practices that a lethargic Congress does not challenge. As Cato's brief says, "The executive branch does not need the judiciary's permission to cease enforcing a regulation it determines to be unconstitutional. . . . Courts should allow reversals of novel execution actions that expand presidential power."

RELATED (II): Andrew Pincus, an attorney on an amicus brief supporting the claimants, has a helpful post at Balkinization outlining the background.  But the post actually convinces me of the the opposite of what he intends.  If a President has a reasonable argument that a presidential policy is unconstitutional, it seems clear that the President should be able to discontinue that policy.  To probe whether the President really believes the policy is unconstitutional (as Pincus asks) appears beyond both the constitutional mandate and the institutional capacity of the judiciary.

The DACA case, DHS v. Regents of the University of California, will be argued on Tuesday.

UPDATE: Also at Volokh Conspiracy, Ilya Somin has a contrary view: Why DACA Is Legal.

Professor Somin may be right, but I think the correct question for the Court is not whether DACA is legal, but whether the Attorney General unreasonably concluded it was not legal.  That seems a much harder case to make.


James Rogers on Ken Kersch on Originalism and Conservatism
Michael Ramsey

At Law & Liberty, James R. Rogers (Texas A & M, Political Science): Originalism, Conservatives, and the Constitution (reviewing Conservatives and the Constitution: Imaging Constitutional Restoration in the Heyday of American Liberalism, by Ken I. Kersch [Cambridge 2019]).  From the introduction:

In Conservatives and the Constitution: Imaging Constitutional Restoration in the Heyday of American Liberalism, Ken I. Kersch provides a tour de force survey of conservative constitutional theory between World War II and 1980. The book, the first of a planned trilogy, provides as much an intellectual history of American conservatism during this period as it does a conservative constitutional theory. The scope of his discussion impresses. From traditionalists, libertarians, Straussians, religious leaders (Catholic, Evangelical, Jewish and Mormon), to Austrian economists, neoconservatives, public choice and rational choice theorists, all come within the book’s compass.

Kersch argues throughout that liberals—and the liberal professoriate, particularly those in law schools—do not recognize the heterogeneity of conservative constitutional thought prior to the Reagan Revolution of 1980. This lack of recognition results partly from the absence, if not exile, of conservative academics from the ascendant liberalism of the legal academy during the period (until the early 1970s). This lack of recognition also results from the identification today of conservative constitutionalism with “originalism.” Doing so, however, projects backwards an intellectual movement gaining ascendency largely after 1980, even though its roots were planted in the earlier period.

In a book as ambitious and wide ranging as Kersch has written, there are bound to be a few missteps. Some minor, if not almost trivial, others more a matter of perspective, and a few are more serious. ...

And from further on, this comment on orignalism:

There is, after all, a difference between constitutional theory and a theory of constitutional interpretation, even as they interrelate. To be sure, one’s constitutional theory cannot help but influence one’s constitutional interpretation in the face of textual ambiguity. Yet originalism is a theory of constitutional interpretation, and as such it is not—nor can it be—a constitutional theory in itself. Indeed, significant differences in constitutional theories divide modern originalists—despite agreement that textual interpretation should be originalist. (Consider the heated discussion among L&L contributors on the Fourteenth Amendment’s privileges and immunities clause some months back.)

Kersch at times writes as if modern originalism is at variance with conservatives during this period who advocated amending the Constitution or who criticized significant aspects of the Constitution. While originalist legal scholars undoubtedly have opinions of what provisions they think should be included or excluded in a constitution, the interpretive project of originalism is to understand the text of the Constitution as it is actually written. As an interpretive methodology, originalism is agnostic as to what should or should not be included in that text. Critics of originalism often conflate focus on understanding original text with worshipping original text. This as opposed to originalism as an interpretive methodology whether one approves of the text or not. The mistake in this gloss is more difficult to make when thinking of originalist approaches to statutory interpretation (a major focus of Justice Scalia’s book on originalism). There, originalist/textualist interpretation of the statutory text can rarely be mistaken as “worship” of the often obscure topics legislated in the interpreted statute. “Constitutions” are just special types of statutes.

Here is the description of Kersch's book from Amazon:

Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

(Thanks to Mark Pulliam for the pointer.)


George Christie: The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism
Michael Ramsey

George C. Christie (Duke University School of Law) has posted The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism (Connecticut Law Review, Vol. 51, No. 2, p. 451, 2019) (31 pages) on SSRN.  Here is the abstract:

The attraction of an originalist approach to constitutional interpretation is understandable. It is maintained that only that method can provide the judicial objectivity and certainty that constitutional adjudication requires.  They claim that the traditional common-law evolutionary approach leads Supreme Court Justices to succumb to the temptation to fill in gaps in constitutional law and thereby ignore that major expansions in constitutional meaning and should be made in the way the Founders envisioned, namely by amendment of the Constitution. However difficult or impractical that process may be, it is the only way to avoid the politicization of the Court. Whether that goal is achievable is highly unlikely, as is shown by the large number of five-to-four decisions of the Court. The original understanding is often hotly contested and, as shown in this Essay, often inconsistently applied. It is naive to expect that, once the Court claims to have discovered the original understanding, a future Court would not disagree.

Significant members of the founding generation realized that, in the process of interpreting and applying the Constitution, its meaning would evolve, even in ways that were contrary to the expectations of the Founders, and this is what has happened. In trying to halt and even overturn those developments, originalists have also failed to consider that the founding generation was concerned with more than the semantics of the Constitution as if it were a secular scripture.

As is argued in this Essay, the Founders also had understandings about what was the comparative importance of its clauses in case of conflicts. In adopting the Constitution their ultimate purpose was to create a lasting political society. It is hard to believe that they would accept economic collapse or civil unrest for what some judges believed was textual faithfulness.

As to the first point, Justice Scalia would say: originalism doesn't have to be perfect in achieving objectivity and certainty; it just has to be better than competing theories.

As to the second point -- is Professor Christie suggesting that the political branches should depart from the text as necessary (in their view) to head off "economic collapse or civil unrest"?  So the President can decline to hold an election or to leave office after four years, and rule by decree, to avert economic collapse or civil unrest, via an implied emergency power?  I'm not sure he really wants to make that claim, and I think to the contrary the framers wrote the text in the way they did exactly to prevent such claims.


New Book: "The Free Exercise of Religion in America" by Ellis West
Michael Ramsey

Recently published, by Ellis M. West (Richmond, Political Science): The Free Exercise of Religion in America: Its Original Constitutional Meaning (Palgrave Macmillan, 2019).  Here is the book description from Amazon:

This book explains the original meaning of the two religion clauses of the First Amendment: “Congress shall make no law [1] respecting an establishment of religion or [2] prohibiting the free exercise thereof.” As the book shows, both clauses were intended to protect the free exercise of religion or religious freedom.  West shows the position taken by early Americans on four issues: (1) the general meaning of the “free exercise of religion,” including whether it is different from the meaning of “no establishment of religion”; (2) whether the free exercise of religion may be intentionally and directly limited, and if so, under what circumstances; (3) whether laws regulating temporal matters that also have a religious sanction violate the free exercise of religion; and (4) whether the free exercise of religion gives persons a right to be exempt from obeying valid civil laws that unintentionally and indirectly make it difficult or impossible to practice their religion in some way. A definitive work on the subject and a major contribution to the field of constitutional law and history, this volume is key to a better understanding of the ongoing constitutional adjudication based on the religion clauses of the First Amendment.

Via this brief and generally positive book review posted on SSRN by Richard Garnett (Notre Dame), at Review of Politics 82 (2019), 1-3.  Professor Garnett concludes in part:

West’s study is, notwithstanding its above-mentioned long gestation, timely, in part because there are reasons to believe that more than a few, and perhaps a majority, of the current Supreme Court are open to reconsidering the 1990 ruling in Employment Division v. Smith, which announced a rule that is consistent with West’s conclusions: Generally speaking, although legislative exemptions from general laws for religious objectors are constitutionally permissible and, in many cases, morally warranted, the Free Exercise Clause does not require, or even authorize, judges to create them. Of course, the Smith ruling was criticized and controversial from the outset, and Congress and state legislatures alike responded to it with statutory exemption-creation regimes such as the 1993 Religious Freedom Restoration Act. Some of Smith’s leading scholarly critics insist, contra Prof. West, that the case’s rule is inconsistent with the First Amendment’s original meaning. Others emphasize the facts that, regardless of public understanding or expectations in 1791 (or, perhaps, in 1868, when the Fourteenth Amendment was ratified), the dramatic increases in both religious diversity and government regulations require a constitutional role that provides greater protection for vulnerable minorities from political majorities. And, still others warn that, for a variety of reasons – the weakening of and loss of confidence in religious institutions, the much-remarked “rise of the nones” and general secularization, the increasing salience of “culture war”-related conflicts between the religious commitments of some and others’ understandings of equality’s demands, etc. – it can no longer be taken for granted that American officials, administrators, regulators, and citizens assign foundational importance to religious freedom and its demands.


My Thoughts on Segall versus Solum
Michael Ramsey

Last week I promised some thoughts on the exchange between Eric Segall and Larry Solum.  Here they are.

To oversimplify, Professor Solum argues that sometimes originalism requires interpreters to consider changed facts (or changed understandings of facts) in applying a text's original meaning.  (His example is Bradwell v. Illinois, asking whether a law barring women from becoming lawyers violates the equal protection clause; his answer is that, because we now understand that women are equal to men in terms of practicing law, there is an equal protection violation, even if that was not understood at the time of enactment.)  Professor Segall says that this move converts originalism into living constitutionalism because it gives judges discretion to update the Constitution in accord with modern values.

I'm with Solum on this one (though I'm with Segall on some other matters).

The Bradwell example does not involve changing the meaning of the equal protection clause.  "Equal" still means what it meant at the time of enactment.  It's just that we now understand that two things are equal (in that original meaning) although previously they were thought unequal.  I once saw an exhibit at a science museum that displayed an array of objects arranged around two parallel lines, creating an optical illusion in which one line appeared much longer than the other.  If you asked me, are these two lines equal in length, I would have said no.  But when the lines were measured with a ruler, it turned out that they were the same length.  If you then asked me, are these two lines equal in length, I would have said yes they are; I was mistaken before.  This change does not depend on a change in the meaning of "equal" -- in reaching my second conclusion, I am using the original meaning of equal.  So with Bradwell.

But the Bradwell situation is unusual in constitutional law.  Most provisions don't work like the equal protection clause, which states a rule whose application is highly dependent on facts.  Consider (as I often like to) the declare war clause.  Assume the original meaning of the declare war clause is that the President must have the approval of Congress before initiating military hostilities.  Further assume that the framers thought this was a good rule because hostilities unfolded relatively slowly in the eighteenth century, so requiring Congress' approval was not a threat to national security.

Now assume in the modern world we conclude, because of the increase in the speed with which threats develop, that requiring congressional approval to initiate hostilities produces a serious national security problem.  May a modern originalist interpreter "update" the declare war clause in light of modern circumstances to allow presidential wars in response to developing threats?

My answer (and I assume Professor Solum's answer) is: absolutely not.  If the original meaning of the declare war clause is that the President must get Congress' approval, the application of that meaning in the modern world isn't affected by the changes in the technology of warfare.  The President still must get Congress' approval.  True, the changes in the technology of warfare may make the rule, as established by the original meaning, a greater threat to national security.  But that's an argument about whether the original meaning establishes a good rule, not an argument about what the rule is.  The change in factual circumstances is irrelevant to identifying the rule established by the declare war clause.

I think most constitutional provisions (especially outside the Fourteenth Amendment) are like the declare war clause, not like the equal protection clause.  And even if they aren't, the declare war clause example shows that sometimes, at least, originalism is different from living constitutionalism.


Daniel Birk: Interrogating the Historical Basis for a Unitary Executive
Michael Ramsey

Daniel D. Birk (Chicago-Kent College of Law) has posted Interrogating the Historical Basis for a Unitary Executive (48 pages) on SSRN.  Here is the abstract:

This Article demonstrates that the historical claims about the original meaning of the executive power made by proponents of the "unitary executive" theory of presidential and executive power in the United States are largely unfounded. The ability to remove executive officials was not one of the prerogative powers possessed by the King of England at the time of the framing of the U.S. Constitution. Moreover, the king neither appointed nor was able to remove all of “his” principal officers, many of whom held their offices for life or pursuant to other forms of tenure and operated largely free of the king’s direction or control. While the king possessed plenary authority to choose his high-level advisers and the officers who carried out his prerogatives over the military and foreign affairs, Parliament frequently regulated the appointment, qualifications, and tenure of other executive officials in Great Britain, including by protecting them from removal by the king or his ministers, when there was good reason to do so.

