The Originalism Blog

A Comment on Federal Abortion BansAndrew Hyman

I agree with co-blogger Michael Ramsey (here) that the Commerce Clause does not empower Congress to regulate abortion, as I previously discussed on this blog here.  But Congress does have power under the Equal Protection Clause and Section 5 of teh Fourteenth Amendment to enforce a ban on abortion provided we’re talking about post-viability.  Even if a human being is a “person” pre-viability, that human being is not similarly situated to any born person.  In contrast, post-viability, there are born people at the same exact stage of development. Moreover, birth could be induced at any time post-viability, so the only slight difference between the born child and the viable unborn child is location, and so a state should protect them equally.

Cass Sunstein: ThayerismMichael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School) has posted Thayerism (16 pages) on SSRN.  Here is the abstract:

In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law. One reason is that as a matter of simple psychology, it is extremely difficult for any judge consistently to embrace it. Another reason is that Thayer’s defense of Thayerism was very thin; for the most part, he purported to be describing longstanding practice, rather than to be justifying it. But if we make certain judgments about the likely capacities and performance of judges, legislators, and others, Thayerism would make a great deal of sense. If we make contrary judgments, Thayerism would be preposterous. Selective Thayerism, of the sort defended by Bickel or Ely, might follow from yet another set of judgments. The broader lesson is that no approach to constitutional law can be adopted or rejected in the absence of an answer to the question whether it would make our constitutional order better rather than worse, which requires in turn a set of judgments about the likely behavior of various institutions. We might also understand Thayerism as a kind of arms control agreement: I will adopt a Thayerian approach if you will as well. More particularly, left-of-center judges might be willing to be Thayerian if and only if right-of-center judges are willing to be Thayerian as well. The problem, of course, is that unless a strong norm is in place, both sides will be tempted to defect. And that is, in fact, what we observe.

There’s No Federal Power to Ban Abortion [Updated]Michael Ramsey

As has been widely reported, Senator Lindsey Graham introduced a bill providing a federal ban on abortions more than 15 weeks after pregnancy, subject to some exceptions.  (Howard Wasserman comments at PrawfsBlawg here.) In my view that bill is unconstitutional as beyond Congress’ legislative power – certainly as a matter of the Constitution’s original meaning, and even under modern arguably non-originalist precedents.

Senator Graham reportedly finds power from Congress’ authority over interstate commerce and from Congress’ power to enforce the Fourteenth Amendment, specifically the equal protection clause.  I’ll focus here on the commerce clause argument; the Fourteenth Amendment argument requires one to believe the a fetus is a person for constitutional purposes, which would make state laws allowing abortion likely unconstitutional even without federal legislation – a position I think few people (and very few judges) would endorse.

Congress has Article I, Section 8 power to “regulate Commerce … among the several States.”   A transaction between an abortion provider in a state and a resident of that state may be commerce but there is no sense in which it is a transaction "among the several States." The text's inclusion of the restriction “among the several States” in the description of Congress’ commerce power shows that the commerce power doesn’t extend to all commerce and that local commerce (commerce not among the several states) is excluded.  As Chief Justice Marshall put it in Gibbons v. Ogden (1824):

The subject to which the power is applied, is commerce "among the several States".  The word "among" means intermingled with. A thing which is among others is intermingled with them.  ...

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other states.  Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as the word "among" is, it may properly be restricted to that commerce which concerns more States than one.  The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power would to be extended, would not have been made, had the intention been to extend the power to every description.  The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentences, must be the purely internal commerce of a State.

Congress also has power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [i.e., those previously listed in Article I, Section 8].”  Thus Congress has power to make laws necessary and proper to carry into execution its power to regulate commerce among the several states.  On this basis, the modern Supreme Court has approved some laws reaching activities taking place only within a state – most famously growing wheat for personal consumption (Wickard v. Filburn) and possessing marijuana for personal consumption (Gonzales v. Raich).

I think these cases were likely decided incorrectly as matter of original meaning, largely for the reasons stated in Justice O’Connor’s dissent (joined by Justice Thomas) in Raich.  But even if they weren’t, they are easily distinguishable from a federal abortion ban. Wickard and Raich both involved federal regulations of interstate commerce clearly within Congress’ Section 8 power: in Wickard, controlling prices in the interstate wheat market, and in Raich the prohibition of the interstate sale of marijuana. According to the Court, in each case Congress’ regulation of local production and use was “necessary” (perhaps not strictly necessary, but at least useful) to further Congress’ regulation of the interstate market, because the local transactions were not readily separable from interstate transactions.  In the abortion ban situation, there is nothing comparable.  Congress is banning local abortions simply to ban local abortions, not to further a regulation of interstate commerce of which local abortions are an inseparable part.

It’s true that Congress’ interstate commerce power may allow Congress to ban interstate travel for purposes of obtaining an abortion.  But the existence of local abortion providers would not undermine such a regulation, because local providers could easily require proof of residency (and the law could require them to).  In any event, the Graham bill does not justify itself in this way.

Congress might also try to justify the Graham bill on the grounds that local abortion services within a state have a “substantial effect” on the national economy.  Although the Court has used the “substantial effect” phrase in cases like Wickard and Raich, it has not allowed mere speculation about remote effects on the national economy to justify regulation of local matters.  In U.S. v. Lopez, for example, the Court (with Justices Scalia and Thomas in the majority) rejected speculation about remote effects on the national economy as a justification for federal regulation of guns near schools.  Any claim about how local abortions affect the national market would be very similar to (and as remote as) the failed justification in Lopez.  And Lopez was surely right on this point as a matter of original meaning, again for the reasons stated by Marshall in Gibbons: “The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentences, must be the purely internal commerce of a State.”  Accepting the justification proffered in Lopez would erase the distinction between local and national.

Another possible justification is that, to the extent the abortion providers use materials that have been sold in interstate commerce, the providers are subject to federal regulation. Some lower courts have accepted a similar justification in analogous cases, and the Supreme Court suggested it in Katzenbach v. McClung (involving federal regulation of the local activities of a restaurant that purchased meat in interstate commerce). But such a regulation isn’t really a regulation of commerce among the states; it’s a regulation of activity within a state, with only a tenuous connection to interstate activities that does not make its regulation necessary and proper to any enumerated federal power.  As in Lopez, accepting this argument would erase the distinction between local and national.  (McClung is better defended as resting on its primary rationale that, as in Wickard and Raich, the regulation of the local activity was necessary to a broader federal regulation of interstate activity.)

These justifications of broad federal power might be more plausible if they were supported by history of early post-ratification federal regulation that were justified on these grounds. That’s especially true given the Court’s recent emphasis on history and tradition as indicators of original meaning.  But I’m not aware of any early federal law justified on either ground (that is, that a local activity might have a remote speculative effect on the national economy or that an object used in a local activity once moved in interstate commerce).  Thus, if there's any ambiguity as to the original meaning here (which I doubt), history and tradition indicate that the potential justifications for the federal ban are insufficient.

The core problem with justifying a federal abortion ban under the power to regulate "commerce among the several States" is that the ban's ultimate goal has nothing to do with commerce among the states. Its target is a local medical practice that has long been the subject of state regulation.  Any claim that it’s about a matter of interstate commerce is just a pretext.  It is not a measure to carry into execution a regulation of interstate commerce: unlike in Wickard and Raich, its motivation is only to claim federal power over activity wholly within a state.  As Chief Justice Marshall also said (in McCulloch v. Maryland), Congress has considerable leeway in deciding how to implement its goals as long as its goals are legitimate (i.e., within Congress’ constitutional power). But, he continued:

[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Go.vernment, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.

That is the case of the federal abortion ban: Congress would be “pass[ing] laws for the accomplishment of objects [i.e., regulation of local abortion services] not intrusted to the [federal] Government.”

RELATED:  A Wall Street Journal editorial adds:  "If Republicans care about originalism, and many of them do, then it’s a mistake to start arguing that abortion regulations qualify as 'commerce.'"  Agreed (though I think they meant to say "regulations of interstate commerce").

ALSO RELATED:  From long ago but still on point, Glenn Reynolds and David Kopel: Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban.

UPDATE:  Glenn Reynolds in the New York Post: Sorry, Lindsey Graham: Congress doesn’t have the power to legislate on abortion.

FURTHER UPDATE:  John Yoo agrees in the Washington Post, though without much originalist analysis: Schumer and Graham are both wrong on abortion: Congress can’t legislate it (relying mostly on the modern Supreme Court's Lopez and Morrison opinions).  At Volokh Conspiracy, Ilya Somin agrees on the originalist analysis but is less sure on the modern doctrine:  Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism - But it Might Fly Under Current Supreme Court Precedent.

Professor Somin sees Gonzales v. Raich as the main precedent that would be invoked in support of a ban.  He's right that there is some unfortunately broad language in Raich.  But I think the Raich holding is distinguishable for the reasons described in my initial post, and I doubt there are five votes on the current Court for an expansion of Raich in a direction clearly unsupported by the Constitution's original meaning.

Marc DeGirolami Blogging about his Article "Traditionalism Rising"Michael Ramsey

At Volokh Conspiracy, Marc DeGirolami (St. John's) has a series of guest posts on his forthcoming article Traditionalism Rising (noted here).

Traditionalism Rising, Part I: Defining Traditionalism and Locating It in the Court's 2021 Term

Traditionalism Rising, Part II: Comparing (Liquidated) Originalism and Traditionalism

Traditionalism Rising, Part III: The "Level of Generality" Problem

Traditionalism Rising, Part IV: The Problem of Justification

Traditionalism Rising, Part V: The Problem of Politics

Here is the introduction from the first post:

Eugene [Volokh] has graciously invited me to write a few posts about my new article, Traditionalism Rising (forthcoming in the Journal of Contemporary Legal Studies and part of a symposium this fall at the University of San Diego School of Law). The piece builds on and extends a larger project about constitutional traditionalism developed in earlier papers (here and here), as well as in a broader research program, The Tradition Project, that my colleague (and Volokh co-conspirator) Mark Movsesian and I have pursued over several years at our Center for Law and Religion. I've been a dedicated reader of the Volokh Conspiracy since I was a law prof pup, so it is a pleasure for me to contribute something.

My posts will: (1) define traditionalism and locate it in the Supreme Court's work this past term; (2) compare traditionalism and originalism, particularly what the paper calls "liquidated originalism"; (3) address traditionalism's "level of generality" problem, the problem how to select the operative tradition; (4) offer several justifications for traditionalism; (5) consider the problem of traditionalism's politics. Most of the material is excerpted or summarized from the article, but I invite readers to look at the piece for the full-dress argument. I welcome reactions to the paper, which is still a draft.

Janine Young Kim: What is an Unreasonable Search?Michael Ramsey

Janine Young Kim (Chapman University, Dale E. Fowler School of Law) has posted What is an Unreasonable Search? (Oregon Law Review, forthcoming) (33 pages) on SSRN.  Here is the abstract:

What is an unreasonable search? This brief historical study examines the 18th century meaning of reasonableness for insight into this question. This history does not provide a single or complete answer, and offers instead multiple possible meanings based on both long-standing common law rules and principles as well as the immediate experiences of the framing generation. From these, we can glean what Chief Justice Roberts calls “some basic guideposts” that can inform Fourth Amendment analysis and bring much-needed discipline and legitimacy to the modern jurisprudence of reasonableness. Some of these guideposts are particularly relevant today as the Supreme Court continues to enlarge the powers of the police while the criminal justice system deepens racial inequality. This article highlights four such guideposts that focus on concerns about abuse of power, the public good, inequality/bias, and absurdity in the historic struggle to constrain government intrusion into the people’s lives.

Judge Britt Grant on Nationwide Injunctions (with Comments from Samuel Bray)Michael Ramsey

In Georgia v. President of the United States, recently decided by the Eleventh Circuit, Judge Britt Grant writing for the panel has some sharp analysis of the overuse of nationwide injunctions.  Part V begins:

After deciding that a preliminary injunction was appropriate, the district court enjoined the enforcement of the contractor vaccine mandate—against any contractor, anywhere in the United States, plaintiff or not. We are both weary and wary of this drastic form of relief. In their universal reach to plaintiffs and nonplaintiffs alike, nationwide injunctions push against the boundaries of judicial power, and very often impede the proper functioning of
our federal court system.

The constitutional backbone of the federal judiciary is our role in deciding cases and  controversies. U.S. Const. art. III, § 2, cl. 1; see also Gill v. Whitford, 138 S. Ct. 1916, 1933 (2018) (“constitutionally prescribed role” of the federal judiciary is “to vindicate the
individual rights of the people appearing before it”). In practice, fidelity to that role often limits the relief we can offer—while “federal courts possess broad discretion to fashion an equitable remedy,” that discretion is bounded by both historical practice and traditional remedial principles. Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1290 (11th Cir. 2015); see Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc.,
527 U.S. 308, 318–19 (1999). ...

And in conclusion:

This case shows both the difficulty and the importance of considering whether the courts can offer complete relief to the plaintiffs in federal regulatory challenges without issuing a nationwide injunction. Here, we can. So we must.

At Volokh Conspiracy, Samuel Bray (whose article is cited by Judge Grant) has thoughts: The Eleventh Circuit Reins in the National Injunction.  From the introduction:

The analysis in Judge Grant's opinion is incisive and thorough (and very well written). It moves from Article III to the traditional scope of equitable powers to circuit precedent, and back to the distributed decisionmaking that is characteristic of the federal courts. Most of these points will not surprise those who have been following the debate about national injunctions, but this is an excellent restatement of all the major concerns. There are also some new or distinctive points to highlight ...

Among his specific points:

First, this opinion expressly allows national injunctions in "appropriate" but "rare" cases. This express allowance is based on circuit precedent ("Consistent with these principles, we have said that a nationwide injunction may be issued 'in appropriate circumstances'" (citing circuit precedent)). But the devil is in the details. Some courts say something like that, and then give reasons for a national injunction that could be found in essentially every case, such as a need for uniformity or the equal application of the law (i.e., between parties and non-parties). But this opinion tightens the screws. None of the "factors" that might suggest a broader injunction require one, and in every case the district court must "wrestle" with how to give an injunction that is no broader than needed to address the injury to the parties. After this decision, the result may be that national injunctions are permissible in theory but not in fact.

Second, this opinion is unique in how it gives a wide set of illustrations of how Congress can depart from the norm of letting separate cases, like a thousand flowers, bloom. These illustrations undergird the court's conclusion that "nonuniformity is a deliberate feature of our federal court system, and Congress--not one of the 94 federal district courts or 12 regional circuit courts--is best positioned to choose when to depart from that norm."

In conclusion:

[A] decision like Georgia v. President of the United States offers a roadmap for how a circuit that has allowed national injunctions in the past can, without any reversal of its precedent, do its part to put the national injunction on a path to extinction.

Christina Parajon Skinner: The Monetary ExecutiveMichael Ramsey

Christina Parajon Skinner (University of Pennsylvania - The Wharton School) has posted The Monetary Executive (George Washington Law Review, Vol. 91, 2023) (56 pages) on SSRN.  Here is the abstract:

As inflation in 2022 surges to a forty-year high, economists, lawmakers, and the public continue to question why. As part of that inquiry, experts and onlookers seek explanations grounded in errors recently made by the central bank, the U.S. Federal Reserve. This Article argues that, while there is no doubt a host of contributing factors to the current bout of inflation, the President’s role remains comparatively understudied. In particular, the Article adds a new dimension to the growing literature on the fiscal foundations of inflation by studying its longstanding statutory roots, which can be traced back to the New Deal Era. Although the Framers of the Constitution were deliberate in vesting power over money and spending with Congress, and separating it from the President, in time, Congress eroded this separation with successive ad hoc delegations directly to the Executive. As a consequence, today, the President has far more influence over money in the economy—and levers for “fiscal dominance”—than the Constitution arguably allows, casting a long shadow over the Federal Reserve’s ability to properly rein in inflation. The Article traces the development of a “Monetary Executive” through the lens of statutory delegations, and suggests the need for new constraints on Fed policy tools to help buffer against pressure from the President to increase the money supply.

This isn't really an originalist paper, but it points the way to what would be an interesting paper hat might be titled The Original Understanding of the Monetary Executive.

Why the Major Questions Doctrine is a Good IdeaAndrew Hyman

The Major Questions Doctrine has been discussed at this blog recently, with Mike Rappaport against it, and Michael Ramsey undecided but leaning in favor.  I’m all for it.

The Major Questions Doctrine is one of many clear statement rules that the Supreme Court has adopted over decades and centuries, and this particular one has a reasonable basis in the Constitution’s original meaning.  According to the founders, both Congress and the President are entitled---indeed obligated by their oaths---to evaluate legislation for constitutionality, rather than just leaving that whole task to judges, and a clear statement rule encourages that to happen, while a clear statement itself is an important sign that perhaps it really did happen.  No one disputes that a President can veto legislation he thinks is unconstitutional, and likewise that Congress can decide not to pass legislation it thinks is unconstitutional, even if the courts remain willing to apply such legislation in cases that come before them, and even if the legislation seems otherwise desirable in the view of the President and Congress.  Such multi-branch respect for the Constitution is an important aspect of our system of government, but as Justice Scalia wrote, "The modern Congress sails close to the wind all the time."

The clear statement rule required by the Major Questions Doctrine (MQD) is closely connected with the first sentence of the Constitution, which vests all legislative power granted by the Constitution in Congress.  Congress is thereby barred from delegating power, and thus (as John Locke said about parliament) is only "to make laws, and not to make legislators."  The U.S. Supreme Court has said it is only willing to do the bare minimum to directly effectuate that nondelegation principle, but in recent years has also wanted a clear indication from Congress about how its legislation is affected by the nondelegation principle.  Accordingly, Congress’s clear statement in legislation does not necessarily have to cite the Constitution or its first sentence, but it does have to affirm congressional intent to do those things that are in substantial tension with the first sentence of the Constitution.  So the MQD seems straightforward and unobjectionable to me.  Chief Justice Marshall once wrote:

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.

Subsequently, the Supreme Court drew a very permissive line, and later invited Congress to weigh in on that constitutional question too, with the MQD requiring Congress to clearly show in statutory text that it has considered the statutory ramifications that are in tension with the first sentence of the Constitution:  "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."  This is not an outright rejection of legislation by the Supreme Court, because Congress can simply rephrase.  And hopefully also face up to its duty to independently assess constitutionality of the stuff it is forced to clearly state.

Professor Rappaport believes that the MQD "neither enforces the Constitution nor applies ordinary methods of statutory interpretation."  But it does make enforcement of the Constitution more likely.  It's basically a big yellow light for Congress, instead of red or green.  

Dean Chemerinsky is Wrong on Originalism (Again)Michael Ramsey

In The Atlantic, Erwin Chemerinsky: Even the Founders Didn’t Believe in Originalism.  He principally argues points, both of which have been refuted many times, but it's probably worth going through them again.  A third, which he introduces only at the end, is somewhat interesting.

First, he says that the Constitution's original meaning does not convey a power of judicial review:

Nothing in Article III explicitly authorizes courts to review the constitutionality of laws and executive actions. Article III, Section 2, defines the types of “cases” and “controversies” the federal courts may hear, but it says nothing whatsoever about a power to declare laws or executive acts unconstitutional. Nor is this power inherent in the authority granted to courts by Article III. Even if federal courts could not declare laws unconstitutional, they still could exercise their constitutional authority to decide the cases and controversies that come before them. Federal courts could apply federal law, decide diversity cases, and resolve all of the other matters enumerated in Article III, Section 2 without being allowed to invalidate a statute or executive action on constitutional grounds. No such power existed in English courts. One would think that if the Framers meant for the Constitution to deviate from English law and practice in such a fundamental way, they would have been explicit about it.

This is wrong on two counts.  As to the text, Article III gives federal courts jurisdiction over cases "arising under this Constitution."  What are cases arising under the Constitution? The Constitution constrains governmental action; necessarily, a case arising under the Constitution is a claim that some governmental action violates the Constitution and thus should not be permitted by the courts.  I don't see what else it could be.  (The above-quoted discussion is all Dean Chemerinsky says about Article III; he does not mention the courts' jurisdiction over constitutional cases).  Moreover, Article VI makes "this Constitution ... the supreme Law of the Land" with judges "bound thereby", and requires that "judicial Officers ... shall be bound by Oath or Affirmation, to support this Constitution."  Coupled with Article III's grant of constitutional jurisdiction, this seems plainly to direct courts to make independent judgments of the constitutionality of governmental action.

As to the deviation from English law, the central point of the written Constitution was to deviate from English law, which did not have a single source of constitutional rights and structure that could be enforced by judges.  (As an aside, English judges had power to invalidate executive action on constitutional grounds; they did not have power to constrain parliament on constitutional grounds, but again the Constitution's central project was to reject the unlimited sovereignty of Parliament in favor of a limited legislative power in Congress).

Chemerinsky continues:

Nor do the records of the Constitutional Convention reveal an agreed-upon desire to give the Supreme Court the power to strike down laws or executive actions. ... Alexander Hamilton argued for this power in “Federalist No. 78,” so perhaps it was assumed that judicial review would exist. Some state courts did exercise that power. But this is a flimsy basis for such a consequential authority, which has been central to American constitutional law and government since its creation by Marbury v. Madison in 1803.

This does not seem like a "flimsy basis" to me, especially added to the textual evidence noted above.  If a pre-Convention understanding of judicial power in the states was that it included the power to invalidate governmental action under the written state constitutions, and if the leading (and uncontradicted) post-Convention explanation of the judicial power in the Constitution was that it included the power to invalidate governmental action under the written federal Constitution, that seems like strong evidence to me that the text means what it appears to say in giving courts constitutional jurisdiction. 