The evidence surveyed in this Article, which includes confirmation from a previously overlooked passage from one of James Madison's writings in The Federalist Papers, has important implications for debates over the unitary executive theory as well as for this term's Supreme Court case over the constitutionality of the Consumer Financial Protection Bureau. It suggests that the Constitution does not proscribe efforts by Congress to insulate regulatory and law-enforcement officials, such as the heads of independent agencies and special prosecutors, from political interference.


Josh Blackman & Seth Barrett Tillman on Congress Approving Emoluments [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman, Senator Blumenthal's Emoluments Clause brief conflicts with INS v. Chadha.  From the introduction:

The Foreign Emoluments Clause provides that "[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." In a series of briefs and articles, we have explained that the phrase "Office of Profit or Trust under [the United States]" applies to appointed federal officers, but not to elected officials. Therefore, the Foreign Emoluments Clause does not forbid the President or members of Congress from accepting foreign government gifts and emoluments. Congressional consent is not a precondition to their accepting such things. By contrast, appointed officers need congressional consent before accepting foreign government gifts and emoluments. This understanding of the operation of the clause is consistent with the original practice of the government under Washington, his administration, and his successors in the early Republic who were Framers and founders, and their administrations.

When Congress has chosen to grant its consent, it has acted by statute: an instrument passed by both houses of Congress and presented to the President. ... INS v. Chadha (1983) teaches that these resolutions, like any other statute however stylized, must comply with the requirements of bicameralism and presentment—that is, the resolutions must be approved by both houses of Congress and be presented to the President. ...

However, Senator Blumenthal and other Democratic members of Congress articulated a different theory about congressional instruments that consent to foreign state gifts and emoluments. In a recent brief filed in Blumenthal v. Trump, the plaintiffs stated that the President plays no role when Congress, under the Foreign Emoluments Clause, grants consent to a covered officer's accepting a foreign state gift or emolument.

The Framers' decision to give Congress an ongoing procedural role in vetting foreign emoluments—an exclusive authority exercised without the President—was a deliberate one. Unlike the Foreign Emoluments Clause, some constitutional prohibitions give Congress no special role to play, e.g., U.S. Const. art. II, § 1, cl. 7 (Domestic Emoluments Clause), while others require only that certain acts be authorized "by Law," e.g.id. art. I, § 9, cl. 7 (Appropriations Clause).

Plaintiffs' Opposition Brief at 9–10 (D.C. Cir. Oct. 22, 2019) (emphasis added). The plaintiffs contend that a concurrent resolution would suffice to approve a foreign state gift or emolument. This sort of instrument is merely passed by both houses of Congress and is not separately presented to the President. Plaintiffs' position is novel: such a concurrent resolution cannot have the force of law. Instead, the Constitution, under settled Supreme Court precedent, demands that Congress must use a bona fide statute, even if stylized as a so-called joint resolution.

Maybe.  I'm not sure Chadha is decisive because it (arguably) relied on the fact that the resolution changed private rights.  But Article I, Section 7 is categorical: "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; ..."  It would take some work to get around that.  On the other hand, a literal reading  of Article I, Section 7 would seem to include some other things that I think not everyone agrees must be presented to the President, including declarations of war (Art. I, Sec. 8); congressional consents to various state activities (Art. I, Sec. 10); and (especially) proposals for constitutional amendments (Art. V).

UPDATE: John Vlahoplus comments: 

One might also consider the roles of state legislatures under the federal constitution.  Those roles have included prescribing the times, places and manners of holding federal elections; directing the manner of appointing the state’s Electors; choosing the state’s U.S. Senators; ratifying proposed constitutional amendments; consenting to federal purchases of state lands and to the formation of certain states; and directly appointing the state’s Electors.  In some of these cases the legislature might function in a lawmaking capacity, submitting its decisions to the executive for approval or veto.  In others it might function as an assembly, independent of the executive.  In yet others its function might differ depending on how it acts—as an assembly if by majority vote or in a lawmaking capacity if by a plurality vote.  If it acts as an assembly, it might act by concurrence of both houses or by joint ballot.  Indeed, Article I, Section 7 might not even apply to consent under the Foreign Emoluments Clause. The Clause might allow Congress to consent by joint ballot rather than concurrence.

The Supreme Court has applied a functional test to determine whether a state legislature acts as a lawmaking body or an assembly under specific constitutional provisions.  A functional test might authorize Congress to act as an assembly under the Foreign Emoluments Clause.  The Clause provides a check.  The Constitution might allow Congress, as a steward, to waive that check—including for the President if the presidency is an office of profit or trust under the United States. 

For much of the constitutional history noted above, see James C. Kirby, Jr., here at 501-03.


William Baude & Stephen Sachs: The Misunderstood Eleventh Amendment
Michael Ramsey

William Baude (University of Chicago Law School) and Stephen E. Sachs (Duke University School of Law) have posted The Misunderstood Eleventh Amendment (52 pages) on SSRN.  Here is the abstract:

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same — whether by reading broad principles into its precise words, or by treating the written Amendment as merely an illustration of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits brought against states, in law or equity, by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It cannot be waived. It cannot be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states.

Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism, and sometimes leading the Court badly off track. A better understanding of the Amendment’s text lets us correct these errors and respect the unwritten principles that the Amendment left in place.

Just in time for this case: Allen v. Cooper  -- Supreme Court oral argument scheduled for 11/5/19; Question presented: "Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states."

(This paper will be presented at the originalism works-in-progress conference in San Diego in February 2020.)

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


Daniel Rice on Federalism and the Treaty Power
Michael Ramsey

At Just Security, Daniel Rice (Institute for Constitutional Advocacy and Protection): Female Genital Mutilation and the Treaty Power: What Congress Can Do.  From the introduction:

Since 1996, the act of female genital mutilation (FGM) has been a federal crime. Federal circuit courts have characterized FGM as “a barbaric practice unbecoming of a civilized society,” “a form of physical torture causing grave and permanent harm,” and “a horrifically brutal procedure.” According to a high-ranking official in ICE’s Homeland Security Investigations unit, “[b]rutality of this nature is inconceivable and horrifying.” And the Solicitor General of the United States recently declared FGM to be “an especially heinous practice . . . that should be universally condemned.” In keeping with this uncompromising posture, successive administrations have used their diplomatic clout to pursue the global eradication of FGM.


But in November 2018, Judge Bernard Friedman of the U.S. District Court for the Eastern District of Michigan issued a sweeping opinion holding the FGM statute unconstitutional on the grounds that neither Congress’s treaty-implementing authority nor its power to regulate interstate commerce justified § 116(a)’s enactment.

... Despite “condemn[ing] [FGM] in the strongest possible terms,” DOJ insisted that no reasonable argument could be made in the statute’s defense under either the treaty power or the Commerce Clause. DOJ then moved to withdraw its appeal ...  The Sixth Circuit granted DOJ’s motion, thereby ensuring that the district court’s extraordinary ruling would avoid appellate review.


My thesis is simple: both the district court and DOJ performed disastrously. Each actor predicated its constitutional analysis on an astonishingly shallow understanding of the nature of FGM and the legal framework for regulating it. In this article, I will explain why § 116(a) is justifiable as a means of implementing the United States’ treaty obligations. There is a clear rational relationship between the FGM statute and rights protected under the International Covenant on Civil and Political Rights (ICCPR). And even if federalism principles constrained Congress’s ability to implement treaty obligations—which, under current law, they do not—FGM is not the sort of “purely local” crime purportedly reserved for state and local regulation.

It's an insightful and informative post, but my view is different -- as explained in an article I wrote after Bond v. United States (the case involving the woman in Pennsylvania who attempted to poison a romantic rival and was prosecuted for violating the Chemical Weapons Convention implementation act): Congress’s Limited Power to Enforce Treaties.

Contrary to Justice Scalia's concurrence in the Bond case, I think Congress (as an original matter) does have power to enforce treaties from a combination of the President-and-Senate's power to make treaties and Congress' power to "make all laws which shall be necessary and proper for carrying into Execution ... all other powers vested in the Government of the United States, or in any Department or Officer thereof."  But in order to constrain the threats to federalism identified by Scalia's concurrence, I argued that the "necessary and proper" requirement should be interpreted to impose two constraints:

(a) the treaty obligation Congress seeks to enforce should be unambiguous (so that Congress cannot augment its power beyond what the treatymakers intended);  and

(b) the treaty obligation Congress seeks to be enforce should not be readily enforceable by the states (so that Congress' action is really "necessary").

Applied to the FGM statute, I wouldn't say there is no reasonable argument in favor of Congress.  But although it's a close case I would say the statute, as applied to purely local incidents, fails both prongs of the test.   First, the treaty obligation is not unambiguous.  There is no treaty prohibiting FGM by name.  As the linked post explains, the supposed obligation comes from Article 24 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”  Maybe this provision prohibits FGM (the UN Human Rights Committee says it does), but maybe it doesn't.  My view is that only obligations the Senate clearly approved in the treatymaking process should be the foundation for congressional enforcement -- else the political protections for federalism embodied in the treatymaking process can be circumvented.

The post argues that "an implementing statute need be only rationally related to the treaty it seeks to effectuate."  I think that's the wrong standard, both as an original matter and as a matter of modern law.    The implementing statute needs to be tied (we can debate how closely) to an actual obligation in the treaty (not just to an obligation that could possibly be found in the treaty).  Otherwise, Congress has far too much ability to legislate beyond what the treaty authorizes.

As to the second point, it's not clear to me why FGM cannot be prohibited at the local level.  The post argues that (a) FGM is a matter of international concern because it has generated international opposition and international support for its suppression, and (b) that it often involves travel across state or national boundaries.  As to the first point, I don't think that matters.  The question is whether states have the will and ability to act against it.  In its purely local manifestation, I would think they do.  If states have systematically failed to act, that might make federal intervention necessary.  But it's not clear that states are refusing to act.  As to the second point, Congress can use its interstate and foreign commerce power to suppress interstate and foreign travel for commercial purposes, and the treaty implementation power might allow Congress to suppress noncommercial travel across state lines.  But the fact that such travel occurs does not make it necessary for Congress to regulate purely local activity.

So on balance I think Judge Friedman and the Justice Department got it right, despite Daniel Rice's excellent argument to the contrary.    Congress' power to implement treaties is, as Justice Scalia argued in Bond, a grave threat to federalism if not adequately constrained.    Congress needs to show that it is implementing an obligation clearly contained in the treaty (not just an arguable one) and that congressional action is necessary because the states are unwilling or unable to enforce that obligation.


Ilya Somin on Police Power Takings
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Federal Court Rules there is no Taking if the Police Destroy an Innocent Person's House During a Law Enforcement Operation.  From the introduction:

Earlier this week, the US Court of Appeals for the Tenth Circuit ruled [in Lech v. Jackson] that the Takings Clause of the Fifth Amendment does not require the government to compensate an innocent man for the destruction of his house during a police operation ...

The Takings Clause of the Fifth Amendment requires the government to pay "just compensation" to property owners any time their land or other property is "taken" by the state. That includes many situations where the government destroys or damages the property in question, rather than appropriates it for its own use. For example, in 2013, the Supreme Court unanimously  held that a taking can occur as a result of the government deliberately flooding land. ...

Why then, did the court rule that no taking had occurred, thereby denying the Lech family any right to compensation? Because the destruction of the house occurred in the course of a law enforcement operation intended to promote "the safety of the public" ...

The court is right to point out that this distinction between  the "police power" and eminent domain has been adopted in many of previous takings decisions immunizing law enforcement agents from liability. The main relatively new aspect of this case is applying the distinction to the physical invasion or destruction of property, as well as to "regulatory takings" where the government merely restricts the owner's ability to use his or her land. But the rule still makes no sense, and should be done away with.

Citing this article by Benjamin Barros, Professor Somin argues that "The history and original meaning of the Takings Clause also supports the notion that exercises of the "police power" can be takings."

This seems like a question originalism ought to be able to answer.  Police (and military) damages to property were likely fairly common in the founding era (or, if you prefer, in the time leading up to the enactment of the Fourteenth Amendment).  It should be fairly easy to see whether there was a pattern of compensating -- or, more importantly, not compensating -- them.  (I haven't read the cited article closely enough to have an opinion).

For what it's worth, Chief Justice Taney in Mitchell v. Harmony (1851) strongly implied that a military taking, even if motivated by emergency, would require compensation. In a case involving military seizure of private property during the Mexican War, he wrote for the Court:

There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy, and also where a military officer charged with a particular duty may impress private property into the public service or take it for public use. Unquestionably in such cases the government is bound to make full compensation to the owner, but the officer is not a trespasser.

But we are clearly of opinion that in all of these cases the danger must be immediate and impending, or the necessity urgent for the public service such as will not admit of delay and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.

(The Court held in the particular case that no such emergency existed).


Anthony J. Bellia & Bradford Clark: The International Law Origins of American Federalism
Michael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted The International Law Origins of American Federalism (Columbia Law Review, 2020, forthcoming) (97 pages) on SSRN.  Here is the abstract:

Courts and commentators have long struggled to reconcile robust federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally emphasized the history, structure, and purpose of the Constitution over its precise text. Critics of such doctrines have charged that they lack adequate support in the Constitution and are the product of improper judicial activism. This Article reconciles federalism and textualism by looking to a surprising source—international law. The Constitution contains numerous references to “States”—a term of art drawn from the law of nations. The founding generation first used the term “States” in the Declaration of Independence to claim independence for the original thirteen colonies and declare that they possessed full sovereign rights under the law of nations. The law of nations not only defined the rights of sovereign States, but also provided rules governing how States could surrender these rights. Understanding the term “States” against this backdrop provides a firm textual basis for the Supreme Court’s most significant federalism doctrines, and suggests that courts and commentators have been asking the wrong questions in assessing these doctrines. Under the law of nations, a “State” possessed full sovereignty unless it clearly and expressly surrendered some of its sovereign rights in a binding legal instrument. Thus, to determine the sovereign rights of the “States” under the Constitution, courts should ask not whether the constitutional text affirmatively grants them certain rights, but whether the constitutional text clearly and expressly abrogates such rights. This approach grounds many of the Court’s prominent federalism doctrines in the constitutional text.

Mike Rappaport made something like this point a while back in "Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions" (93 Northwestern U. L. Rev. 819 (1999)) [not on SSRN].


Bruce Frohnen on Originalism and Natural Law
Michael Ramsey

At Law & Liberty, Bruce Frohnen (Ohio Northern): Originalism Is Beside the Point.  From the introduction: 

Originalism has gained wide acceptance, at least in the limited sense that most academics and judges feel constrained to signal respect for the original meaning and generalized intentions of the Constitution. Unfortunately, this “acceptance” has done little to slow the pace of judicial law making that undermines our constitutional order. The reason is not hard to find, though it has become so deeply ingrained in the legal profession as to generally escape examination: lawyers share the prejudice that law is the product of judicial will, such that judges have a duty to pursue (or impose) justice by making and re-making rather than finding law. 

Alternative views among lawyers are hard to find. Few judges or academics today are willing to encounter elite derision by defending traditional natural law; few even are willing to risk such derision by defending Lon Fuller’s softer version of natural law, holding that law has an internal morality such that decrees that are self-contradictory, impossible to obey, continually changing, or secretly enacted cannot fairly be deemed “law,” no matter their pedigree. But these understandings lay at the heart of our constitutional order; they were shared almost universally by the founding generation and shaped the drafting and interpretation of the Constitution, as well as its Amendments and legal decisions, for generations—indeed up until quite recently, historically speaking.


Not coincidentally, natural law remains an object of derision and/or manipulation. For some lawyers today natural law is simply a sham—nonsense used to cover policy preferences, best ignored by interpreters even though it was constantly invoked during most of our history. For others, natural law is a code of conduct dictating specific, logically derived laws and policy provisions. For still others, natural law equals natural rights, which, despite the vast wealth of evidence to the contrary, dictates radical individualism as a relentless goal of constitutional government. 

Philip Hamburger gets us much closer to the truth when he points out that, during the founding era, “natural law typically was assumed to be the reasoning on the basis of which individuals adopted constitutions and a means by which the people could measure the adequacy of their constitutions.” As used by the people in public discourse this characterization seems indisputable. But we must look further, or deeper, for the grounds of proper constitutional interpretation.

The deep structure of constitutionalism in the United States lies in the traditions of common law and chartered rights brought over from England. It also lies in what I would call the natural law mind. This natural law mind embodies an understanding of our nature and natural goals that not so long ago was almost universally accepted in the United States and remains deeply powerful outside the halls of academe and of politicized justice. 

I get nervous when originalists talk about natural law (even though the framers believed in natural law), because I suspect it means they are going somewhere other than where the text's original meaning indicates.  But I confess I do not understand this post's title, so likely I don't understand other aspects of it as well.


Ilan Wurman: In Search of Prerogative
Michel Ramsey

Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted In Search of Prerogative (70 pages) on SSRN.  Here is the abstract:

The standard formalist account of Article II’s executive vesting clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, Julian Mortenson and John Harrison independently challenge this “residual vesting” thesis by amassing evidence that “the executive power” textually referred only to the power to carry laws into execution, and not to the bundle of royal prerogatives — for example over foreign affairs and national security — enjoyed by the king in Great Britain. According to the advocates of both accounts, the scope and nature of the executive is dramatically altered depending on which account one adopts.

This Article dissents from both views. The executive power was indeed about law-execution, and was not a residual grant of power; but, I argue, both the founding generation and their key guide, Blackstone, likely shared a “thick” understanding of this “executive power.” Their writings and statements suggest that “the executive power,” even in its narrower law-execution sense, plausibly included the powers to appoint, remove, and direct executive officers, and to promulgate regulations, as necessary incidents to law-execution. Not only is this account consistent with Blackstone and the historical meaning of “the executive power,” it better fits the available data from the Constitutional Convention and early practice than either of the other two accounts. The residual vesting thesis requires us to believe that the Committee of Detail ignored the instructions of the delegates in the Constitutional Convention; to infer that the delegates themselves were unaware of the implications of what they had written; and to ignore the fact that not a single opponent of the Constitution during ratification as much as mentioned the possibility of a residual grant. On the other hand, the law-execution thesis, at least a “thin” version of it, requires us to ignore centuries of practice and precedents in foreign affairs as well as domestic matters. The “thick” view of “the executive power” advanced in this Article is the theory of best fit: it is the only one that fits the text, the Framers’ apparent intent, and the historical practice. The upshot of this approach is that the President probably has more power in the domestic sphere than under a thin law-execution account, but less in foreign affairs than under the residual account.

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

(This is the third major article this year attacking the main contention of The Executive Power in Foreign Affairs.  I feel a bit beleaguered.)


Does Impeachment Require a Crime?
Michael Ramsey

Popular commentary is suddenly awash with articles claiming that impeachment (and conviction and removal from office) do not require proof of a crime.  Examples include Ezra Klein at Vox (“High Crimes and Misdemeanors,” explained), Elizabeth Drew in USA Today (You don't have to break a law to be impeached. Trump's defenders need a better argument) and Frank Bowman in The Atlantic (The Common Misconception About ‘High Crimes and Misdemeanors’).  What's notable from an originalist perspective is how originalist these articles are.

Drew, for example, writes that "the Founders left enough guidance to make it clear that an impeachable or convictable offense need not be a crime."  Professor Bowman (Missouri), after nine paragraphs on pre-drafting English history (going back to 1376) and the drafting and ratifying debates, concludes that "one point on which the founding generation would have been clear was that 'high Crimes and Misdemeanors' was not restricted to indictable crimes."  Klein reviews the drafting debates and concludes that  "'misdemeanors' did not mean then what it means now" and that "Abuse of power may not be a crime. But it is absolutely a high crime and misdemeanor."

My point here is not whether these assertions are right or wrong (I find them persuasive, at least without contrary evidence).  The point is that they rely heavily on conclusions about founding-era meaning to displace what they concede to be a possible contemporary meaning.  And they are very sure about their conclusions (Drew says it's "clear", Bowman says it's "beyond serious dispute", Klein is "absolutely" sure of his answer).

I believe that historical meanings of constitutional phrases can often be understood today with enough confidence to resolve modern controversies.  But even I might be a little more circumspect in claiming to have identified definitive historical meaning.

Critics of originalism have gone much further, arguing first that trying to find definite meaning in an ancient document like the Constitution is a misguided historical endeavor, and second that giving binding force to that meaning is a radical and misguided view of how our law does and should operate.  On the first point, professional historians in particular have criticized the academic foundations of the originalist enterprise as ahistorical.  Shouldn't these critics now argue that claiming a definite and binding historical meaning of "high Crimes and Misdemeanors" is misguidedand unattainable?

As I've written before in connection with the emoluments litigation, I think the popular reach for originalist arguments in these circumstances refutes the most foundational critiques of originalism: it's neither radical nor unworkable to look to founding-era meaning to resolve modern disputes.  The debate over originalism is really just about whether we should do so consistently, or only when it suits our purposes.


Eric Segall on Discretionary Originalism
Michael Ramsey

Ar Dorf on Law, Eric Segall: Discretionary Originalism: A Short Response to Professor Solum.  From the introduction:

Professor Lawrence Solum kindly "recommended" a forthcoming essay of mine in the George Washington On-Line Law Review [Ed.: noted here]. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference between the so-called New Originalism and Living Constitutionalism. On his blog, however, Solum also said the following about my argument:

I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views.  The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified.  And the Constraint Principle requires constitutional actors to engage in constitutional construction on the basis of the actual adjudicative and legislative facts at the time of application.  There are important questions regarding the division of fact finding responsibility regarding legislative facts as between different officials (e.g., appellate and trial judges versus executive and legislative officials), but I believe Segall is simply wrong in his characterization of my view as allowing "discretion"--as I understand the meaning of that term. [My italics].

I greatly appreciate the engagement, but I also feel compelled to note that this disclaimer fails to wrestle with the central evidence and arguments in my essay.

I have some thoughts on this debate which I will share in a separate post.


A Response to John Vlahoplus’ “Textualism and Title VII” [Updated with a Further Exchange]
David E. Weisberg

A recent post from John Vlahoplus criticizes my earlier post (which commented on an article by Prof. Richard Primus) for arguing “from the logic of contemporary English usage rather than early 1960s usage,” and for failing to cite “dictionaries, other reference works, or other sources from the corpus of English usage around 1964.” 

I consider myself a textualist but not an originalist (for reasons set forth here), so I don’t approach Title VII with a presumption that the words and phrases in the statute had a different meaning in 1964, when it was enacted, than they have today.  Moreover, Mr. Vlahoplus’ post makes no reference whatsoever to any change in logic, usage or meaning of any word or phrase in Title VII from 1964 until today.  In fact, he himself relies on two definitions—of ‘discriminate’ and ‘because of’—from the current, up-to-the-minute online edition of the Oxford English Dictionary, and those definitions have not changed in the interval between 1964 and today.  So, there seems to be agreement that, with respect to Title VII, current meanings and 1960s-era meanings are identical.

Mr. Vlahoplus notes that Title VII includes the word “discriminate,” and he asserts that “firing someone for being LGBTQ discriminates against them,” because it is “unjust and prejudicial.”  I agree.  But one doesn’t pluck a single word out of a statute to determine the whole statute’s meaning.  Title VII does not prohibit an employer from acting in a way that “discriminates against,” or is “unjust and prejudicial” towards, actual or prospective employees.  Either formulation would, I think, be void for vagueness.  But, in any event, the statute is much more specific.  A relevant question, e.g., is whether an employer who fires a male employee because the employee has relations with other men has “discriminate[d] against” that employee “because of [his] sex.”

Mr. Vlahoplus says the answer is yes, because that answer follows from a concept with which lawyers have long been familiar: ‘but-for causation’.  But for the male employee’s sex, he would not have been fired.  That establishes, we are told, that he was fired “because of” his sex, in violation of Title VII.  (Mr. Vlahoplus makes a point of citing a statement written in 1963: “Plaintiff suffered injuries because of the negligent operation of a cab.”  But that statement has exactly the same meaning today that it had when it was written; Mr. Vlahoplus does not even hint otherwise.  I therefore cannot imagine what special significance supposedly attaches to its origin in 1963.)

Another thing lawyers have long known is that but-for causation is typically relevant in tort cases to determine whether defendant’s actions or omissions caused some physical injury to plaintiff’s person or damage to plaintiff’s property.  That is, the concept of but-for causation was developed by common-law courts to deal with complicated causal chains that produce effects in a world governed by the laws of physics and the other natural sciences. 

The phrase ‘because of’ is not limited to the description of taxi accidents.  Sometimes it is used in statements—“He was fired because of: (a) his sexual relations with other men, or (b) his sex”—that are about motives and decisions, rather than cause and effect in the physical world.  The question then arises: can but-for causation properly be extended to questions of motivation, such as those relevant to Title VII?  I offered, in my earlier note, two reasons for concluding that but-for causation cannot be so extended.  Mr. Vlahoplus does not address either reason. 

The first reason: the Primus/Vlahoplus position, if strictly adhered to, generates plain falsehoods.  If the male employee, under oath, were to insist that he was fired because of his sex, he would have perjured himself.  If he has sworn to tell the truth, the whole truth, and nothing but the truth, he may not properly answer the question, “Why were you fired?”, by repeatedly asserting, “I’m male, and I was fired because of my sex”.  The falsity of that answer would be underlined if his employer, similarly under oath, testified along these lines: “We have employed and continue to employ many men—we don’t discriminate against males—but we fired this particular man because he had sexual relations with other men.”