Chemerinsky then shifts to a second argument: 

Assuming that originalists can surmount this problem and somehow make a convincing case that judicial review is justified under the original meaning of the Constitution, they run right into another problem. ... Originalism requires that [interpreters] ask: What was the original understanding of how the Constitution should be interpreted?

In his 1985 article “The Original Understanding of Original Intent,” the law professor H. Jefferson Powell laid out strong evidence that the Framers of the Constitution never meant their own intent to be controlling. At the Philadelphia Convention, the Framers explicitly indicated that they did not want their specific intentions to control the Constitution’s interpretation. Years later, James Madison maintained that the Philadelphia proceedings “can have no authoritative character” and that the document coming out of it “was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through [the state] Conventions” that ratified the Constitution in 1787–90. The delegates also took steps to shield convention records from public view. They met under a rule of secrecy and preserved the records’ confidentiality when they adjourned by depositing the documents with George Washington. The records remained in “confidential limbo” until 1818, when John Quincy Adams organized and published them.

Those looking for evidence of original meaning in the Philadelphia debates often use Madison’s notes. These are apparently the most comprehensive of several unofficial reports, yet they covered no more than 10 percent of the proceedings. Madison himself treated his notes as private property because he thought that the proceedings “could never be regarded as the oracular guide in expounding the Constitution.” The late Yale professor Boris Bittker argued that originalists have failed to explain why the Framers’ intent should be reconstructed from a private document that Madison intentionally withheld.

This argument has been answered many times by originalist scholars, and indeed in part by Professor Powell himself.  Modern originalism does not see the "Framers' intent" as the touchstone of constitutional meaning.  Rather, the meaning comes from the text itself, understood in the context in which it was adopted.  Public statements of the framers, along with those of other members of the founding generation, can be helpful in determining that textual meaning.  But these statements (much less the Framers' private intentions) are not "controlling".  The text is controlling.  Dean Chemerinsky is arguing against a form of originalism that hasn't been widespread since the 1980s.

Specifically as to Madison's notes, their limitations are widely recognized and they are not commonly treated as authoritative as to meaning by originalist scholars.  (Justice Scalia did not cite the Convention records often, for example.)  The notes can be helpful in understanding why a particular clause took the form it did, or how people of the founding generation used language, and so can be a sometimes useful tool in determining textual meaning, but they are not (to most originalists) more than that.

Chemerinsky ultimately acknowledges that he's arguing against an old form of originalism, and in response advances a third argument:

Originalists might answer that I have ignored how originalism has changed over time. The legal philosophy initially focused on the Framers’ intent, and their rejection of originalism would be relevant under that approach. Now, however, most originalists focus on determining the original meaning of a constitutional provision rather than the specific intent of the Framers. Therefore, they would say, my argument about the drafters’ theory of interpretation is misguided and irrelevant.  [Ed.:  Yep.]

Still, this does not solve the originalists’ incoherence problem. Originalism would be justified under its own terms only if there was a basis for concluding that the original understanding of Article III was for judicial review to follow the original meaning of the Constitution. No support exists for such an assertion.

...

The original meaning of the Constitution, if it included judicial review at all, did not embrace originalism as the method for interpreting the document. Originalism then self-destructs; to follow originalism requires abandoning it.

Though underdeveloped, this raises an interesting point.  Does originalism's coherence depend on proof that the the Constitution's original meaning contains a direction to use the original meaning?

Originalists might well respond that the Constitution's original meaning does have such a direction.  Dean Chemerinsky dismisses this idea without much discussion, but a number of originalist scholars (including co-bloggers Mike Rappaport and Chris Green) have made versions of the argument.  And indeed, it seems implausible that the Framers would have spent many un-air-conditioned months in Philadelphia in the summer developing a fairly detailed plan of government on the background assumption that future judges could say that their language meant whatever the judges thought it should.  Rather, when one uses language, especially legal language, the ordinary assumption (absent contrary indications) is that it contains fixed directions -- otherwise, what's the point?

But the more interesting question is whether originalists are bound to make this argument to avoid "incoherence" and "self-destruct[ion]."  I think perhaps not.  Why could one not say (a) I'm not sure how the Framers expected the text to be interpreted, but (b) for normative reasons, principally rule of law values such as neutrality, stability and constraint, I think the best course would be to use the text's original meaning, as opposed to a meaning to be invented by modern judges?

RELATED:  The Atlantic article notes that it is excerpted from Dean Chemerinsky’s new book, Worse Than Nothing: The Dangerous Fallacy of Originalism (Yale University Press 2022).  Adam White reviews the book in the Wall Street Journal (somewhat unfavorably) here.

Is the Burden of Proof for Judicial Review a Precept of Natural Law?Chris Green

In a recent discussion of natural law and interpretation, Lee Strang and Joel Alicea noted that some originalists—John McGinnis and me—have argued that there is a clarity requirement for judicial review. Even if a bare preponderance of the evidence suggests that a statute is unconstitutional, unless that evidence is clear and convincing, courts should refrain from speaking about constitutional requirements unless and until they get better evidence. This is what the words “judicial power” in Article III and state constitutions expressed in context: the power to exercise judicial review, but not in unclear cases.  (As Mike Ramsey has noted, Eric Segall has likewise relied on our work recently.)

Some other originalists have, of course, disagreed with us. Some of them have canvassed early instances of judicial review and noted that they seemed to occur in unclear cases. Others have suggested that the rationale for a clarity requirement is obsolete, because it is based on the empirical claim, frequently false today, that the legislature has itself carefully thought about constitutional issues. These replies, of course, engage the issue of what “judicial power” expressed in its original context. The claim about actual instances of judicial review sees its meaning as more closely tied to applications at the time of the founding, rather than statements of principle, while the claim about obsolescence would read “judicial power” to have expressed a principle more abstract than how the many early statements of a clarity requirement read the phrase.

Conor Casey and Adrian Vermeule, though, take a very different tack in responding to Strang and Alicea. They say that rules like the clarity requirement for judicial review, like other “closure rules” that govern what to do when interpreters are less than completely certain about constitutional meaning, are actually instances of “ius” as opposed to “lex”—i.e., principles of natural law rather than positive law. “The best account of 'closure rules,' then, is that they are just another set of arguments about the content of ius, as opposed to lex. Closure rules are just ius for originalists.”

This is quite a bold claim. But if extraordinary claims require extraordinary evidence, Casey and Vermeule’s reasons to think that closure rules are always ius in disguise seem quite inadequate indeed. They do not engage with the literature on a clarity requirement for judicial review at all. In rebutting the idea that we can think about issues like the scope of “judicial power” the way the founding generation did, Casey and Vermeule contend categorically that “such rules themselves come in multiple competing versions.” But this is just not true with respect to the statement of a principle of a clarity requirement for judicial review. The extent of unanimity among early courts is remarkable.   Further, a canvass of the reasoning of these courts (see pp. 192-95) reveals nothing of the sort of natural-law-infused interpretive approach that Casey and Vermeule prefer and to which they think “jurists will inevitably appeal.” As noted above, there are issues about the consistency of early courts in the application of those principles, and a question about the extent to which the principle is implicitly fact-dependent in a way that can license stricter judicial review in a world with less legislative constitutional interpretation. But these are not different statements of the principle of how to resolve the allocation of power between legislatures and courts. When courts stated that principle, they spoke with a striking degree of unanimity, and without appealing to natural law. Casey and Vermeule assume a priori that “multiple competing versions” of the scope of judicial power must have been articulated historically. But they just weren’t.

Marc DeGirolami: Traditionalism RisingMichael Ramsey

Marc O. DeGirolami (St. John's University - School of Law) has posted Traditionalism Rising (Journal of Contemporary Legal Issues, forthcoming) (49 pages) on SSRN.  Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

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

I think the key question (to which I don't have an answer) is to what extent traditionalism is different from originalism rather than being a methodology of originalism.  I'm not sure the Court has an answer either, at least not yet. (Scalia, in my view, thought it was a methodology of originalism.)

Also, it's great to see the Journal of Contemporary Legal Issues (JCLI), the University of San Diego law school's faculty-run journal, back in operation after a brief hiatus and publishing important work.

Chad Squitieri on the Major Questions DoctrineMichael Ramsey

At Law & Liberty, Chad Squitieri (Catholic): Major Problems with Major Questions. From the introduction: 

This July in West Virginia v. EPA, the Supreme Court formally recognized the “major questions doctrine.” That doctrine, which can be traced to a 1986 law review article published by then-Judge Stephen Breyer, calls on courts to consider a legal question’s “political importance” when interpreting statutes.

The major questions doctrine is a product of legal pragmatism—a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text. The doctrine is inconsistent with textualism—an interpretive theory that emphasizes statutory text, structure, and history to understand a statute as the public originally understood it. The takeaway is clear: textualists should reject Justice Breyer’s major questions doctrine.

And from the conclusion: 

A textualist analysis of the relevant constitutional provisions reveals that the major questions doctrine undermines, rather than promotes, the Constitution’s chosen means for promoting democracy.

Article I, Section 7 of the Constitution outlines the exclusive means of enacting federal statutes. That provision requires a specific democratic process: both the House and Senate must approve statutory text that is then presented to the President for approval or veto. Throughout that democratic process, any federal legislator or the President may negotiate for different statutory language—including when the legislator or President thinks different language would better address topics that the legislator or President thinks to be of major political importance. But Article I, Section 7 does not permit the federal judiciary to similarly exercise political judgment as a participant in the lawmaking process.

Instead, federal courts merely exercise legal (not political) judgment by interpreting the final statutory language that survives the Article I, Section 7 lawmaking process. The major questions doctrine—which permits unelected judges to withhold legal effect from a law due to political calculations of majorness, similar to what an elected President might do when exercising the veto power or an elected legislator might do when considering a bill—runs afoul of the Constitution’s exclusive means (Article I, Section 7) for democratic lawmaking.

For textualists concerned with reigning in the administrative state, the major questions doctrine might seem like a step in the right direction. After all, the Supreme Court has been loath to enforce the nondelegation doctrine in recent decades, and sometimes enforcing the Constitution’s limitations on delegations of congressional authority is better than never enforcing those limitations at all. But invoking the major questions doctrine is the wrong way to enforce nondelegation concerns because invoking the major questions doctrine (and its focus on political calculations) comes at the cost of undermining textualism (and its separation of legal and policy considerations) more generally. Textualists would thus do best by rejecting the major questions doctrine and instead applying the Constitution’s limitations on delegations across the board—not just in those instances that a judge thinks to be of particular political importance.

My tentative somewhat contrary views are here.  He makes good points, though.  I remain undecided for now.

Aaron Tang: History, Tradition, and the Uncertain Future of a Nationwide Abortion BanMichael Ramsey

Aaron Tang (University of California, Davis - School of Law) has posted After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban (Stanford Law Review, forthcoming) (55 pages) on SSRN.  Here is the abstract:

For many Americans, Dobbs v. Jackson Women’s Health Organization signaled the end of things once thought secure: the constitutional right to reproductive autonomy, a vision of women as equal citizens, and the belief that the Supreme Court can rise above politics to protect cherished liberties.