The second reason is that the Primus/Vlahoplus view leads to an absurd result (and I am confident the reductio ad  absurdum argument form was invented prior to 1964): an employer simultaneously violates and does not violate Title VII.  If their view of but-for causation were correct, one could say that the male employee was fired because of his partner’s sex, rather than because of his own sex.  So, according to Primus/Vlahoplus, the employee was fired because of his sex (a violation of Title VII); but it could equally well be said he was fired because of his partner’s sex (not a violation of Title VII).  Due process is not satisfied when a tribunal arbitrarily picks one of two equally apt descriptions of some event, with the result that a defendant is found to have or not have violated the law.

Although Mr. Vlahoplus does not address either of the objections to but-for causation in the Title VII context, I continue to believe they are valid.  A man fired because of relations with another man is fired because of his sexual behavior or activity, not because of his sex; that statement has the same meaning and is just as true today as in 1964.  The proper way to outlaw discrimination based on LGBTQ lifestyles is to outlaw discrimination based on LGBTQ lifestyles.  Title VII does not currently do that.        

UDPATE: John Vlahoplus replies:

In his latest post on textualism and Title VII, David E. Weisberg fails to address both Richard Primus’ discussion of causation and my hypothetical criminal law example (a law mandating wearing only clothing historically associated with one’s sex is discrimination “because of” sex, not punishment for the act of wearing the “wrong” clothing).  He also fails to notice my statements that the terms “to discriminate” and “because of” have long had the meanings I cite.  The current Oxford English Dictionary bases the definitions on usage from well before 1964.

But let us focus specifically on causation and 1964-era usage.  Professor Primus addresses causation here, implicitly referring to authorities that date to 1964 and earlier:

If you’re tempted by the thought that firing a person for having a same-sex partner doesn’t discriminate on the basis of sex because the employer would fire people of any sex who have same-sex partners, ask yourself whether a law prohibiting people of any race to marry outside their racial groups, or to ride in a railroad car designated for people of a different race, discriminates on the basis of race. (It does.)

In 1964 such discrimination was “because of” race.  See Justice Stewart’s concurring opinion in McLaughlin v. Florida (1964), which invalidated a statute punishing nonmarital interracial cohabitation:

These appellants were convicted, fined, and imprisoned under a statute which made their conduct criminal only because they were of different races. So far as this statute goes, their conduct would not have been illegal had they both been white, or both Negroes . . .  [I]t is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.

McLaughlin v. Florida, 379 U.S. 184, 198 (1964) (Stewart, J., joined by Douglas, J., concurring) (emphasis added), here.

Substitute “because they were of the same sex” for “because they were of different races,” and it is clear that the employers’ decision to fire the Title VII plaintiffs “depend[ed] upon the sex of the actor” just as the Florida statute “depend[ed] upon the race of the actor.”   

Discrimination that depends on the sex of the actor being the same as that of his partner is “because of” his sex, just as discrimination that depends on the race of the actor being different from that of her partner is “because of” her race.   A textualist could easily conclude that firing the Title VII plaintiffs for being LGBTQ discriminated against them “because of” their sex, as many understood legal causation in 1964 in discrimination law as well as more generally in tort and contract law.

FURTHER UPDATE:  Final thoughts by David Weisberg:

Mr. Vlahopus is now 0 for 2; he has had 2 chances to address my objections to the ‘but-for causation’ analysis that was central to his original post, and he has never done so.  I think this is an admission that he is unable to do so, because his latest post does not even mention but-for causation.  Instead, he focuses on Justice Stewart’s concurrence in McLaughlin vFlorida, a 1964 case in which the Court unanimously held that a Florida statute criminalizing cohabitation by heterosexual couples of different races violated the 14th Amendment’s Equal Protection Clause.  Justice Stewart’s very brief concurrence states, in relevant part:

I cannot conceive of a valid legislative purpose under our Constitution for a state law which makes the color of a person's skin the test of whether his conduct is a criminal offense. These appellants were convicted, fined, and imprisoned under a statute which made their conduct criminal only because they were of different races…[W]e deal here with a criminal law which imposes criminal punishment. And I think it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. Discrimination of that kind is invidious per se.  (379 US at 198, footnote omitted.)  

Anyone can pick words and phrases out of any opinion, but that approach doesn’t shed any substantial light on whether Title VII (not the Equal Protection Clause), which imposes civil (not criminal) penalties, prohibits a private employer (not a State) from firing an employee who engages in homosexual activity (not activity that necessarily involve persons of different races). 

Jeremy Telman: John Marshall's Constitution
Michael Ramsey

D. A. Jeremy Telman (Valparaiso University Law School) has posted John Marshall's Constitution: Methodological Pluralism and Second-Order Ipse Dixit in Constitutional Adjudication (Lewis & Clark Law Review, forthcoming) (98 pages) on SSRN. Here is the abstract:

This Article provides a comprehensive treatment of the constitutional jurisprudence of the Marshall Court (1801–1835), addressing its relationship to contemporary originalism. Until recently, there seemed to be no need for such a study. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reaction against the perceived excesses of the Warren and Burger Courts. Originalists did not claim that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have made claims that constitutional adjudication in the United States has always been originalist. This Article maintains that such claims are doubly misleading. First, the Marshall Court invoked the Framers’ intentions but never undertook any investigation into those intentions. Second, this rhetorical intentionalism by no means predominated as the Marshall Court’s governing interpretive approach. Rather, that approach was pluralist. Historical reasoning, common law precedent, and what I call second-order ipse dixit pronouncements featured prominently in the constitutional adjudication of the Marshall Court.

The constitutional text rarely provided clear constraints on the Marshall Court’s discretion because, to borrow language from New Originalists, their cases arose in the “zone of construction” where original meaning “runs out.” Justices chose among plausible arguments about the Constitution’s meaning. At key points, the Justices simply declared what the law was, not without justification, but also not based on evidence of the Framers’ intent or the original meaning of the constitutional text.

Professor Telman presented this paper at the annual originalism works-in-progress conference in San Diego in February 2019.  Mike Rappaport commented here: Chief Justice Marshall’s Textualist Originalism.


Justice Thomas on Preemption by Agency Policy
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, earlier this week the Supreme Court denied cert in Lipschultz v. Charter Advanced Services, which presented the question whether the Federal Communications Commission's "policy of nonregulation" of Voice over Internet services preempted state regulation.  Justice Thomas, joined by Justice Gorsuch, objected that the policy was not a law, and thus couldn't be preemptive in any event (some citations omitted): 

I agree with the Court’s determination that this case does not satisfy our criteria for certiorari. I write to explain why, in an appropriate case, we should consider whether a federal agency’s policy can pre-empt state law.  The Supremacy Clause of the Constitution provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.

The Clause contains a non obstante provision, a common device used by 18th-century legislatures to signal the implied repeal of conflicting statutes. See PLIVA, Inc. v. Mensing, 564 U. S. 604, 621 (2011); see also Nelson, Preemption, 86 Va. L. Rev. 225, 237–242, 245–246 (2000). At the time of the founding, this Clause would have been understood to pre-empt state law only if the law logically contradicted the “Constitution,” the “Laws of the United States,” or “Treaties.” See id., at 260.

It is doubtful whether a federal policy—let alone a policy of nonregulation—is “Law” for purposes of the Supremacy
Clause. Under our precedent, such a policy likely is not final agency action because it does not mark “the consummation of the agency’s decisionmaking process” or determine Charter’s “rights or obligations.” Even if it were final agency action, the Supremacy Clause “requires that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures.” Wyeth v. Levine, 555 U. S. 555, 586 (2009) (THOMAS, J., concurring in judgment); ...

Giving pre-emptive effect to a federal agency policy of nonregulation thus expands the power of both the Executive and the Judiciary. It authorizes the Executive to make “Law” by declining to act, and it authorizes the courts to conduct “a freewheeling judicial inquiry” into the facts of federal nonregulation, rather than the constitutionally proper “inquiry into whether the ordinary meanings of state and federal law conflict,” Wyeth, supra, at 588 (THOMAS, J., concurring in judgment).

Agreed.  Mere federal policy should not preempt state law.  The issue is similar to American Insurance Association v. Garamendi (2003), in which the Court unfortunately held that an executive branch policy relating to foreign affairs could preempt state law (5-4, with Justices Thomas and Scalia on the right side).  I criticized that decision in this article: American Insurance Association v. Garamendi and Executive Preemption in Foreign Affairs (written with Brannon Denning of Cumberland Law School).  Fortunately the Court substantially retreated from Garamendi in Medellin v. Texas (2007) (see my further discussion here), so it shouldn't be an obstacle to getting this issue right.


Calvin TerBeek on Originalism and the Administrative State
Michael Ramsey

At House Divided, Calvin TerBeek: The GOP’s Flip Side of the Same Coin: Party Politics, Constitutional Politics, and the Administrative State.  From the introduction:

Easily missed in the tumult last week was the Supreme Court’s decision to review the constitutionality of the Consumer Financial Protection Bureau’s structure. The product of Obama era legislation and a constant source of partisan strife in its short existence, the Court is going to decide whether the CFPB head’s protection from at-will removal by the president violates the Constitution’s separation of powers—the “structural Constitution” as conservatives like to call it. The Court further told the parties to brief whether the entire agency must go if the agency head’s protection from presidential removal is held unconstitutional. Not incidentally, a group of conservative originalist law professors, the Cato Institute, and a handful of conservative public interest litigation groups filed briefs this past summer urging the Court to take the case.

News reportsliberal, and conservative analyses have focused on the legal questions and on whether Justice Scalia’s 1988 dissent in Morrison v. Olson will be “vindicated” (on which more below). But making sense of the Court’s decision to hear Seila Law v. CFPB profits from understanding the judicial and party politics that structure this choice. First, Chief Justice Roberts’ playbook in high salience areas such as this is now well established. Holding at bay the most enthusiastic conservative justices—Thomas, Alito, Scalia (†), and now Gorsuch—Roberts invites new cases where he patiently builds the requisite precedents to accomplish conservative and GOP legal policy goals methodically. Voting rights and campaign finance are pertinent examples of this strategy. Seila Law, then, should be understood as the opening salvo in what will be a line of cases where the Court will pare back aspects of the administrative state conservatives dislike. Indeed, Seila Law is part and parcel of the justices’ forays last term into agency deference and the non-delegation doctrine. As former White House counsel Don McGahn said in 2017, “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.”


Textualism and Title VII
John Vlahoplus

Although I am not a textualist or an originalist, I find this blog's responses to Richard Primus to be off the mark.  Michael Ramsey's response here relies heavily on the fact "that Congress did not think its text had banned sexual orientation discrimination (nor, so far as I know, did anyone else at the time)."  That sounds in expected applications originalism, not textualism.  David E. Weisberg's response here argues from the logic of contemporary English usage rather than early 1960s usage.  Neither response cites dictionaries, other reference works, or other sources from the corpus of English usage around 1964. 

If textualism is to be a meaningfully independent originalist theory then it should rely on the meanings, whether thick or thin, of the words in the text at the time of enactment.  It should also have the theoretical power to produce interpretations that differ from original expected applications originalism.  For example, consider a hypothetical based on an earlier discussion here on this blog.  Congress enacts a statute providing:  "No one may travel beyond the outermost planet in the solar system."  At the time of enactment, everyone believes that Pluto is the outermost planet in the solar system.  Congress treats Pluto as a planet in subsequent legislation, such as its finding in 2002 here that "[c]ommercial reusable in-space transportation systems can . . . support potential National Aeronautics and Space Administration missions to Mars, Pluto, and other planets."

Later we learn that Neptune is the outermost planet in the solar system.  Perhaps the definition of a planet has always required a minimum size, and new exploration shows that Pluto lacks that size.  Does the statute ban travel beyond Neptune because it is the outermost planet in the solar system?  Or does it ban travel beyond Pluto because at the time of enactment many members of Congress thought that they were forbidding travel beyond Pluto?   The statute's text does not forbid traveling "beyond Pluto."  It forbids traveling "beyond the outermost planet in the solar system."  And the outermost planet is Neptune, regardless of what members of Congress thought that they were doing by enacting the statute.  A textualist might find that the statute forbids traveling beyond Neptune.

How might a textualist interpret Title VII using period sources and focusing on the meanings of the words in the statute's text?  "Discriminate" has long meant "[t]o treat a person or group in an unjust or prejudicial manner" (Oxford English Dictionary Online definition 4).  This definition appears to be consistent with Title VII.  The statute permits employers to rely on legitimate, professionally developed and honestly administered ability tests.  Making employment decisions after receiving the results of such tests is not unjust and does not pre-judge candidates.  Firing someone for being LGBTQ is both unjust and prejudicial -- as Professor Ramsey notes, "sexual orientation discrimination has a long and sad history."  Therefore firing someone for being LGBTQ discriminates against them.

"Because" when "followed by 'of' and a substantive" has long meant "by reason of, on account of" (Oxford English Dictionary Online definition 2.a).  For the ordinary lawyer, this is a simple description of causation.  A 1963 source here, for example, includes the usage "Plaintiff suffered injuries because of the negligent operation of a cab."  A well-known test of causation is but-for causation.  But for the Title VII plaintiffs' sex (their being male), would they have been fired?  No.  Therefore they were fired "because of" their sex.

This textual analysis shows that the employers discriminated against the Title VII plaintiffs because of their sex.

Another example supports this textual analysis.  Consider a criminal law providing "Everyone must wear clothing historically associated with his or her sex."  The law requires a female to wear only certain clothing "because of" her sex -- it explicitly refers to "her sex."  Consequently, if she wears historically male clothing she will be sanctioned also "because of" her sex.  But for being female, she would not be in violation of the law. 

One might argue that she is sanctioned because she did not wear the right clothing.  But that is fatuous.  What clothing is "right" is explicitly defined by "her sex."  It is also no objection that the same rule applies to males and sanctions a male if he wears clothing historically associated with females.  The law also requires him to wear certain clothing "because of" his sex; if he wears historically female clothing he will be sanctioned also "because of" his sex.  The rule treats each in an unjust and/or prejudicial manner because of (i.e., in a way that would not apply but for) his or her sex.

The amicus brief that David Upham links here at least cites a dictionary definition of "to discriminate" and argues against the Primus thesis on that basis.  That definition is "to make an adverse distinction" (brief page 22).  The brief argues that the employer can only discriminate by making an adverse sex distinction, not by accepting a distinction that society has already made (brief pages 22-23).   That definition is inconsistent with the text of Title VII, however.  For example, the statute uses the phrase "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual" because of race, sex etc. (emphasis added).  In Title VII, to "discriminate" against someone means to take an adverse action with respect to them such as to fail to hire them, consistent with the definition "[t]o treat a person or group in an unjust or prejudicial manner."  It does not mean to make an adverse distinction previously unknown to society.

There are deeper questions, such as whether textualism can actually be distinguished from intentionalism and expected applications at all; whether words derive meaning from an essence or merely by convention; whether definition consists of designation (such as designating nine things including Pluto to be planets) or of genus and difference (such as specifying that only a body that orbits a star and has a particular size is a planet); and even whether every definition is dangerous in legal interpretation, as Lord Ellesmere asserts in Calvin's Case.  If it is possible to set all of those aside and accept textualism (which is questionable), there is a strong textualist argument that the hypothetical statute bans travel beyond Neptune and that Title VII forbids discrimination against LGBTQ persons.

The President and State Prosecutions
Michael Ramsey

A recent post linked to an article by Burlette Carter on the issue of federal prosecutions of sitting Presidents.  For me this, is a non-issue because (as an original matter) I accept the idea of a unitary executive.    Anyone with federal prosecutorial power must, in this view, serve at the pleasure and direction of the President.  The President is not going to prosecute himself.  So there's no need for the Constitution to speak further to the matter.  (Further thoughts on federal prosecution of Presidents from me and others are here).

A more difficult originalist question is whether a sitting President can be prosecuted under state law.  And that issue was argued yesterday to the Second Circuit.  From NBC News (via How Appealing):  Trump's lawyers argue he can't be charged while in office — even if he shoots someone.  The background:

A panel of three federal appeals court judges appeared to be unreceptive Wednesday to President Donald Trump's claim that local prosecutors cannot get his financial records as long as he's in office — and heard an extreme hypothetical example making that case.

The long-standing view of the Justice Department is that a president cannot be indicted while in office. William Consovoy, Trump's lawyer, told the 2nd Circuit Court of Appeals that the immunity extends to the entire criminal justice process, including grand jury subpoenas for documents.

Manhattan's district attorney obtained a grand jury subpoena in August for three years' worth of financial records from the Trump Organization and eight year's worth of Trump-related business records — including Trump's personal tax records — from the accounting firm Mazars USA. Prosecutors are investigating whether Trump or his company broke any state laws when they reimbursed his former lawyer, Michael Cohen, for making hush money payments.

And the hypothetical:

Carey Dunne, New York District Attorney Cy Vance Jr.'s general counsel, said the president's position is too absolute.

There could be examples in which a state should be able to conduct a criminal investigation of a sitting president, "if, for example, he did pull out a handgun and shoot someone on Fifth Avenue."

Asked about that, [the President's attorney, William] Consovoy said a president could be charged with such a crime once he was out of office or if he was impeached and removed from office. "This is not a permanent immunity," he said.

"I'm talking about while in office. Nothing could be done? That's your position?" Judge Denny Chin asked.

"That is correct," Consovoy said.

Maybe.  But I am doubtful.  As Michael Stokes Paulsen recounts in this 2018 post, Aaron Burr was indicted while a sitting Vice President for the murder of Alexander Hamilton:

Burr was subject to criminal prosecution in both New Jersey and New York, for killing Hamilton. As soon as it became clear that there was a genuine risk that he might be indicted, possibly in both states, Burr fled New York, making his way across the Hudson to New Jersey by boat under cover of night, then continuing on to Philadelphia to wait at the home of a friend for things to cool down. They didn’t – at least not for quite some time. A New York “coroner’s jury” determined Hamilton’s death to be a homicide, the result of Burr’s bullet, and arrest warrants were issued for Burr, and for his second in the duel and Hamilton’s second as accessories. A New York grand jury dropped the murder charge in mid-August and replaced it with the lesser charge of sending a challenge to a duel, a state criminal misdemeanor. New Jersey did not prohibit dueling, but that apparently did not preclude an indictment for murder and Burr was in fact indicted for murder by a New Jersey grand jury in October.

Neither prosecution went to trial (because Burr remained outside the jurisdictions), but there do not seem to have been substantial objections on grounds of constitutional immunity.  Professor Paulsen concludes:

Can a state indict a federal officer for having committed a state-law criminal offense? (In theory, yes.) Does it matter in this regard whether the alleged offense involves official-capacity conduct? (Yes; a state cannot impair the lawful actions of federal agents or instrumentalities.) Must an officeholder be impeached before he can be indicted or tried for criminal-law offenses? (No, but any criminal-law punishment that effects a practical removal from office – like incarceration and certainly execution – would be a different matter.)

Of course, the Burr precedent does not prove that Constitution allows state prosecutions of Vice Presidents, and of course the President is in a different position from the Vice President.  But it does not seem clear from the text and original meaning either that the Vice President has blanket constitutional immunity from state prosecutions or that the President must be treated differently.


A Response to Calvin TerBeek, Originalist Scholarship and Conservative Politics
Lee Strang

[Ed.:  For this guest post we welcome Lee J. Strang, the John W. Stoepler Professor of Law & Values at the University of Toledo College of Law.  For more on Professor Strang's book, see his conversation with Richard Reinsch at Law & Liberty.]

I was delighted when The New Rambler solicited a copy of Originalism’s Promise: A Natural Law Account of the American Constitution to review, because I appreciate the constructive criticism a book review can provide.  A good book review has at least two fundamental components—a description of the book being reviewed, and an evaluation of the book’s arguments—both of which would help me re-evaluate and potentially revise my arguments.  Unfortunately, Professor TerBeek’s review possesses neither component. 

Professor TerBeek does not describe or engage with the most important contribution of Originalism’s Promise: its law-as-coordination account of originalism.  Originalists have provided a variety of normative justifications for originalism over the past twenty-five years, and Originalism’s Promise is the first to offer a natural law justification.  It should go without saying that there are likely a variety of reasonable constructive criticisms a review could present of my law-as-coordination account—a reviewer could, for example, argue that law-as-coordination fails as an account of law, or a reviewer might argue that it fails as applied to fundamental legal documents like the Constitution, or a reviewer could take a variety of other tacks.  After reading Professor TerBeek’s review, one would not only not know about my law-as-coordination account; one also wouldn’t have the benefit of Professor TerBeek’s evaluation of it. 

Indeed, it’s not clear that Professor TerBeek understood my natural law account.  He stated that the “account of natural law appears to have been woven into the last fifth of the manuscript.”  This is an odd claim for at least two reasons.  First, the law-as-coordination account of originalism, Chapter 4, covered nearly 100 pages in a 300 page book.  Second, the natural law account is part-and-parcel of many facets of the conception of originalism presented in Originalism’s Promise.  For example, I drew on the natural law tradition to argue in Section 2.6 that originalism needed to incorporate judicial virtues to enable it to secure the common good. 

Professor TerBeek also fails to describe or engage with my in-depth description of how originalism should operate in practice.  Chapter 2 provided a complex, detailed, and intricate description of originalism.  It argued for the Constitutional Communication Model of original meaning originalism, the Deference Conception of constitutional construction, a robust originalist theory of precedent, and use of the judicial virtues.  One would not know of these four important scholarly moves from Professor TerBeek’s review, the reasons that support them, or Professor TerBeek’s evaluation of them. 

Instead of describing and engaging my key arguments, Professor TerBeek mischaracterizes Originalism’s Promise and (a pastiche of) its arguments as conservative-libertarian subterfuges.  His resulting review fails to accurately describe Originalism’s Promise and fails, on its own terms, to account for the phenomenon it purports to describe. 

Professor TerBeek claims that my “book is better understood as speaking to the academy’s network of conservative and libertarian constitutional thinkers.”  That is wrong for a variety of reasons.  First, as stated on page 1, my goal writing Originalism’s Promise was to persuade Americans generally, federal and state officers, and academics of all stripes, that originalism is the best way to interpret our Constitution.  Second, I presented the arguments in Originalism’s Promise in a variety of fora, including, for instance, the American Constitution Society’s Constitutional Law Scholars Forum, precisely because I wished to present my arguments to a variety of perspectives.  Third, Professor TerBeek’s corollary claim that “[o]ne goal of the book is to reassert the control Georgetown’s Center for the Constitution once had over the fractious intra-originalist debate in the legal academy” is absurd.  The Center never had such control; the Center does not have such control as a goal; and Originalism’s Promise is not part of such an effort—and Professor TerBeek offers no evidence to support this claim.  He cites page 42 of Originalism’s Promise, but on that page I summarized the subsection where I had described the robust pluralism within originalism and how Originalism’s Promise contributes to it!  Fourth, Professor TerBeek likewise provides no reason to believe that Originalism’s Promise “is aimed at beginning . . . a boarder originalist conversation with . . . Straussians or Straussian-adjacent[s].”  Whoever is in that group, it is not the large body of legal scholars who debate constitutional interpretation, federal and state officers, and Americans generally—Originalism’s Promise’s audience.    

Professor TerBeek repeatedly mischaracterizes Originalism’s Promise as part of and aimed at a group he labels “conservative and libertarian” or just “conservative.”  “Strang’s book is the product of—and is also primarily aimed at—the conservative knowledge structure.”  Professor TerBeek’s characterizations of originalism as synonymous with (and supportive of) “the conservative knowledge structure” that is “institutionalized by the conservative legal movement and the Republican Party” does not fit originalists’ robust diversity of intellectual and other commitments.  Originalists, like other academics and Americans generally, bring with them a variety of philosophical and substantive policy commitments.  I know first-hand from conversations, debates, and scholarship, that leading originalists disagree on many and many important issues including the best jurisprudential theory, major substantive legal issues, and many facets of originalism itself.  As I stated on page 41: “Originalists disagree on a lot.”  To tag this large and diverse group of scholars with the blunt political labels of “conservative” and “libertarian,” is inaccurate. 

Indeed, Professor TerBeek’s own “evidence” cuts against him.  He claims, for instance, that I was a visiting scholar at the “conservative” Georgetown Center for the Constitution.  The Center’s director, residential scholars, visiting scholars, and other affiliated personnel do not share a political or ideological viewpoint; indeed, they disagree on most important ethical, political, and jurisprudential issues—what they do share is a commitment to exploring originalism.   

Professor TerBeek makes a variety of misleading claims regarding my arguments that spring from his preconception about Originalism’s Promise, originalism, and/or me.  For example, citing to page 95 of Originalism’s Promise, he claims that “Strang calls for conservative and libertarian legal academics to produce more [scholarship] . . . for the conservative justices to cite.”  In reality, in Section 2.4 I described how my originalist theory of precedent could practically function, one component of which would be originalist scholars creating originalist scholarship: “Part of the ‘intellectual division of labor’ in originalism is that judges have access to originalist scholarship.”  Professor TerBeek’s “interpretation” of my argument is entirely dependent on his undefended equation of originalism with conservativism and libertarianism.  Similarly, citing page 128, Professor TerBeek claims that I argued that “‘absent following the original meaning’ the justices are simply imposing their (liberal) political will on the American people.”  In reality, I argued that average Americans believed that, if the Supreme Court failed to follow the original meaning, it was “merely imposing its own policy preferences on society.”  I made no claim about liberal or conservative; that claim arose from Professor TerBeek’s own preconception. 