To many anti-abortion groups, however, Dobbs was just the beginning. Merely permitting states to prohibit abortion was never the endgame; their goal has always been a nationwide ban. One path for accomplishing it runs through Congress in the form of a federal statutory ban. A second runs back through the Court in the form of constitutional fetal personhood, or the argument that an unborn fetus is a “person” whose life states would be compelled to protect under the Fourteenth Amendment.

In this Article, I examine the legal future of both pathways in light of the Dobbs majority’s own historical analysis. With respect to a federal abortion ban, many have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. I thus consider a different possibility: even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. For as Dobbs admits, every single state at the founding permitted abortion before quickening, at roughly 16-18 weeks of pregnancy. Dobbs’s own history and tradition test thus plausibly suggests a surprising result: a federal abortion ban may violate the Fifth Amendment Due Process Clause.

With respect to fetal personhood, Dobbs concedes that even as of the Fourteenth Amendment’s enactment in 1868, some states continued to permit abortion early in pregnancy. In truth, Dobbs severely undercounts that number: as many as 21 states, not the 9 Dobbs suggests, permitted pre-quickening abortion. This casts doubt on the fetal personhood argument because it shows that when the Amendment was ratified, most states did not understand unborn fetuses to be “persons” with respect to the precise question at hand. To recognize fetal personhood would require one to conclude that a majority of states were violating the very amendment they’d just ratified.

Steven Calabresi, Gary Lawson & Elise Kostial: What McCulloch v. Maryland Got Wrong [Updated]Michael Ramsey

Steven G. Calabresi (Northwestern University - Pritzker School of Law), Gary Lawson (Boston University School of Law) & Elise Kostial (Yale Law School J.D. '22) have posted What McCulloch v. Maryland Got Wrong: The Original Meaning of 'Necessary' is Not 'Useful', 'Convenient', or 'Rational' (109 pages) on SSRN.  Here is the abstract:

McCulloch v. Maryland, echoing Alexander Hamilton nearly thirty years earlier, claimed of the word 'necessary' in the Necessary and Proper Clause: 'If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports that one thing is convenient, or useful . . . to another.'. Modern case law has translated that understanding into a rational-basis test that treats the issue of necessity as all but nonjusticiable; The Supreme Court has never found a congressional law unconstitutional on the ground that it was not 'necessary . . . for carrying into Execution' a federal power. Marshall, and Hamilton before him, were simply wrong in their empirical claim about the meaning of 'necessary'. We show, using founding-era dictionaries, an extensive corpus linguistic study of founding-era sources, and intertextual and intratextual analysis, that the original meaning of 'necessary' cannot plausibly be equated with 'convenient', 'useful', 'conducive to', or 'rational'. The case against Marshall and Hamilton’s linguistic claim is simply overwhelming. That does not mean that executory laws are 'necessary' only if 'indispensable', as the State of Maryland, echoing Thomas Jefferson, argued in McCulloch. While that strict meaning finds support in many of the sources that we examine, it does not constitute the best meaning in the specific context in which the term 'necessary' appears in the Constitution: A clause defining the incidental powers of agents. In that setting, familiar from the law of agency, a better fit is James Madison’s view that executory laws are necessary if they exhibit “a definite connection between means and ends, ”'showing some obvious and precise affinity' between the laws and the powers which they implement. In modern parlance drawn from another context, one might say that executory laws are necessary if they are congruent and proportional to the task to which they are put. Our principal goal in this article is not to defend this Madisonian view of necessity but simply to show that Marshall and Hamilton’s linguistic claim about the meaning of 'necessary' is false. We do not offer a comprehensive account of the original meaning of the Necessary and Proper Clause beyond this simple observation. But because McCulloch’s dictum has become canonical, we examine some of the leading cases involving federal power to see whether substituting a congruence-and-proportionality test for the test of usefulness, convenience, or rationality would make a large difference in outcomes. Holding all other elements and applications of doctrine equal, we find only a few cases in which getting right the original meaning of 'necessary' might make a difference – and those cases are already widely seen as anomalous under current doctrine. Nonetheless, there is value in getting such things right, including focusing attention on the extent to which the Necessary and Proper Clause rather than the Commerce Clause is the key to understanding the scope of federal power.

Agreed, and I think the conclusion is more significant than the abstract (toward the end) suggests.

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

UPDATE #2:  At Volokh Conspiracy, Samuel Bray comments: Is "Necessary and Proper" a Hendiadys? Responding to Calabresi, Kostial, and Lawson.  From the introduction:

Like the Dude, McCulloch v. Maryland abides. Steve Calabresi, Elise Kostiel, and Gary Lawson have a new paper called "What McCulloch v. Maryland Got Wrong: The Original Meaning of 'Necessary' Is Not 'Useful,' 'Convenient,' or 'Rational.'" Anyone interested in McCulloch should read their article, but I want to keep the conversation going about whether "necessary and proper" is a hendiadys. That's a claim I advanced in "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution. A hendiadys occurs when two words, separated by a conjunction, are used as a single unit of meaning (with each contributing something distinctive--not mere repetition).

In text, the authors suggest that my argument is opposed to Chief Justice Marshall's, because he treats each term as having "independent significance," while if the phrase is a hendiadys that would not be true. (I'm not sure Chief Justice Marshall actually argues that, but let's leave that aside for now.) The authors then drop [an extensive] footnote ...  [quotation of footnote omitted].

There are three different arguments here, and I'll give the briefest of responses with pointers for anyone who wants to read more....

Eric Segall on Originalism and RestraintMichael Ramsey

At Dorf on Law, Eric Segall: Originalism, Deference, and Judicial Hypocrisy. From the introduction:

I am currently working on a long law review article showing that the original meaning of judicial review is nothing like the practice of judicial review today. One can believe in originalism or one can believe in non-deferential, strong judicial review, but one cannot believe in both (at least with intellectual consistency). This blog post is a short summary of that thesis with a lot more to come.

Originalist Professors Michael Rappaport and John McGinnis have long argued in essays, articles, and a book that judges today should use only those interpretive methods that were available to judges at the founding to decide constitutional law cases. The early originalists such as Robert Bork and Raoul Berger would have certainly agreed with that thesis. Professors Will Baude and Steve Sachs, who maintain that our law today is the original law until formally changed, would likely agree with Rappaport and McGinnis. And, most New Originalists, who disagree among themselves about many aspects of constitutional interpretation, would nevertheless likely accept that judges should conduct both constitutional interpretation and constitutional construction in ways similar to how judges acted around the time of the ratification of the Constitution. In essence, Originalists today believe judges should look to relevant ratification periods to determine how today’s judges should decide cases (leaving aside the issue of following non-originalist case law).

...

If originalism is our law, then judges have a duty of substantial deference in all cases not directly affecting federal courts themselves, such as issues concerning juries and federal jurisdiction. Even at the founding, judges exercised relatively strong judicial review in cases where the judicial power or jury rights were directly at issue.

On the other hand, in all other cases, overwhelming evidence suggests that originalist judges should rarely overturn state or federal laws. What that means for today is whether the case involves affirmative action, free speech, abortion, gun rights, separation of powers, federalism, or most other constitutional questions, judges should only invalidate state or federal laws upon a clear showing by the plaintiff of constitutional error and an opinion that makes extremely transparent the nature of that error. ...

I suspect, though, that in many of the cases to which Professor Segall objects, the judges think the constitutional violation is clear.  So I'm not sure how as a practical matter this idea gets implemented.

More from Rob Natelson on the Indian Commerce ClauseMichael Ramsey

Recently published, in the Federalist Society Review, Robert Natelson: The Original Understanding of the Indian Commerce Clause: An Update.  From the introduction (footnotes omitted):

Since 2019, the Supreme Court has issued four major decisions on Indian tribal sovereignty law issues. Perhaps this is a belated response to Justice Clarence Thomas’s call for clarifying a body of jurisprudence long plagued by doctrinal confusion. That confusion may be the reason for the fractured votes in all four recent cases: Three were decided by 5-4 margins, and one on a vote of 3-2-4.

The Court has agreed to consider four more cases, now consolidated, in the October 2022 term. They test the constitutionality of the federal Indian Child Welfare Act of 1978 (ICWA). This statute purports to govern the removal and out-of-home placement of American Indian children, to override state jurisdiction, and to dictate procedures to state courts.

There is fierce controversy among child advocates over the merits of the ICWA. The pending cases, however, all focus on constitutional issues alone. They raise questions of Fifth Amendment equal protection and due process, delegation of legislative power, and federal commandeering of state officials. However, their most fundamental question is whether Congress’s enumerated powers include authority to intervene in child placement decisions at all—even though family law is “an area that has long been regarded as a virtually exclusive province of the States.”

In one of the ICWA’s recitals, Congress identifies the Indian Commerce Clause as its principal constitutional justification.[The ICWA further recites that the Indian Commerce Clause and unspecified “other constitutional authority grants Congress plenary power over all Indian affairs.”

For reasons explained in this article, this recital is erroneous: The Constitution did not give Congress authority to enact the Indian Child Welfare Act.

Related, from the same author, at the Independence Institute: A Further Response to Prof. Ablavsky on the Indian Commerce Clause.  From the introduction:

An earlier post provided a preliminary response to a law professor named Gregory Ablavsky, who claimed in a legal brief that my 2007 article The Original Understanding of the Indian Commerce Clause was defective scholarship. My preliminary response explained that his criticisms were not based primarily on what I had written, but on his own misrepresentations of what I’d written.

I added that a further response would come after I finished a larger project—an article entitled, The Original Understanding of the Indian Commerce Clause: An Update. The article now has been published and is available here [ed.: see above].

In preparing the Update, my research assistant, Jeremy Sallee, and I examined writings published since I researched my 2007 article. One was Professor Ablavsky’s Beyond the Indian Commerce Clause, published in Yale Law Journal in 2015. We examined some of his footnotes and sources because we wanted to know if his sources might affect our own conclusions.

Unfortunately, we discovered that Beyond the Indian Commerce Clause contained a disturbing number of inaccurate, non-existent, and misleading citations, as well as deceptively-edited quotations. I have prepared a partial list called Cite Checking Professor Ablavsky’s “Beyond the Indian Commerce Clause.” You can read it here (pdf). More on that below.

For an earlier exchange between Professor Natelson and Professor Ablavsky, see here: Gregory Ablavsky versus Rob Natelson on the Indian Commerce Clause.  Professor Ablavsky is of course welcome to respond on this blog.  

Ann Woolhandler: State Separation of Powers and the Federal CourtsMichael Ramsey

Ann Woolhandler (University of Virginia School of Law) has posted State Separation of Powers and the Federal Courts (33 pages) on SSRN.  Here is the abstract:

The issue of state separation of powers generally is not one that the federal courts have had much occasion to address. Recent issues have arisen, however, with respect to states’ use of private parties to enforce state anti-abortion regulations such as Texas’s Senate Bill 8 (S. B. 8), and as to state legislatures’ claims of near-plenary powers over federal elections under the so-called independent state legislature doctrine (ISLD). See Moore v. Harper, cert. granted, Jun. 30, 2022 (No. 21-1271). In addition, revived interest in the nondelegation doctrine, as illustrated in West Virginia v. EPA, raises questions as to the earlier impact of that doctrine. While nondelegation scholarship often focuses on the rare use of the doctrine to strike down statutes conferring powers on federal agencies, the federal courts’ use of separation of powers as to state delegations illustrates the effect of the doctrine in aid of other constitutional rights. This paper provides an account of the federal courts’ treatment of state separation of powers in the past, and then addresses the relevance of this account to current debates about S. B. 8 and ISLD.

Kevin Tobia & Brian Slocum: The Interpretation of LawMichael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy) & Brian G. Slocum (University of the Pacific - McGeorge School of Law) have posted The Interpretation of Law (64 pages) on SSRN.  Here is the abstract:

Courts increasingly presume that law should be interpreted according to what it communicates to an ordinary reader. Textualists view this as a strict requirement, creating a bright line between favored “textual” interpretive canons (reflecting objective linguistic principles) and suspect “substantive” canons (reflecting subjective normative values). This Article defends a novel thesis about this bright line. We argue that some substantive canons are also textual canons. This Article presents the first empirical study of whether ordinary people (N = 1,520) implicitly follow some substantive canons when interpreting legal rules. The study finds that some substantive canons track valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactive application of statutes is usually justified by values like fairness, but it also reflects ordinary readers’ general understanding of the meaning of rules.

This empirically supported theory carries significant practical and theoretical implications, especially for textualists. For example, it offers a novel resolution to long-standing conflict between the famous Chevron doctrine and substantive canons. It also grounds a new critique of textualists’ reliance on non-linguistic canons. More broadly, the results support a call for a linguistic reorientation in legal interpretation. Laws’ words express rules, and text-committed interpreters should carefully consider how ordinary people understand rules, beyond the meanings of individual words or general communications. The “ordinary reader” is assumed to be interpreting law, and judicial interpretation committed to that reader should similarly reflect the interpretation of law.

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

Philip Hamburger on Magistrate Judges Issuing Search WarrantsMichael Ramsey

At The Federalist, Philip Hamburger (Columbia): Can Magistrate Judges Constitutionally Issue Search Warrants Against Trump (Or Anyone Else)?  From the introduction: 

The Mar-a-Lago search warrant is interesting not only because of the high office of the individual whose papers were seized but also because of the low office of the person who signed it. The warrant illustrates the long-standing constitutional anomaly of letting magistrate judges sign search warrants.

Leave aside how you feel about the former president. Leave aside what you think of January 6, 2021. Leave aside whether there was a good reason to issue the warrant. A more basic question is whether the Hon. Bruce Reinhart could constitutionally issue it. 

The problem is that Reinhart is a so-called magistrate judge. Many commentators have focused on his personal history and political leanings, but much more significant is that he is not really a judge. 

To be precise, he is not a judge of a court of the United States. The judicial power of the United States is vested in its courts. In the exercise of this power, judges of those courts can issue search warrants. But a magistrate judge is just an assistant to a court and its judges. Not being a judge of one of the courts of the United States, he cannot constitutionally exercise the judicial power of the United States. That means he cannot issue a search warrant.

The full shift of the judicial power of the United States in criminal cases to magistrate judges has been relatively recent. Only since 1968 has Congress generally authorized persons other than real judges to exercise the judicial power of the United States in trying misdemeanors (although a defendant can still insist on being tried by a real judge when charged with more than a petty offense). In addition, district courts can assign the non-judges “such additional duties as are not inconsistent with the Constitution and laws of the United States.” Only since 1990 have the non-judges been called “magistrate judges.”

Just how little a magistrate judge can be considered a judge is evident from the way he is appointed. Rather than be nominated by the president and confirmed by the Senate—as provided by the Constitution for real judges—a magistrate judge, including the one who signed the Mar-a-Lago warrant, is appointed merely by a majority of the active judges of a district court. He serves for only eight years, he can be removed for cause, and even if not removed, he always must worry that his district court will not reappoint him.

Congress, moreover, can reduce his salary. He therefore is not a judge of the court, but merely one of its servants. Like a law clerk or other assistant, he can help a judge understand the issues underlying the decision to issue a search warrant. But he should not issue it.

And from later on:

At stake is whose judgment matters. The whole point of having judges nominated by the president and confirmed by the Senate is to ensure that the judgment required for the exercise of judicial power will be the judgment of individuals learned in the law—ones carefully chosen to exercise mere judgment, not will.

Such individuals, moreover, are protected in salary and tenure. They need never worry that they will be removed for cause or not reappointed. So the judgment of a real judge makes a real difference. Any binding judicial act that is not merely ministerial must be an exercise of judgment by an actual judge of the courts, not anyone else.

...

The Constitution’s vesting of the judicial power in the courts is important for search warrants. It ensures that at least for federal search warrants, the “probable cause” required by the Fourth Amendment will be ascertained by a judge, not anyone else.

Indeed, search warrants from magistrate judges violate not only the vesting of judicial power in the courts but also the Fourth Amendment. In guaranteeing that search warrants must rest on probable cause, that amendment assumes that probable cause will be found by a judge. Moreover, the issuance of a search warrant is unreasonable when it comes from a non-judge, because he lacks salary and tenure protection and has not gone through the same rigorous selection process as a real judge. The guarantees of probable cause and reasonableness are much diminished when a non-judge can make the determination.

And on the development of the practice:

One might have thought judges would be cautious about predetermining the lawfulness of any question—especially a threat to civil liberties, especially in criminal law, and especially when they have an institutional interest in the outcome. Nonetheless, they have blithely assumed the constitutionality of search warrants issued by magistrate judges.

For example, after Congress authorized the Supreme Court to promulgate the Rules of Criminal Procedure for the District Courts of the United States, the Supreme Court, in 1944, in Rule 41(a), provided that a search warrant may be issued “by a United States commissioner within the district wherein the property sought is located.” What were commissioners are now called “magistrate judges.”

Even today, Congress itself does not generally authorize magistrate judges to issue search warrants, but merely authorizes district courts to assign “additional duties” to these subordinates. It thus leaves each district court to decide whether its magistrate judges can issue search warrants, and district court judges generally take this opportunity.

Why have judges been so willing to assume and even predetermine the lawfulness of search warrants from magistrate judges? One answer is their workload. As the Supreme Court puts it, without magistrate judges, “the work of the federal court system would grind nearly to a halt.” There is some truth to this, but not because of search warrants. They are only part of the burden alleviated by magistrate judges, and it would not crash the system to leave such warrants to real judges.

The workload of district courts is, at least in part, a judicially created problem. Through their own doctrines, judges have sometimes unnecessarily crowded their schedules. To this extent, it befits them to suggest that the judicial workload requires them to subject Americans to search warrants issued by magistrate judges.

For decades, the judges—the real judges—have shut their eyes to the dangers of handing off parts of the judicial power of the United States to subordinates. ...

Kurt Lash: The State Citizenship Clause [Updated with a Comment from Andrew Hyman]Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted The State Citizenship Clause (49 pages) on SSRN.  Here is the abstract:

The first sentence of the Fourteenth Amendment contains not one, but two citizenship clauses. The first defines national citizenship and the second defines state citizenship. Although a significant body of scholarship exists regarding the history and meaning of the former, no prior work has investigated the origins and original understanding of the latter.

Unlike the National Citizenship Clause, the State Citizenship Clause had no analogue in the 1866 Civil Rights Act. The unique language of State Citizenship Clause emerged out of a private Republican Senate Caucus which met to address concerns about the Joint Committee’s proposed Fourteenth Amendment. Post-passage criticism of the 1866 Civil Rights Act had revealed a major flaw in the Act: The statute failed to secure the status of state citizenship and potentially left open a loophole through which states might continue to deny Black Americans equal civil rights. The State Citizenship Clause closed this loophole by securing the status of local citizenship for every resident American citizen, regardless of race. Any state law that denied a local civil right on the basis of race by definition denied that resident their status of equal state citizenship. Throughout the ratification period, proponents of the Fourteenth Amendment repeatedly insisted that the final language of Section One prohibited states from denying equal civil rights to any resident American citizen. This prohibition on racial discrimination was not limited to certain “fundamental” civil rights. It applied to all state level civil rights, no matter how trivial. This history suggests that the original understanding of the Fourteenth Amendment supports decisions like Brown v. Board of Education but does so on the basis of the original understanding of the State Citizenship Clause.

UPDATE:  Andrew Hyman comments:

Professor Lash writes, “The Supreme Court has occasionally recognized this basic principle of equal state citizenship rights, though without recognizing its textual roots in the State Citizenship Clause. See, e.g., The Slaughterhouse Cases, 16 Wall. 36, 80 (1872) (Miller, J.).”  Miller was certainly referring there to the State Citizenship Clause (emphasis added): “One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.”  Miller was saying that the State Citizenship Clause implied nondiscrimination based on whether a citizen was born in a state or instead immigrated to the state, and Miller did not suggest a broader form of equality resulting from the State Citizenship Clause. Indeed, a broader form of equality is difficult to infer from that Clause’s text, beyond entitling more people to Comity Clause rights.

Fortunately, the 14th Amendment also includes the Equal Protection (EP) Clause, but Professor Lash writes that it was only meant to protect “life, liberty and property….[which] would not have been understood as involving emerging public benefits like public schooling.”  Lash acknowledges that that limitation of the EP Clause regarding “life, liberty, and property” was removed from the initial draft of Section One; even if it somehow remained implicit in the EP Clause (I doubt it), “liberty” arguably included freedom to attend public schools especially when education became so much more important in the economy of the twentieth century.  But was there really an EP limitation to “life, liberty, and property”?  Professor Lash quotes Senator Allen Thurman to that effect, but the Thurman quote is from 1875 which was seven years after ratification (and perhaps not coincidentally Thurman was a segregationist and white supremacist).  The word “protection” often had a broader meaning in the period 1866-1868, for example in an 1867 speech by James Brisbin quoted later that year on the Senate floor by Senator Charles Sumner: “As we claim allegiance from the blacks, we are bound to accord them full protection in all their rights as citizens, both civil and political.” Other speakers limited “protection” to civil but not political rights, but even then the scope would be broader than only rights of “life, liberty, and property.” As Professor Lash writes, “Americans in 1866 understood ‘civil rights’ to include any benefit conferred upon state residents on the basis of their local citizenship.”