Most of Professor TerBeek’s assertions that Originalism’s Promise is ideologically tinged are unconventional, to put it charitably.  For instance, citing pages 20-21 and 103, he criticizes my claim that many New Deal cases are nonoriginalist.  On those pages, I detailed Home Building & Loan Ass’n v. Blaisdell, and Wickard v. Filburn, both widely regarded by scholars of all stripes as nonoriginalist.  Similarly, I claimed on page 1 that the Constitution directly and indirectly decides many important issues.  This claim is utterly conventional.  But, Professor TerBeek tries to re-characterize it as some sort of “ideological” claim because I cited to the text of the Constitution, a Roberts Court case, and a Rehnquist Court case.  On pages 17-23, I briefly recounted how originalism was eclipsed during the Progressive and New Deal eras, a claim with widespread support and one that fits, for instance, Bruce Ackerman’s second We the People volume.  But, as distorted by Professor TerBeek, I created “villains” out of Progressives and “repeat[ed] the narrative of displacement.”    

Perhaps most aggressively, Professor TerBeek accuses me of “ignor[ing] scholarship” on the history of the use of originalism.  He evidently refers to pages 12-23 where I briefly recounted originalism’s history.  I expressly stated that my summary of the history “is not a detailed review of the evidence” supporting my narrative.  Instead, I provided “a summary of the evidence” “supporting [my] claim.”  A fulsome review of the extensive historical record and secondary literature would have commanded the entire book.

Professor TerBeek’s failure to address Originalism’s Promise’s key substantive claims regarding originalism enable him to rhetorically dismiss it though mischaracterization.  A fair review of, for instance, my complex description of originalism—its description of original meaning originalism, its modest conception of constitutional construction, its originalist theory of precedent, and its role for judicial virtues—would have made it difficult to mischaracterize it as conservative or libertarian. 

Professor TerBeek’s review also fails on its own account.  He claims that originalism is a “politically powerful idea.”  He appears to believe it is powerful because it has been harnessed to political and policy ends.  But, this claim fails to account for the phenomenon.  Originalists come from a variety of intellectual, political, and socio-economic backgrounds.  They are members of different political parties, or none at all.  They aim for different policy ends.  What they all share in common is their belief that originalism is supported by sound reasons.  Professor Balkin’s summary of his own reasons for supporting originalism applies to most or all originalists: “I argued that fidelity to the Constitution requires fidelity to the original meaning.” 

Look at how originalists act.  They present at conferences; they host conferences; they comment on others’ scholarship; they debate in person and via scholarly dialogue; they create institutions to foster this debate; they host blogs on which they debate and invite critics to debate.  Professor TerBeek’s reductionist account of originalism has no place for this activity.  Is all this really about political power?  Or, are all of these scholars really in the grip of a false consciousness?  Instead, what better accounts for originalism’s success—what can account for how originalists act and argue—is that many people believe originalism is supported by sound reasons.  In Originalism’s Promise, I contributed to that debate by offering what I argued are sound reasons for originalism. 

Professor TerBeek’s thesis is the attitudinal model of judging applied to scholarship.  The attitudinal model purports to show that judges’ political preferences play a role in judicial decision-making.  Carried too far, that model reduces all judging to politics, which fails to fit the phenomenon.  Similarly here, Professor TerBeek sees politics everywhere, and that blinds him to the earnest and good faith pursuit by originalist scholars of sound reasons for how to approach constitutional interpretation. 

There are many other assertions and claims Professor TerBeek makes to which I could respond, but that would belabor the point.  Professor TerBeek’s review fails to describe Originalism’s Promise or engage with its major, innovative arguments regarding originalism.  Instead, his review mischaracterizes my arguments through the lens of political categories.  In doing so, it fails to evaluate the reasons Originalism’s Promise offered for originalism. 

Stephen Sachs on Justice Story and Originalism
Michael Ramsey

At Volokh Conspiracy, Stephen Sachs: Justice Story on Originalism and Judicial Independence.  Here is the introduction:

A few days ago, looking for something else, I happened across this section of Justice Story's Commentaries on the Constitution. Story defends the independence of the judiciary based on something that sounds surprisingly like originalism. Some particularly interesting passages highlighted:

A number of paragraphs are quoted, followed by an assessment that begins:

I don't know enough about Story to know if this is an anachronistic reading. But the views expressed here certainly sound originalish to me. He says our Constitution isn't "an instrument of flexible and changeable interpretation," but "a settled form of government with fixed limitations"—one that sets out rules for its own alteration, and that makes no legal provision for changes outside these rules. That seems quite compatible with a view that our law is the Founders' law, as lawfully changed.

This seems like the key quote from Story (although there are others as well):

The constitution is the will, the deliberate will, of the people. They have declared under what circumstances, and in what manner it shall be amended, and altered; and until a change is effected in the manner prescribed, it is declared, that it, shall be the supreme law of the land, to which all persons, rulers, as well as citizens, must bow in obedience. When it is constitutionally altered, then and not until then, are the judges at liberty to disregard its original injunctions.


David Upham on the Original Legal Meaning of "discriminate...because of...sex"
Michael Ramsey

David Upham (Univ. of Dallas, Politics) sends this note:

I see there has been further discussion on the blog of textualism and the Court's Title VII cases.  Perhaps of interest: I filed an amicus brief on behalf of the American Public Philosophy Institute, in which we contended that sex discrimination already had an established legal meaning by 1964, for the norm had been incorporated into American and international law in various ways, including state constitutional provisions governing schools--and that for generations, the norm had never required the kind of sex-blindness advocated by the Plaintiffs in the Title VII cases.
I further discussed the brief and the issue on this podcast with Karen Loewy of Lambda Legal and Jeffrey Rosen: Can Employees be Fired for Being LGTBQ? - National Constitution Center


Mark Greenberg: Beyond Textualism
Michael Ramsey

Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted Beyond Textualism (20 pages) on SSRN.  Here is the abstract: 

This paper was the basis for my Fordham University Natural Law Colloquium lecture in September 2019.

More than 20 years ago, Justice Scalia wrote of “the great degree of confusion that prevails” in the field of statutory interpretation. Today, Scalia’s textualism is ascendant. Over the past three decades, textualism has expanded its influence both in both the courts and in the scholarly literature. (I’m using the term textualism to encompass textualism in both statutory interpretation and constitutional interpretation. The latter is also called public meaning originalism.)

In the first part of my talk, I’ll show that despite the confidence with which it is propounded, textualism is deeply confused.

In the second part of my talk, I suggest a new way of thinking about legal interpretation from the ground up. Behind the familiar question of what method of interpretation is the right one, lies a more fundamental question: what does legal interpretation, by its nature, seek? I will argue that widely shared premises dictate a straightforward answer – roughly speaking, legal interpretation seeks the contribution that statutory and constitutional provisions make to the content of the law.

Once we have clarified this basic point, the field of legal interpretation looks very different. To illustrate the way in which the field is reconfigured, I will focus on the question of whether the kind of arguments from democracy, fairness, and the like that theorists offer are even the right kind of arguments to defend methods of interpretation.

I will briefly canvas a few of the most influential theories of how the content of the law is determined and show that they do not support the kinds of arguments that textualists, intentionalists, and other theorists typically make.

It turns out that the moral impact theory of law makes sense of the kinds of arguments from democracy that theorists of legal interpretation make. So there is a sense in which theorists of legal interpretation implicitly presuppose something like the moral impact theory.

Finally, I will draw some conclusions about the implications of the moral impact theory for legal interpretation. For example, once legal interpretation is reconfigured in the way that I have suggested, how would one go about defending something in the neighborhood of textualism?


It’s Not Bad Textualism, It’s Much Worse: It’s Bad English
David E. Weisberg

This note concerns the Sexual-Orientation-Gender-Identity (SOGI) Title VII cases recently argued before the Supreme Court, and specifically Prof. Richard Primus’ article in Politico: "The Supreme Court Case Testing the Limits of Gorsuch’s Textualism," which has also been commented on by Prof. Ramsey here.

Title VII prohibits employment discrimination “because of [an] individual’s … sex”.  Prof. Primus asserts: “The logic is pretty simple. If a male employee is fired because he has sexual relationships with men, but female employees in the same workplace can have sexual relationships with men without getting fired, then the male employee was fired ‘because of [his] sex,’ inasmuch as he would not have been fired had his sex been different.  The same is true of a woman assigned female at birth who is fired because she lives as a man.”  He goes on to say that the text of Title VII, “read literally, covers LGBTQ scenarios.”

Prof. Primus’ “pretty simple” logic is grievously flawed.  His fundamental mistake is to conflate (a) the truthful, correct answer to a question, and (b) statements that can serve to clarify that answer.  He believes that any statement that clarifies an answer is itself “literally” an answer.  Not so.

A man is asked: “Why didn’t you get the job?”  He answers: “I’m a man, and they rejected me because of my sex.”  Any competent English speaker would understand that answer to mean that the employer doesn’t hire men (or doesn’t hire men for the job the applicant sought).  If the applicant was rejected for homosexual behavior, then his answer was false.  If he were under oath and his answer related to some material factual issue, he would have perjured himself.

Suppose the applicant answers: “I was rejected because I’ve engaged in homosexual activity.”  His interlocutor might ask: “What is homosexual activity?”  An explanation of what constitutes homosexual activity would certainly refer to the sex of the partners, but that does not imply that a reference to the applicant’s sex is a correct answer to the question: “Why didn’t you get the job?”  The applicant is a man; he couldn’t engage in homosexual behavior unless he had sexual relations with another man.  Nevertheless, if he was rejected because of homosexual activity, he cannot correctly or truthfully say he was rejected because of his sex.

The same is true with regard to Prof. Primus’ second example.  A female applicant says, “I’m a woman, and they rejected me because of my sex.”  Any competent English speaker would understand this to mean that the employer refuses to hire women (or refuses to hire women for the job the applicant sought).  Therefore, if the applicant was rejected because she lives as a man although her birth certificate assigns her as female, then the answer she gave was not “literally” true or true in any other sense; it was false. 

The female applicant was rejected because she lives as a man.  If someone asks, “What does it mean for a woman to live as a man?”, the answer certainly would refer to the woman’s sex.  But that does not mean that a simple reference to her sex is a correct, truthful answer to the question: “Why didn’t you get the job?”

The illogic of Prof. Primus’ position actually generates a reductio ad absurdum.  If it were correct to say the male employee was fired “because of his sex,” then it would be equally correct to say he was fired “because of his partner’s sex.”  That is, if his partner’s sex had been female rather than male, the employee would not have been fired.  No one embraces the self-contradictory position that, if an employee is fired because of his partner’s sex, that means the employee was fired because of his own sex.  Therefore, in firing the male employee, the employer simultaneously violates Title VII (inasmuch as the employee was fired “because of his sex”) and does not violate Title VII (inasmuch as the employee was fired “because of his partner’s sex”). 

Similarly, if a woman is fired because she lives as a man, it would be just as correct to say that she was fired “because she lives as a man” as it would be to say that she was fired “because she is a woman”.  But Title VII doesn’t prohibit firing an employee who has a particular hair style, or wears certain clothes, or insists on being referred to with a particular prefix.  So, in firing the female employee, the employer simultaneously violates Title VII (inasmuch as she was fired “because of her sex”) and does not violate Title VII (inasmuch as she was fired “because she lives as a man”).  These results—where an employer simultaneously violates and does not violate Title VII—are absurd.   

If an employee is fired because of homosexual conduct, then he or she was fired because of his or her behavior, not because of his or her sex.  If an employee is fired because he or she lives as another sex, then he or she was fired because of his or her behavior, not because of his or her sex.  It should not come as news to anyone that that’s how the word ‘because’ works.

Burlette Carter: Can a Sitting President Be Federally Prosecuted? The Founders' Answer
Michael Ramsey

W. Burlette Carter (George Washington University Law School) has posted Can a Sitting President Be Federally Prosecuted? The Founders' Answer (62 Howard Law Journal 331 (2019)) (69 pages) on SSRN.  Here is the abstract:

Can a sitting U.S. President be federally indicted or prosecuted? Exploring the history of impeachment and prosecution in (1) England and Great Britain, (2) colonial America, and (3) the states immediately after independence--and comparing these to the Founders' Constitutional discussions--this article considers how the Founders would have answered that question, were it posed to them today. Deviating from most analyses of the problem, it argues that the Founders would have viewed the question as jurisdictional, involving a conflict between Courts of Law on the one hand, and the Congress -- operating as a High Grand Jury (the House) and a High Court of Impeachment (the Senate) -- on the other. They would have said that Congress, when operating in its impeachment role, has sole jurisdiction over removing a U.S. President for misbehavior. At the same time, they would have said that they gave to Courts of Law, concurrent power to hear cases involving crimes and misdemeanors, so long as the cases do not involve a removal. And so they would have answered our question with a question: Does the threatened action against the President risk removing the President, either directly or constructively? They would have believed that any criminal judicial order affirmatively or negatively enjoining powers specifically delegated to the President under the Constitution would shift those powers to others and, therefore, would be an impermissible removal attempt. Congress could insert itself into such proceedings to protect the Presidency (and, to remove or protect a President), but even if it does not, no federal court has jurisdiction to enforce such a removal order and, therefore a federal prosecutor also has no power.