Lawrence Lessig on the Slaughterhouse CasesEarl Maltz

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

In Privileges or Immunities:  A Judicially Restrained and Originalist Understanding [ed.: noted on this blog here], Lawrence Lessig both discusses the original meaning of the Fourteenth Amendment and challenges the traditional reading of the majority opinion in The Slaughterhouse Cases. Professor Lessig begins by asserting that, if given its original meaning, section one of the Fourteenth Amendment would be interpreted to provide Congress with a wide-ranging power to determine the scope of the protections established by the Privileges or Immunities Clause.  But in addition, he contends that the majority opinion in Slaughterhouse adopted a similar reading of that clause.  In particular, Lessig claims that the Slaughterhouse majority was motivated by a desire to limit the role of the judiciary in reviewing the constitutionality of state legislation while at the same time recognizing the power of Congress “fill out the contours of the ‘privileges or immunities of citizens of the United States.’”

In fact, however, nothing could be further from the truth.  In the majority opinion, Justice Samuel Miller did indeed complain that an expansive reading of the Privileges or Immunities Clause would, in his words, “constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights.”  However, Miller placed even greater emphasis on the impact that an expansive vision of the import of the clause would have on the scope of congressional authority, asserting that the broad interpretation advocated by the dissenting justices would  “bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States” and would also allow Congress “to pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions.”  Thus, Miller concluded by asserting that the Privileges or Immunities Clause should be interpreted narrowly in order to avoid “radically chang[ing] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”

These passages belie the claim that the majority opinion in Slaughterhouse was designed to give Congress broad authority to define the nature of the “privileges or immunities of citizens of the United States” for constitutional purposes.  Instead, Justice Miller clearly intended to greatly limit the scope of the powers granted to Congress by the Fourteenth Amendment and, by implication at least, to empower the Court to strike down statutes that exceeded those limitations.  Of course, one might still argue that the interpretation of the Privileges or Immunities Clause envisioned by Professor Lessig is consistent with the original meaning of the Fourteenth Amendment.  However, one thing is crystal clear.  The majority in Slaughterhouse did not embrace any such theory.

Maureen Brady: Uses of Convention History in State Constitutional LawMichael Ramsey

Maureen E. Brady (Harvard Law School) has posted Uses of Convention History in State Constitutional Law (Wisconsin Law Review, forthcoming) (27 pages) on SSRN.  Here is the abstract:

For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those records. This leaves a question: if scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent might the same sorts of concerns plague the records in the states?

Now is an opportune time to consider the production and use of the historical evidence surrounding state constitutions for at least three reasons. First, while much scholarly interest in uses of historical material focuses on originalism as deployed in the Supreme Court, more recent work is starting to engage originalism and uses of history in state and lower federal forums. Second, the Supreme Court’s turn in recent federal constitutional decisions toward “history” and “tradition” may mean more lawyers turn to state constitutions and associated records for evidence of historical understandings of rights and their limits. And lastly, recent progressive losses in the Supreme Court seem likely to reinvigorate interest in pursuing state constitutional causes of action to protect rights not recognized at the federal level, a move that may likewise trigger renewed interest in state constitutional sources.

This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters. Although hardly the most frequent way that state constitutions are changed, state convention evidence can be helpfully viewed through the critical lens that has already been applied to records of the federal Constitutional Convention. In this brief work, I will illustrate some of the problems and possibilities that this material can pose for interpreters of state constitutions, informed by the critiques that scholars have made of convention evidence in the federal context.

Part I begins by examining the extent to which the evidentiary weaknesses identified by federal constitutional scholars apply to material produced in conjunction with state constitutional conventions. Part II traces the history of state-court reliance on convention evidence, examining its emergence as an interpretive aid in the first half of the nineteenth century and its acceptance in an increasing number of judicial decisions. Given the frequency with which courts turn to convention evidence, Part III identifies some puzzles and directions for further research on the uses of historical material to shed light on the meaning of state constitutional provisions.

Originalist Perspectives on Bolling v. SharpeMichael Ramsey

At Ius & Iustitium, Cass Sunstein (Harvard): The Enigma of Bolling v. Sharpe.  From the introduction (footnotes omitted): 

For constitutional theory, Bolling v. Sharpe has always been a bit of a puzzle, but it is suddenly much more than that. In Bolling, the Supreme Court held that the Due Process Clause of the Fifth Amendment forbids Congress from segregating the schools in the District of Columbia. That holding is important in itself. Actually, it is much more than important in itself, because it is the source of the broad idea that the national government may not engage in racial discrimination. But Bolling is important as the foundation of an even broader idea, which is that principles of equal protection generally apply to the national government. Because the Equal Protection Clause can be found in the Fourteenth Amendment, and not the Fifth, we have to do considerable work to generate a theory to make sense of Bolling. In Bolling, the Court itself offered some of the essential ingredients of such a theory (as we shall see).

In Dobbs v. Jackson Women’s Health Center, the Court cut the legs out from under Bolling. In essence, the Court held that to qualify for protection under the Due Process Clause of the Fourteenth Amendment, a litigant must show that the relevant right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” It is exceedingly hard to show that a right to be free from segregation qualifies under this test – not least because segregation was required by the Black Codes, enacted throughout the South in the 1860s, and because the Supreme Court upheld segregation in 1896 and did not strike it down until 1954 (under the Equal Protection Clause). Racial segregation was both practice and permissible for about a century. Insofar as we are speaking of the Due Process Clause of the Fifth Amendment, the idea of a right to be free from racial segregation stands, under the Dobbs approach, on very shaky ground. In fact it is worse than that. For the approach in Bolling, Dobbs is an earthquake. ...

Despite the alarmed tone and extensive discussion, I don't think there's really much new here.  Originalists have long understood (and been worried by) the fact that Bolling is a tenuous case as a matter of original meaning.  In addition to the problems Professor Sunstein notes, I think more serious ones are (1) I don't know of any evidence that anyone in 1791 might have thought the 5th Amendment's due process clause contained a substantive guarantee of equality, and (2) if the due process protection contains a guarantee of equal treatment, then the equal protection clause (assuming it is a guarantee of equal treatment, as modern law understands it) is superfluous.

But originalists are not without responses.  There are at least four:

(1) Bolling was wrongly decided and should be overruled.  If that outcome is morally intolerable (and I agree with Professor Sunstein that it should be) then the Constitution can be amended to change it, just as the Thirteenth Amendment changed the original Constitution's morally intolerable failure to proscribe slavery.  Judges don't fix morally intolerable parts of the Constitution; amendments do.

(2)  Bolling would come out the other way on strictly originalist grounds, but originalism should accept an "escape clause" by which judges can refuse to enforce morally intolerable results in extreme cases.  The acceptance of an escape clause in extreme cases does not undermine the use of originalism in non-extreme cases.  (Justice Scalia acknowledged this possibility in his famous comment about being a "faint-hearted originalist"). In similar vein, even the strictest view of stare decisis would probably allow precedent to be overruled in extreme cases (such as Plessy v. Ferguson); that in itself does not undermine a general rule of strict adherence to precedent. (Note, though, that this approach indicates that judges in the antebellum period should have read the Constitution to invalidate slavery even though it didn't; I'm not sure how many people actually hold that view).

(3) Bolling was wrongly decided at the time it was decided, but it should not be overturned now as a matter of stare decisis.  It is well-integrated into the framework of U.S. law, is not seriously contested on moral or policy grounds by anyone, and does not create distortions or difficulty of administration.  (This is roughly the way Justice Scalia looked at it).  Further, borrowing from John McGinnis and Mike Rappaport, it's very likely that if Bolling had been decided the other way, that result would have been overturned by constitutional amendment.  Thus overturning it now, and forcing an unnecessary amendment process, would be a pointless exercise.

(4) Bolling was wrongly reasoned but its result can be reached on other originalist grounds.  Professor Sunstein alludes to this position, citing Ryan Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev 493 (2013) (arguing that the requirement of equal treatment by the federal government comes from the Fourteenth Amendment's citizenship clause).  As Professor Sunstein does not mention, Justice Thomas endorsed this position in a long concurrence in United States v. Vaello Madero, relying heavily on Professor Williams' article.  

I don't have an opinion on which is best.  I have a very high degree of confidence that most current originalist-oriented Justices would pick (3), with one or two picking (4) and none picking (1).  So it's really an academic question.  But I like those.

(Via Jonathan Adler at Volokh Conspiracy, who encourages originalists' thoughts on the matter).

Tara Leigh Grove: Testing Textualism’s 'Ordinary Meaning'Michael Ramsey

Tara Leigh Grove (University of Texas School of Law) has posted Testing Textualism’s 'Ordinary Meaning' (George Washington Law Review, Vol. 90, No. 5, 2022) (36 pages) on SSRN.  Here is the abstract:

This Foreword to an annual issue on Administrative Law explores the concept of “ordinary meaning” in statutory interpretation. The Foreword challenges two central assumptions underlying some recent empirical scholarship: first, that “ordinary meaning” should be viewed primarily as an empirical concept, and, second, that textualists themselves view “ordinary meaning” in empirical terms. As the Foreword shows, “ordinary meaning” can be understood as a legal concept, not simply as an empirical fact. Moreover, the Foreword demonstrates that many prominent textualists have long treated “ordinary meaning” as a legal concept—one that must be elucidated through the understanding of a hypothetical reasonable reader (although, as the Foreword discusses, textualists debate how well-informed such a reasonable reader should be). This analysis complicates recent efforts to test empirically whether textualists have reached the “right answer” in specific cases. For many textualists, like many other interpretive theorists, statutory analysis is primarily a normative, not an empirical, enterprise.

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

May the Senate Properly Try a Former Officer Who Was Impeached by the House While Still in Office?David Weisberg

Although one fervently hopes that the timeliness of the issue has very much receded, there recently has been more commentary on impeachment.  Prof. Michael McConnell has written an article contending that, if a president, vice-president, or civil officer is properly impeached by the House (whatever that requires) while still in office, that person may properly be tried by the Senate even after he or she has left office.  Andrew Hyman dissents in a recent post, and I join him.  (I previously expressed my own opinion here.)  But I’d like to add two additional points to the mix.

First, Prof. McConnell writes:

To be sure, sitting officers convicted on impeachment must be removed, but any person convicted on impeachment may be disqualified from future office. There is no textual or logical reason to assume that only person[s] who can be removed can be tried and convicted.

With respect, I disagree with that conclusion.  There is, I think, strong textual support for the view Prof. McConnell rejects. 

In relevant part, Art. I, Sec. 3, Cl. 7 recites:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States[.] 

I agree completely with Prof. McConnell that “sitting officers convicted on impeachment must be removed.”  But, with that understanding, one would expect that, if former officers who had been impeached while in office could properly be tried in the Senate when out of office, the clause would read:

Judgment … shall not extend further than to removal … , or disqualification … , or both[.]

With those very minor textual modifications, it would have been made manifest that disqualification may properly be imposed without removal, that is, that a former officer may be disqualified.  But that is not the actual text.  The actual text, which uses the word “and,” implies that disqualification must always be coupled with removal; it is not a stand-alone punishment.   

The second point turns on a certain symmetry between impeachment in the Senate and disciplinary proceedings in Congress.  I assume everyone agrees that members of the Senate and the House of Representatives may not be impeached under Art. I, Sec. 2, Cl. 5.  They are instead subject to discipline by the body in which they serve pursuant to Art. I, Sec. 5, Cl. 2, which recites:   

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.  

It is indisputable that neither House may punish a non-member.  The clause explicitly provides that each House may punish “its Members”—not non-members who formerly were members.  It also does not provide that a former member may be punished if disciplinary proceedings had been formally commenced before he or she became a non-member.  I’m no historian, but I’m not aware of any precedent for either House purporting to punish a former member. 

There is what I consider a highly significant similarity between disciplinary proceedings in the Houses of Congress and discipline via impeachment in the House and trial in the Senate: A two-thirds vote is required both in either congressional body to expel a member and also in the Senate to remove a sitting president, vice-president, or civil officer.  It is difficult to imagine that the necessity of a two-thirds vote in both proceedings is a mere coincidence.

It is true that the Senate may impose disqualification, and there is no analogous punishment for expelled members of Congress.  So, the symmetry between the two proceedings is not perfect.  The lack of perfect symmetry is not, I would think, a reason to embrace a position that exacerbates asymmetry. 

I personally can think of no persuasive reason why former members of Congress should not be subject to further discipline, while former presidents, vice-presidents, and civil officers in the executive and judicial branches should continue to be subject to further discipline.  I therefore believe that, because former members of Congress are not subject to congressional discipline (even if disciplinary proceedings against them had been formally commenced before leaving Congress), the better view is that former presidents, vice-presidents, and civil officers in the executive and judicial branches should not be subject to trial in the Senate (even if they had been formally impeached before leaving office).    

Ilya Somin on the Major Questions DoctrineMichael Ramsey

At Volokh Conspiracy, Ilya Somin: Originalism and the "Major Questions" Doctrine (commenting on the exchange on this blog between me and Mike Rappaport).  After summarizing the competing posts, he continues:

Both Mikes make good points. But I largely agree with Ramsey. Indeed, I would go further. Even if nondelegation is justiciable, at least in some cases, the major questions doctrine can be justified as an additional tool for enforcing it, in situations where direct enforcement is infeasible for some reason (either because it is intrinsically impossible, or because judges just aren't willing to do it). In this way, MQD, like other "clear statement" rules can be seen as a second-best tool for enforcing constitutional constraints on government power that, in an ideal world, would get stronger protection.

I think Rappaport fails to effectively respond to this rationale for MQD. Even if it is not the ideal rule, it may be better than the available alternatives in a world where nondelegation is inadequately enforced.

I would add that, while both Mikes implicitly assume that constitutional originalists must also apply originalist principles to statutory interpretation, I am not convinced that is necessarily true. It may be so for those I refer to as "intrinsic originalists," who believe that originalism is inherently the only legitimate method of legal interpretation. But this is not true for what I call "instrumental originalists" - those whose support for originalism is based on the view that originalism leads to better consequences than other methodologies would. An instrumental originalist might conclude that, while constitutional originalism leads to better consequences than other constitutional theories, statutory originalism isn't necessarily superior in the same way to all of its rivals.

I agree with the last point in theory.  But I see the main instrumentalist reason for preferring constitutional originalism to be rule of law values, which also supports statutory textualism/originalism.

Drury Stevenson: Revisiting the Original Congressional Debates about the Second AmendmentMichael Ramsey

Drury D. Stevenson (South Texas College of Law Houston) has posted Revisiting the Original Congressional Debates about the Second Amendment (55 pages) on SSRN.  Here is the abstract:

Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original Congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the Congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original Congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.

Lawrence Lessig on the Privileges or Immunities ClauseMichael Ramsey

Lawrence Lessig (Harvard Law School) has posted Privileges or Immunities: A Judicially Restrained and Originalist Understanding (29 pages) on SSRN.  Here is the abstract:

Conservative constitutionalism was born in a practice of judicial restraint, informed by originalism as its theory of interpretation. Dobbs is an obvious implication of both. But building on the work of Niko Bowie, this essay argues that those same principles should entail Congress's 14th Amendment power, under the "privileges or immunities clause," to determine federal privileges or immunities — including the rights recognized in Roe, and a power to regulate the scope of the 'right to bear arms.' Such an understanding makes sense of the original meaning of "privileges or immunities" as well as The Slaughterhouse Cases, and it affirms a principle of judicial restraint. The essay ends with recommendations about how Congress might best reassert its 14th Amendment authority and with a call for less partial originalism in the interpretation of the Civil War Amendments especially.

William Baude & Stephen Sachs on Adrian Vermeule's “Common Good Constitutionalism”Michael Ramsey

William Baude (University of Chicago - Law School) and Stephen E. Sachs (Harvard Law School) have posted The "Common-Good" Manifesto (Harvard Law Review, forthcoming) (48 pages) on SSRN.  Here is the abstract:

In “Common Good Constitutionalism,” Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor.

Adrian Vermeule responds here: The Bourbons of Jurisprudence.  Professors Baude and Sachs have a further response here.

Lorianne Updike Toler & Robert Capodilupo: The Constraint of HistoryMichael Ramsey

Lorianne Updike Toler (Information Society Project, Yale Law School; NIU College of Law) & Robert Capodilupo (Yale Law School JD candidate '23) have posted The Constraint of History (65 pages) on SSRN.  Here is the abstract:

Accepted wisdom dictates that history does not constrain. It is no more than a tool in the judicial kit that legitimizes legal outcomes pre-determined by policy. Recent studies have confirmed this state of play, providing “proof” for the cynic and impetus for history’s apologists to fashion new theories justifying its use in constitutional interpretation.

Yet this study of 338 cases containing 601 references to Constitutional Convention records provides evidence that history can constrain judicial interpretation of the Constitution. As proof of concept, this study tested whether Supreme Court Justices’ use of primary and secondary sources when referencing the Constitutional Convention caused them, on the discrete level, to vote against political preferences. Consistently and significantly, the Justices were more likely to vote against their policy preferences when using secondary sources of the Constitutional Convention’s history or when adding primary to secondary sources. This robust evidence suggests that history can constrain constitutional interpretation.

This finding casts serious doubt on the rigor of previous studies. It also anticipates a major shift in constitutional theory. If history can constrain after all, using it as a methodology for constitutional interpretation is viable and credible. Constitutional theorists need no longer seek other justifications for history’s methodology, and resources should be sought by bench and bar to pursue the best history for constitutional interpretation.

A Comment on Michael McConnell's “Impeachment and Trial After Officials Leave Office”Andrew Hyman

There is a lot to admire in Professor McConnell’s new manuscript on impeachment which was recently mentioned on this blog.  As scholarly and meticulous as it is, though, I would like to point out what seems to me a significant counterargument that the manuscript does not address.

First, a point of agreement, I agree 100% with this statement by Professor McConnell about Article II, Section 4:

Article II provides for impeachment of “the President, the Vice President, and other civil officers.”  To read this provision as allowing impeachment of ex-officers requires either that we interpret the term “civil officers” as embracing former officers, which is not what those words ordinarily mean, or that we treat the list of impeachable persons as non-exclusive, which would have extraordinary consequences inconsistent with both the drafting history and the weight of subsequent practice.

Article II, Section 4 says the following, of course:

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.

But, it is perplexing to me why Professor McConnell thinks that only the impeachment accusation --- and not the conviction --- applies exclusively to incumbent officeholders; conviction and impeachment are treated textually in much the same way in this blockquote, so it seems counterintuitive to think that one can apply to ex-officers while the other cannot.  This conclusion of mine gains added traction if we plug the definition of impeachment (from McConnell’s footnote 21) into Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on accusation and prosecution for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

If the accusation must be preferred against an incumbent officer, then why not the prosecution too?  Professor McConnell is applying Article II, Section 4 very differently as between impeachment and conviction, and also very differently as between the two stages of impeachment (i.e. accusation and prosecution).  This all seems counterintuitive, and it’s much more likely that they should all be limited to incumbent office-holders or none of them should; there’s no textual reason to single out the accusation alone, for special treatment in this regard.  If I am reading Article II, Section 4 correctly, then the House loses its power to continue with an impeachment if and when the impeached person leaves office, just as though the person died.  The charges must be dropped, and the House managers go home.  Although the Senate does have power to try all impeachments, there is no impeachment left to try, if the charges are dropped.

People nowadays often speak of a person being impeached when the House passes an impeachment resolution, or when the articles of impeachment are delivered to the Senate, but that is not the original meaning of impeachment. Professor McConnell acknowledges this in his footnote 21 where impeachment is described as an extended process rather than a discrete event.  This is confirmed yet again by Federalist 65, where Alexander Hamilton repeatedly refers to the accusation not as an “impeachment” but rather as “preferring the impeachment.”  Impeaching someone and preferring an impeachment were not the same thing in the 1780s, but that is how Professor McConnell treats them (except in his footnote 21).

Policy-wise, I don’t really care.  This type of situation rarely occurs.  Although Professor McConnell mentions the suspicious pardons given by President Clinton at the end of his second term, Clinton was already term-limited, so any disqualification would have only prevented him from holding lower-level office, which ex-Presidents have very rarely done (I think President Truman put ex-President Hoover to work in Europe after WWII). Professor McConnell also mentions President G.W. Bush, but he was term-limited too.  Immunity from further impeachment also seems like a useful incentive for sketchy officials to hurry up and leave their offices, as Professor Michael Ramsey has pointed out at this blog, kind of like a plea bargain.

Michael L. Smith on Historical TraditionMichael Ramsey

Michael L. Smith (University of Idaho College of Law) has posted Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law (38 pages) on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. Rather than balancing government interests against the scope of firearms restrictions through strict or intermediate scrutiny, the Bruen Court held that a “historical tradition” approach was required. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.”

At first glance, the historical tradition approach may seem desirable. One might agree with the Bruen Court’s assertion that historical legal analysis is easier than the alternative empirical analysis of gun restrictions and their impacts. And the historical tradition approach seems objective, requiring courts to determine historical legal facts rather than engaging in goal-oriented analysis of the desirability and effectiveness of firearms restrictions.

These first impressions are mistaken. The Bruen Court minimizes the difficulty of the historical tradition approach. And, through its vague and virtually nonexistent guidance on drawing historical analogies, the Court leaves numerous avenues for judges and Justices to inject their preferences as they weigh historical evidence and determine whether sufficient evidence exists to establish a historical tradition. This Article examines the Bruen Court’s statement of the historical tradition approach and reveals multiple instances in which the Bruen Court engaged in shoddy historical analysis and took an inconsistent approach to historic evidence in order to arrive at a desired result. In light of the complexity and malleability of the historical tradition approach, the Court will likely continue to twist this approach to achieve its desired ends—a phenomenon that will likely be magnified in the lower courts and in future decisions in Second Amendment and other constitutional cases.

RELATED: At the author's blog (Michael Smith's Law Blog): Choosing History.  From the introduction: 

Will Baude has written a column in the Washington Post, entitled Of Course the Supreme Court Needs to Use History. The Question is How. [Ed.: noted here.]