Consistent with British impeachment history, the Founders would have viewed the proper issuance of Articles of Impeachment as a jurisdictional act that signaled Congress' intent to actively intervene. The adoption of such Articles would automatically stay any contrary proceeding in or related to Courts of Law, including a federal investigation and the operation of a federal grand jury. Moreover, the Founders would have said that a President has the power to fire a prosecutor if the President appointed the prosecutor. And while a President can be impeached for obstructive behavior, the Founders would have said that a President cannot, after an impeachment, be prosecuted for statutory obstruction of justice, if that prosecution is based on the exercise of powers delegated to the President under the Constitution.

The Founders would have recognized that, before the formal issuance of Articles of Impeachment, Courts of Law have the power to stay their own proceedings against a President for good cause, just as English/British common law courts with concurrent jurisdiction always could. And they would have have accepted that Courts of Law can, in the first instance, decide evidentiary issues such as executive privilege. Again, despite Parliamentary power over impeachment, common law courts had long done so in England and Great Britain, so long as they otherwise had jurisdiction.

This jurisdiction-focused answer from the Founders, on whether a President can be federally prosecuted, balances the interest in law enforcement in a given case with the larger interest of the nation in protecting the people's investment in the Presidency. It allows prosecutors to investigate the behavior of a sitting President--up to a point. On the other hand, it not only authorizes but requires that prosecutors, sworn to uphold the Constitution, exercise prosecutorial discretion in determining whether or not to mount an investigation of a sitting President and how far to take it through the Courts of Law. And it requires that Courts of Law accept the limits of their own jurisdiction when proposed injunctions or orders would threaten a removal.

The article sets forth the broad outlines of presidential removal doctrine and its jurisdictional ties. The focus is on the powers of federal prosecutors and federal courts in criminal proceedings vis a vis the President. It does not deal with the definition of high crimes and misdemeanors or other impeachment-related questions. While some of the arguments presented here might possibly apply to other types of proceedings against a President, including state prosecutions, this article focuses on federal prosecution.


Rafi Reznik: The Rise of American Conservatism in Israel
Michael Ramsey

Rafi Reznik (SJD candidate, Georgetown University Law Center) has posted The Rise of American Conservatism in Israel (8 Penn State Journal of Law and International Affairs (2020)) (forthcoming) (63 pages) on SSRN.  Here is the abstract:

In the United States, the link between interpretive methodology and political ideology has generated a massive yet largely idiosyncratic body of scholarship. This Article offers a comparative case study, which converses with the American example – Israel. A twofold argument is offered to facilitate this conversation. First, a current shift in the ideological climate of the Supreme Court of Israel is identified, manifested in the rise of a new interpretive method. Never before has a comprehensive alternative been offered to the interpretive theory prevailing in Israel, Purposive Interpretation, which is conceptually and historically tied to American liberal theories. The Article unpacks the challenges posed by the new theory, termed Purposive Originalism, in methodology as well as underlying understanding of democratic principles. While elevating the role of legislative history, an interpretive device associated with liberal judges in the U.S., Purposive Originalism nonetheless deeply resonates American conservatism, espousing variations on originalism, bright-line rules and deference. Second, it is contended that this development should be understood as part of a broader ideological reorientation of the political right-wing in Israel, toward American conservatism. Increasingly drawing on the philosophies, policies and strategies of its American counterpart, the Israeli Right has adopted the compound of social traditionalism, neo-liberal economic policy and hawkish national security stance, as well as discontent with the administrative state, synthesized under the headline of conservatism. An interpretive methodology that strives for the same values enshrined in this political project fulfills a vital role in its success. Such a convergence of judicial and political reinterpretations of conservatism marks the current historical moment in Israel a recreation of the dynamics that emerged in 1980s U.S., with an all-encompassing conservative backlash against legal liberalism. The Israeli case thus reveals how American conservatism can be, and is indeed, incorporated into different cultural and constitutional settings.



Bad Textualism (Again) [Updated]
Michael Ramsey

At Balkinization, Richard Primus argues that, under a textualist interpretation, the President could be impeached for matters in addition to high crimes and misdemeanors: It Doesn’t Say “Only”: A Textual Point About Impeachment.  He argues:

Article II, Section 4 of the Constitution reads as follows: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  As a matter of practice, people have taken that language to state the exclusively valid grounds for removal.  On that understanding, someone who has committed neither treason, nor bribery, nor a high crime or misdemeanor is not subject to impeachment.  In other words, everyone speaks as if Article II, Section 4 said that the officeholders specified shall be removed from office only on impeachment for and conviction of those offenses. 

But the word “only” does not appear in the text.  Read strictly, Article II, Section 4 does not purport to define the exclusive grounds for impeachment and removal.  If its language is given its most natural meaning, Section 4 specifies scenarios in which removal shall follow from impeachment and conviction, but it does not say that there are no other grounds for impeachment and removal than the ones specified.  The text might be saying “In cases of treason, bribery, or high crimes and misdemeanors, impeachment and removal are warranted,” while saying nothing about whether Congress also has the discretion to impeach and remove in other circumstances.  In other words, the function of the Clause might be to rule certain grounds for impeachment and removal in, not to rule everything else out.   

In a prior post I raised some doubt about Professor Primus' supposedly textualist interpretation of Title VII.  Here I'll go further and say this argument is simply bad textualism.

The question is whether the high crimes and misdemeanors clause (Art. II, Sec. 4) implies that it is exclusive.  The answer is: of course it does.  Otherwise, there would be no point to it.  He says that its purpose might be to clarify that high crimes and misdemeanors are a ground for impeachment, not that they are the only ground.  But if one reads the impeachment clause of Article I, Section 2 to license impeachment without limitation (as he must, else there is no source of an impeachment power), then there is no point in saying that some types of impeachment are authorized.  The high crimes and misdemeanors clause only makes sense as a limitation (or, one might say, a limited authorization).

There's a handy canon of construction that helps out here -- expresio unius est exclusio alterius (the negative implication canon).  Where some grounds for impeachment are mentioned, others are excluded by implication.  (E.g., "Dogs on leashes are permitted" means dogs not on leashes are not permitted; "You kids can have dessert after you finish your dinner" means kids cannot have dessert before dinner.)

Professor Primus anticipates this objection and responds:

But compare the last section of Article II, which discusses impeachment, with the last section of Article III, which discusses treason.  The language of Article I, Section 3 [ed.: a typo; he means Article III, Sec. 3] begins as follows:  “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”  (I’ve italicized the word “only.”)  Here, the Constitution’s text specifies that it is providing the sole grounds for treason convictions.  When it wants to, the Constitution is perfectly capable of saying “only.”

I'm thoroughly unpersuaded.  The use of "only" one place in the Constitution overturns (indeed, apparently reverses) the expresio unius canon for the entire document?  So the President can appoint Justices without the consent of the Senate?  (Art. II, Sec. 2 says he can appoint them with the advice and consent of the Senate, but it doesn't say "only").  Federal courts have jurisdiction over all manner of cases, not just those specified in Article III, Section 2?  (Art. III, Sec. 2 says "[t]he judicial Power shall extend to ..." but it doesn't say "only").  The President can rule by decree?  (Art. I, Sec. 1 says all legislative power is vested in Congress, but it doesn't say it is vested "only" in Congress).  To the contrary, the entire Constitution is premised on expresio unius (so that it doesn't have to repeat "only" about a hundred times).

The use of "only" in the treason clause is entirely understandable from context.  Treason had been defined much more broadly in English law, including imaging ("encompassing") the death of the king.  The Constitution's framers wanted to be especially clear that they were rejecting that broad version of treason (luckily for some people today!).  So the "only" in the treason clause is belt-and-suspenders, not leaving it (as elsewhere) to negative implication.  It's not a rule of construction for other clauses.

But even without the context, it's clear from other parts of the document that the drafters repeatedly used negative implications, notwithstanding the "only" in the treason clause.  Thus it seems overwhelmingly likely that the high crimes and misdemeanors clause should be read with a negative implication, especially given the implausibility of reading it the other way.

I'd bet there's not a single self-identified textualist judge or scholar in the country that would read the high crimes and misdemeanors clause as Professor Primus suggests -- which itself suggests that he isn't doing it right.

UPDATE:  Scalia and Garner have a good discussion of exclusio unis in Reading Law, pp. 107-111.  Among other things, they caution against going too far with it: "'No dogs allowed' cannot be thought to mean that no other creatures are excluded -- as if pet monkeys, potbellied pigs and baby elephants might be welcome."  They also give an example that seems quite a bit like the impeachment example:

Consider United States v. Giordano, decided by the Supreme Court of the United States in 1974.  A statute established procedures for obtaining court orders authorizing the interception of wire and oral communications.  It said that the "Attorney General ... or any Assistant Attorney General ... specifically designated by the Attorney General" could authorize application for such orders.  In Giordano's case, it was the Attorney General's executive assistant who applied for the court-authorized wiretap. Hence Giordano argued that the conversation to be used as evidence had been "unlawfully intercepted" and should be suppressed.  A unanimous Court agreed with him: The statute named two types of high-ranking officials -- and all other were excluded.


Cert Granted in CFPB Removal Case
Michael Ramsey

The Supreme Court has granted cert in Seila Law LLC v. Consumer Financial Protection BureauThe issue is: 

Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers.

The Court also asked the parties to brief whether the removal provision can be severed from the rest of the statute creating the CFPB.

As noted, I joined an amicus brief on behalf of "Separation of Powers Scholars" -- but really, on behalf of originalist separation of powers scholars -- written by Ilan Wurman of Arizona State law school, encouraging the Court to grant cert (along with Steven Calabresi, Michael McConnell, Saikrishna Prakash, Jeremy Rabkin and Michael Rappaport).  Here is the introduction:

The for-cause removal provision respecting the director of the CFPB creates an unprecedented concentration of unsupervised executive power, threatens the separation of powers and democratic accountability, and is unconstitutional. The Constitution vests the executive power in the President of the United States. U.S. Const. art. II, § 1 (“The executive Power shall be vested in a President of the United States of America.”). Whatever else this power includes, at a minimum it includes the power to appoint, control, and remove principal executive officers. To be sure, the Constitution assigns some of this executive power away from the President: Article II, Section 2 gives the Senate a share in the appointment power. But other than the Constitution’s specific assignments away from the President, the executive power of the laws rests with the President. The Take Care Clause supports this structural inference, implying that the President has that species of power—the ability to direct and remove officers—to ensure the faithful execution of the laws. Id. § 3 (“he shall take Care that the Laws be faithfully executed”).

Two important sources confirm that the power to remove executive officers was part of the “executive power.” William Blackstone, whose Commentaries on the Laws of England guided the Framers’ drafting of the Constitution, included within his conception of “the executive power of the laws” the power to conduct prosecutions, to issue proclamations binding on subjects (and, therefore, subordinate officers) as to how the laws are to be executed, and to appoint assistants—strongly suggesting the power to direct and remove subordinate executive officers engaged in the kind of enforcement function at issue in this case. Further, the First Congress concluded that, although not expressly mentioned in the Constitution, this removal power was constitutionally vested in the President because it was part of the executive power—an inference supported by the Take Care Clause. 

But as also noted, cert seemed inevitable once the Fifth Circuit found a single-director for-cause agency unconstitutional in a separate case.  Also the CFPB filed a brief finding itself unconstitutional (so the argument for constitutionality will be presented by an appointed counsel).

John McGinnis on the Contracts Clause
Michael Ramsey

At Law & Liberty, John O. McGinnis: Reviving the Contract Clause: An Acid Test for Originalism.  From the introduction:

Whether the Contract Clause will be restored as a protection for private property rights provides an important benchmark for the success of originalism. The Clause was the most litigated provision of the Federal Constitution in the 19th century, but today it has become a shadow of its former self because the Court has abandoned its original meaning. It is difficult to overrule some Supreme Court decisions, even when egregiously wrong, because people have come to rely on them or because essential institutions have grown up around them. But the Contract Clause by its term applies only to new laws that undermine established obligations and does not implicate substantial reliance or other institutional interests. No sound theory of stare decisis should protect the decisions that have distorted its meaning.

And on a pending case: 

Only the Supreme Court can overrule its prior Contracts Clause jurisprudence. But lower courts should read non-originalist precedents where they are ambiguous to preserve as much of the original meaning as possible. That was the approach of Judge Steve Colloton joined by Judge David Stras in the recent case of Association of Equipment Manufactures v. Burgum. North Dakota had prohibited manufacturers of farm equipment from requiring delay to maintain exclusive facilities, “unreasonably” refusing to approve the relocation of dealerships, or imposing “unreasonable” performance standards on dealers. The provisions were to apply retrospectively, substituting for contractual terms agreed upon by farm equipment manufacturers and their dealers.