Baude discusses the Supreme Court's use of history in its most recent term. He argues that using history is unavoidable:

History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

This use of history, as Baude notes, led to some recent dramatic decisions. In Dobbs v. Jackson Women's Health Organization, the Court ruled that there was no constitutional right to abortion, overturning Roe v. Wade, and causing abortion becoming illegal in numerous states due to trigger laws. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court overturned a New York statutory scheme that had been in place for more than a century that required people to prove good cause in order to obtain a license to carry concealed firearms.

In Bruen, the Court first held (after about a page of analysis with no historical discussion) that the Second Amendment protected a right to carry firearms in public--extending the scope of the Second Amendment's protection beyond the scope of the home. The Court then spent most of its opinion applying a "historical tradition" approach to the constitutional interpretation. In Bruen, this meant that the government could restrict the Second Amendment right to carry firearms only if it could show a historical tradition of analogous restrictions on the right to carry firearms in public. The Court considered a host of laws, cases, and commentary, ranging from English law and common law, to colonial-era restrictions, to laws at the founding, during reconstruction, and beyond. Laws that happened to support broad restrictions were outliers, the Court argued. Old English authorities, like the Statute of Northampton, were outdated. Many of the founding-era and reconstruction-era restrictions were too narrow to be analogous--they restricted carrying firearms for certain purposes only, like causing terror and disruption. By choosing what historical laws were analogous, the Court was able to shape the historic record to fit its desired outcome: that there was no tradition of restricting the carrying of firearms. New York's law therefore had to go.

 

The next day, in Dobbs, the Court engaged in similar analysis to determine whether there was a historical tradition of permitting abortion. No such tradition existed, the Court claimed, citing "English cases dating all the way back to the 13th century" (despite its earlier discrediting of the Statute of Northampton as too old) and citing a host of historic restrictions banning pre-quickening abortion (that is, abortion before movement of the fetus could be detected--often at a point between the 16th and 18th week of pregnancy). These pre-quickening restrictions--restrictions that prohibited abortion in certain circumstances--are similar to many of the historic restrictions on carrying firearms that the Court rejected in Bruen--gun restrictions only banned carrying firearms in certain circumstances. In Dobbs, however, the Court cited these cases to support its conclusion that there was no historic recognition of any right to an abortion. The Court argued that just because pre-quickening abortion "was not itself considered homicide, it does not follow that abortion was permissible at common law--much less that abortion was a legal right." (Dobbs, p. 2250). Using this logic (logic that was notably absent in Bruen) The Dobbs Court cited partial abortion restrictions as evidence of a lack of a historical tradition of recognizing abortion rights. 

This closer look at these opinions reveals that the Court is not so much "doing" or "using" history as Baude suggests, but "choosing" history. Looking up historical evidence and parsing out historic laws and their development is a small, and seemingly insignificant part of the Court's analysis. The real work happens when the Court decides whether evidence is analogous to a present claimed right or restriction. 

Against the Major Questions DoctrineMike Rappaport

In a recent post, Mike Ramsey attempts to provide an originalist defense of the Major Questions Doctrine (MQD).  While it is always risky to disagree with Mike about originalism, I feel compelled to voice my contrary views.

Before discussing Mike’s view, let me state my basic objection to the MQD: It neither enforces the Constitution nor applies ordinary methods of statutory interpretation.  Thus, it seems like a made up interpretive method for achieving a change in the law that the majority desires.

Mike’s defense is based on his view that “The Court has a common and longstanding practice of developing clear statement rules.”  Even assuming that is true, I do not think that a longstanding practice establishes that something is originalist.  For quite some time, at least until recent terms, the Supreme Court has been interpreting the Constitution and even statutes from an nonoriginalist perspective, but that does not make such nonoriginalism originalist.  That Justice O’Connor announced a federalism canon in 1991 (or the Court applied similar ones in other cases from that time period) hardly provides support for the originalist bona fides of the canon.

Mike claims that this practice goes back to at least Chief Justice Marshall in the Charming Betsy (1804) and Talbott v. Seemen (1801), which required a clear statement before a statute is read to violate international law.  But I am skeptical.  Marshall may have applied the rule but did he “develop” it as Mike claims?  At that time, the law often employed interpretive rules that sought to make different bodies of law cohere with one another.  For example, statutes were interpreted in accord with the common law.  I would be surprised if such a rule did not also apply to statutes and international law.  

This is a key point.  There is a strong argument for applying existing interpretive rules to statutes enacted in the shadow of such rules.  This is original methods for statutory interpretation.  It is quite another thing to make up interpretive rules after the enactment.  That is nonoriginalism.  

Another justification for the Charming Betsy rule is that it accords with the presumed intent of the Congress.  That justification won’t work for the MQD, since many of these statutes were passed during a period of broad delegation to agencies, when Congress appeared to desire broad delegations and certainly understood delegations would be read in that way.  Mike doubts that the Charming Betsy rule can be justified as the presumed intent of Congress.  But I am not so sure of that either.  While Mike may be right that the present day Congress may not care so much about modern international law, I am less certain that the early Congress would have been willing to ignore international law when the U.S. was a much weaker nation and much more beholden to international law protections.  So once again the Charming Betsy rule seems different than making up interpretive rules.     

To be frank, I wish the MQD could be justified.  It would certainly make things easier from the perspective of limiting delegations.  But “wishing does not make it so.” 

Alex Reinert: Qualified Immunity's Flawed FoundationMichael Ramsey

Alex Reinert (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Qualified Immunity's Flawed Foundation (California Law Review, forthcoming) (89 pages) on SSRN.  Here is the abstract:

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine – fundamental errors that have never before been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction – namely that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common-law immunity defenses. As this Article shows, the Derogation Canon has no appropriate role to play in interpreting Section 1983. Its viability has been continuously called into question for more than a century. Even when it has been applied, the canon has been used as a reason to disfavor displacement of common-law claims, not common-law defenses. And it is always operating in tension with a contrary canon that remedial statutes, like Section 1983, should be given a broad reading.

This Article also identifies a second significant failing in the Court’s qualified immunity law. For even if the Derogation Canon were valid, the Reconstruction Congress that passed Section 1983 meant to explicitly displace common-law protections. Most critically, scholars and courts have overlooked the originally-enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilation of federal law in 1874. This Article is the first to unearth the lost text of Section 1983 and demonstrate its implications.

Taken together, these twin insights show that the problems with the Court’s immunity doctrine run deeper than prior scholarly criticism has imagined. Much of current qualified immunity scholarship has addressed, in compelling fashion, how the Court has taken immunity doctrine too far from its common-law origins. But this Article shows that qualified immunity is flawed from the ground up. In other words, the problem with current qualified immunity doctrine is not just that it departs from the common law immunity that existed in 1871. The problem is that the Court has failed to grapple with the strong arguments that no immunity doctrine at all should apply in Section 1983 actions.

(Thanks to Alan Beck for the pointer.)

Ex-Officials and the Espionage Act [Updated]Andrew Hyman

On the day after it happened, I wrote a blog post here about The FBI Raid on Ex-President Trump.  Since then, the search warrant issued by the magistrate judge has been released, along with a list of items seized.  The warrant relies upon the following three named statutes: 18 U.S.C. §§ 793, 2071 , and 1519.  Prior to release of this information, the statutory grounds for the search were not as clear as they are now.  

 

The pertinent part of that first statute is probably 18 U.S.C § 793(f), which dates back to the Espionage Act of 1917.  This was the same law that FBI Director James Comey decided in July of 2016 did not apply against former Secretary of State Hillary Clinton based on his argument that she had been "extremely careless" instead of "grossly negligent," which was a doubtful distinction from an originalist point of view.  Comey elaborated:

 

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.

 

Trump seems better situated than Clinton, in that he was in charge of classification and declassification when the items in question were removed, as I discussed in my blog post earlier this month.  I do not see much of a distinction between being grossly negligent and extremely careless from an originalist point of view, and so I would not suggest that Trump was the latter instead of the former, but being grossly negligent with documents is not enough to violate the Espionage Act.  The early history of the Espionage Act should give pause to anyone who might want to stretch it in the name of justice.  Consider this passage by Professor Geoffrey Stone:

 

John Lord O'Brian, the Head of the War Emergency Division of the Department of Justice, observed shortly after [WWI] ended that "immense pressure" was "brought to bear throughout the war on the Department of Justice in all parts of the country for indiscriminate prosecution" of dissenters and for "wholesale repression and restraint of public opinion." It was, he added, in this "atmosphere" of passion, patriotism, and clamor that the laws “affecting 'free speech' received the severest test thus far placed upon them in our history." The Department of Justice invoked the Espionage Act of 1917 to prosecute more than two thousand dissenters during the war for allegedly disloyal, seditious, or incendiary speech.

 

Professor Stone elaborates: "As the congressional debate suggests, the legislation, as enacted, was not a broadside attack on all criticism of the war. It was, rather, a carefully considered enactment designed to deal with very specific military concerns."  In other words, had the Department of Justice stuck with that original meaning, the nation could have been spared great trauma.   There’s little doubt that DOJ is under great pressure now to prosecute Trump under the Espionage Act, just like DOJ was under pressure to prosecute under that Act during WWI, and again depart from the original meaning. Consider the text of § 793(f) of the Espionage Act (emphasis added):

 

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

 

Shall be fined under this title or imprisoned not more than ten years, or both.

 

Donald Trump never had a superior officer, and so § 793(f)(2) clearly cannot apply. Moreover, § 793(f)(1) apparently does not apply either, because it prohibits removal from a proper place, but not storage in an improper place, and when Trump removed it he was president and had considerable discretion to determine whether he was moving the material from a proper place to an improper place.  All of this on top of the fact that Trump was in charge of declassification when the documents were removed from the White House. Lest I be misunderstood, I do not think a proper place in 2025 for this ex-president would be in the White House, but it may well be that this FBI raid and huge attendant controversy will end up bringing that about.

 

UPDATE by Andrew Hyman: On August 18, 2022, a document was unsealed indicating that the part of the Espionage Act relied upon by the FBI is not 18 USC 793(f) as I previously assumed in this blog post, but rather 18 USC 793(d) or 18 USC 793(e) which both address "Willful retention of national defense information." Subsection “d” involves retention of material by a person who lawfully possesses it and receives a demand for its return, whereas subsection “e” involves retention of material by a person who does not lawfully possess it.  I have no idea whether the government means to rely upon subsection “d” or instead subsection “e” so I won’t guess, but I will note that both of these subsections require a determination as to whether the documents include “information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation….”  It seems obvious from the context that this determination depends on various factors such as: (1) whether the possessor intended to communicate the information to recipients who might misuse it to harm the national defense, (2) what security precautions the possessor has taken, and (3) whether the information was ever formally or informally declassified by the possessor.  I have not heard anything about any intent to communicate this information (factor 1), nor anything to suggest that any of the security precautions suggested by the FBI were ignored (factor 2), and I've already explained that an incumbent president has inherent declassification authority (factor 3).  More information will likely be unsealed in this matter, so there’s no point in speculating.