The majority opinion held that that the North Dakota statute worked an impairment, suggesting that even if North Dakota has previously regulated some aspects of the contractual relationships, the statute imposed additional or expanded regulations. Most importantly, it rejected the argument that these provisions were in the public interest over a dissent that suggested that state action should be presumed in the public interest, and that while the law helped farm equipment dealers at the expense of manufacturers, it would also redound to the benefit of farming communities.


It is also clear that the majority recognizes the original meaning of the Contract Clause, because it spends substantial space discussing it before turning to Supreme Court precedent. As in other cases by lower court originalist judges, the original meaning is not forgotten but is used to favor the more originalist readings of Supreme Court precedents when, as it often the case, the differences among them and indeed their ambiguity considered even individually would otherwise leave discretion with lower court justices.

In conclusion:

The [Borgum] case would be a good vehicle for the Court to reexamine its Contract Clause jurisprudence. ... [It] presents an undoubted impairment that would permit the Court to restore the Clause to its important place in the Constitutional firmament as an expression of the American commitment to private ordering and the rule of law.



Textualism and Sexual Orientation Discrimination
Michael Ramsey

Academic commentators having been arguing that a commitment to textualism should impel Justice Gorsuch to support the plaintiffs in the Title VII sexual orientation discrimination cases.  Richard Primus (Michigan) makes the argument in Politico: The Supreme Court Case Testing the Limits of Gorsuch’s Textualism (with the subhead "If the justice rules against LGBTQ protections, he’ll be admitting that, deep down, he knows his judicial philosophy is deeply flawed."). From the introduction:

[N]obody thinks that Congress in 1964 intended to ban workplace discrimination against LGBTQ persons when it prohibited discrimination “because of … sex.” But the words of the law turn out to do so, regardless of what Congress had in mind. The question before the Supreme Court, therefore, is what prevails when the text of a statute does something that the legislature that passed the statute did not have in mind—and would not have endorsed.

The justice to whom that question is posed most sharply, and who may well cast the deciding vote in these cases, is Justice Neil Gorsuch. Gorsuch may find himself pulled in different directions by two of his strong jurisprudential commitments. On one hand, he generally thinks that courts should not be engines of social change, including by expanding the reach of antidiscrimination laws. Those sorts of changes, he believes, should come from legislatures. But on the other hand, Gorsuch is a proud and articulate textualist. In his oft-repeated view, a court applying a law passed by a legislature should be governed by what the words of the statute actually say, regardless of whether the court thinks the words of the statute embody good public policy. Nor should courts let the meaning of statutory text be overcome by considerations about the general purposes of the law or what members of the legislature said or thought during the lawmaking process. What matters is the text of the statute. And the text that Congress adopted, read literally, covers LGBTQ scenarios.

I think this misunderstands textualism, at least the Scalia-Gorsuch version.  The textualist question is not the meaning of the text in the abstract without reference to context (what Scalia dismissively called "wooden literalism") but rather the meaning of the text within the context in which it was adopted.  The question is what the words meant at the time, not what they mean today.

In considering this question, it is surely relevant to consider what people at the time of enactment thought the words meant.  It's not conclusive, but it's strongly indicative.  Indeed, textualist originalists do this routinely when thinking about the meaning of constitutional phrases, and older statutes should be treated similarly.

Thus it is relevant, not that the enacting Congress did not intend to ban sexual orientation discrimination, but that Congress did not think its text had banned sexual orientation discrimination (nor, so far as I know, did anyone else at the time).

Indeed, the idea that a prohibition on discrimination on the basis of sex is "literally" a ban on sexual orientation discrimination seems a very recent discovery (even though sexual orientation discrimination has a long and sad history).  As Charles Lane observes in this account of the case, A more appropriate target for the LGBTQ discrimination case: Mitch McConnell, "Congress for decades after 1964 acted as though it had not banned job discrimination against LGBTQ people. Starting in 1974, lawmakers repeatedly introduced bills to add sexual orientation to Title VII, including in almost every session after 1994. ...  If Title VII’s reference to “sex” already incorporated sexual orientation and gender identity, then all of this was just wasted effort — as were state nondiscrimination measures." (State nondiscrimination laws routinely ban discrimination on the basis of sex and and on the basis of sexual orientation).

Further, the proposed Equal Rights Amendment would have banned discrimination "on account of sex."  All sorts of fanciful sky-will-fall arguments were brought against the proposed Amendment, but as far as I know opponents did not seriously claim the Amendment would ban sexual orientation discrimination (and if they had, I'm sure its proponents would have sharply denied it).  And when the issue of sexual orientation discrimination first came to the Supreme Court in Bowers and Lawrence, it was not thought that the Court's prior decisions invalidating sex discrimination made these easy cases.

So this is not a situation merely of Congress not thinking carefully about the text it was enacting.  It's a situation of essentially no one for decades after the enactment thinking the text had the meaning Professor Primus now thinks is self-evident and unambiguous.  (And, I assume, there's also no record of anyone prior to the enactment thinking that sex discrimination included sexual orientation discrimination).

I would not say that evidence of this sort should always be conclusive for a textualist (although it's surely relevant).  It's possible that a text could be so clear that no amount of contrary contemporaneous understanding could overcome its literal meaning.  But in this case the text seems to be not as clear as Professor Primus contends.  As commentators including Ed Whelan (at Bench Memos) and Paul Mirengoff (at Powerline) -- and Andrew Hyman on this blog -- have argued, discrimination on the basis of sex might just mean narrowly discrimination against women (or men) for being women (or men).  Indeed, they argue it self-evidently means this.  But one need not go that far in order to find the evidence of contemporary understanding highly persuasive.

In sum, looking at the way a statutory phrase was consistently interpreted at the time of its enactment is not contrary to textualism; it's part of textualism (or rather, it's part of textualist originalism, which is what Justice Gorsuch embraces).  How much the contemporaneous understanding should count, and how clear an apparently contrary text must be, are questions of degree that may divide textualists.  But in any event I do not see that Justice Gorsuch's principles oblige him to favor the plaintiffs.


The Speech of Jacob Howard, the Prevalent Rights Theory, and the Decision in Brown v. Board of Education
Earl Maltz

[Ed.:  For this guest post we welcome Earl M. Maltz, Professor of Law at Rutgers Law School.]

In a recent post, Andrew Hyman disputes the claim that originalists should adopt what Michael Rappaport describes as the prevalent rights theory of the Privileges or Immunities Clause of the Fourteenth Amendment.  However, Hyman fails to cite the explanation of the scope of section one that was given by Jacob Howard at the time that the amendment was introduced in the Senate.

For a number of reasons, Howard’s explanation is of crucial importance to any effort to understand the original meaning of section one. First, the speech provided the only really detailed analysis of the scope of section one during the congressional debates over the Fourteenth Amendment.  Second, Howard was not speaking only in his individual capacity, but rather as the official spokesperson for the Joint Committee on Reconstruction, which had drafted the amendment.  Finally, the speech was plainly not designed to convey the subjective intentions of the drafters.  Instead, Howard purported to describe the way in which he (a trained attorney whose legal abilities were greatly respected) believed that the language would be interpreted by the courts.

After giving a general explanation of the meaning of section one, Howard focused specifically on the relationship between section one and the right to vote.  The Republican members of the Joint Committee on Reconstruction had been deeply divided over the problem of how best to address the issue of suffrage in the Fourteenth Amendment.  At one point, a majority of the members of the Joint Committee had voted to report a proposal which would have provided that, after the year 1876 “no discrimination shall be made…as to the enjoyment by persons of the right of suffrage, because of race, color, or previous condition of servitude.”  However, it quickly became clear that such a prohibition would be unpopular with crucial centrist voters.  Thus, having become convinced that “the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race,” the committee voted to remove the suffrage provision from the amendment that was ultimately reported to the House of Representatives and the Senate for consideration.  Instead, the proposal that was reported contained a provision that penalized states that did not allow African-Americans to vote by reducing the number of representatives to which those states would be entitled in the House of Representatives.

Despite this action, the opponents of the proposed constitutional amendment continued to charge that the right to vote was one of the privileges or immunities of national citizens that was guaranteed by section one and that, if adopted, the Fourteenth Amendment would therefore impose a mandate similar to that which had been embodied in the deleted suffrage provision.  While admitting that he personally would have preferred that the suffrage provision had not been deleted, Howard felt compelled to respond to this claim.

In defending the view that section one would in no way limit the authority of the states to regulate voting rights, Howard did not make any specific reference to the distinction between political rights and civil rights that is widely-discussed in the literature dealing with the original meaning of the Fourteenth Amendment.  Instead, in an apparent effort to give a more precise meaning to the concept of “civil rights” to which other Republicans had referred, he distinguished sharply between “fundamental rights [that] lie at basis of all society” and those which are derived from “positive local law.”  Against this background, Howard insisted that section one did not limit state authority to regulate elections because the right to vote was “merely the creature of law.”

Among other things, Howard’s mode of analysis has profound implications for the claim that originalists should take the view that section one protects a right of access to public education.   Like the right to vote, public education exists only because taxpayer-supported schools have been created by state law.  Thus, the fact that, by 1868, the right to a public education had been ensconced in many or even most state constitutions was simply irrelevant for Fourteenth Amendment purposes.  Instead, because public education is “merely the creature of law,” under Howard’s theory, any claimed right of access to such education would be outside the purview of section one.    In short, unless one is willing to take the position that Howard misstated the original meaning of the relevant language, the claims of those who argue that the decision in Brown v. Board of Education is consistent with originalist theory are simply insupportable.


COMMENT BY ANDREW (October 16, 2019):  Thank you to Professor Maltz for his blog post.  I want to mention that the part of Senator Howard’s speech to which Professor Maltz refers was apparently revised and extended at a later time.  Here is how the Philadelphia Inquirer quoted that part of the speech as originally delivered:

The first section of this amendment, while conferring the rights I have enumerated, does not confer any right to vote.  The right of suffrage is not, in law, one of the privileges and immunities thus secured by the Constitution.  It has always been regarded in this country as the result of positive local law.  It has not been regarded as one of those fundamental rights lying at the foundation of our society, and without which people cannot exist without being slaves or subjected to a despotism.

The first two sentences seem to support an enumerated rights interpretation of the PI Clause; it is unclear whether the last two sentences alter that support, or instead merely explain why omission of the right to vote should not defeat the proposed Amendment.  Incidentally, Howard gave this speech before Senator Benjamin Wade asked for clarification of the PI Clause, which resulted in a prefixed Citizenship Clause.


Is Puerto Rico Unconstitutional?
Michael Ramsey

Today the Supreme Court hears oral argument in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, a case of potential originalist interest.  It presents the seemingly uninspiring question "[W]hether the appointments clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico."  But it might suggest that the entire government of Puerto Rico is unconstitutional (I doubt it) or that the odious (from an originalist perspective) Insular Cases should be overruled (one can hope).  For competing views: 

At Slate, Adriel I. Cepeda Derieux: The Supreme Court Has a Chance to Bring Constitutional Equality to Puerto Rico.  An excerpt:

More than geography or distance, Supreme Court case law has framed Puerto Rico’s relationship with the United States—and the second-class constitutional status of Puerto Ricans—for more than a century. As long as U.S. territories were populated principally by white citizens, the court commonly treated the Constitution as “following the flag.” It governed in the territories just as it did in the states.

At the turn of the 20th century, however—around the same time that it upheld “separate but equal” in Plessy v. Ferguson—the court created an unprecedented rule in decisions known as the Insular Cases. Going forward, the Constitution would not fully follow the flag to newly acquired overseas territories. Some of its protections—including the fundamental right to jury trial—did not apply.

But in the New York Times, Nikolas Bowie: Will Puerto Rico Still Be Allowed to Govern Itself? (arguing that a ruling against Aurelius -- that the appointments clause does apply in Puerto Rico -- would make the island's entire governmental structure unconstitutional).

... Article IV grants Congress “power to dispose of and make all needful Rules and Regulations” for territories. Congress can structure territorial governments as it chooses.

For instance, the Northwest Ordinance of 1789 provided for a territorial legislature with one house that was popularly elected and another comprised of appointees chosen by the President from lists proposed by the elected house and confirmed by the U.S. Senate.

The Court has long held that the Constitution’s structural safeguards including the Appointments Clause do not apply to territories. As Antonin Scalia noted in Freytag (1991), “Congress may endow territorial governments with a plural executive; it may allow the executive to legislate; it may dispense with the legislature or judiciary altogether.”

UPDATE:  Sounds like there's little interest on the Court to make it a big case.