02/16/2025

John Bessler: The Forgotten Origins of the "Cruel and Unusual Punishments" Prohibition
Michael Ramsey

John D. Bessler (University of Baltimore School of Law) has posted Lost and Found: The Forgotten Origins of the "Cruel and Unusual Punishments" Prohibition (Br. J. Amer. Legal Studies, forthcoming 2025) (171 pages) on SSRN.  Here is the abstract:

The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment’s prohibition against “cruel and unusual punishments” to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II’s reign, “illegal and cruel punishments” had been “inflicted,” with its tenth clause then declaring in hortatory fashion: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions against excessive bail and excessive fines and the final phrase—“nor cruel and unusual punishments inflicted”—were later incorporated into the Virginia Declaration of Rights (1776), various state constitutions, and the U.S. Constitution’s Eighth Amendment. One legal scholar, Anthony Granucci, once described the wording of the English bar on “cruel and unusual punishments” as the product of “chance and sloppy draftsmanship,” concluding that American lawmakers, in adopting the Eighth Amendment, misinterpreted “the intent of the drafters of the English Bill of Rights.” The Eighth Amendment famously reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the “cruel and unusual punishments” language, with Justice Thurgood Marshall, relying on Granucci’s Eighth Amendment scholarship, observing that the use of “unusual” in the English Declaration of Rights “appears to be inadvertent.” This Article demonstrates that the conventional account of the origins of the “cruel and unusual punishments” phraseology—spelled “cruell and unusuall punishments” in some early English sources—is woefully incomplete. The standard account of how that terminology first emerged during the Revolution of 1688–1689, popularly known as the “Glorious Revolution,” fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology. Those usages stretch back as far as the early 1600s, during the reign of King James I, though they initially appear in non-legal contexts (i.e., in a history of Venice translated from French into English and published in 1612; in English courtier and poet George Wither’s satire, Abuses Stript, and Whipt, first published in the early 1610s; and in 1642 Irish Catholic Remonstrances from Ulster following an Irish rising in 1641). Because of the terminology’s prior appearances in those places, the use of the cruel and unusual punishments phraseology in the English Declaration of Rights was almost certainly neither inadvertent nor the product of sloppy drafting.

02/15/2025

A Debate on the Original Meaning of Birthright Citizenship [Updated]
Michael Ramsey

At Law & Liberty, Amy Swearer (Edwin Meese III Center for Legal and Judicial Studies) and I debate the original meaning of birthright citizenship:

The Originalist Basis of Birthright Citizenship - Originalism requires extending birthright citizenship to all people born in the United States regardless of the status of their parents, by Michael D. Ramsey

The Forgotten Meaning of the Citizenship Clause - Universal birthright citizenship was never the original intent, by Amy Swearer

Of course, the titles overstate slightly.  Everyone agrees that children of diplomats and others with diplomatic immunity, as well as children of those serving in foreign armies and -- at least as it stood in the nineteenth-century, members of most Native American tribes -- were excluded from constitutional birthright citizenship by the phrase "subject to the jurisdiction."  The question is whether anyone else was excluded.  My argument is that no one else was excluded, because all other persons born in the United States are subject to its jurisdiction (meaning subject to its lawmaking and law execution authority).

For those who want even more (!), there's another 100 or so pages of this debate in my article Originalism and Birthright Citizenship, 109 Georgetown L.J. 405 (2020) and Amy Swearer's article Subject to the [Complete] Jurisdiction Thereof: Salvaging the Original Meaning of the Citizenship Clause, 24 Tex. Rev. of L. & Pol. 135 (2020).

UPDATE:  Everyone wants in on the debate!  Randy Barnett and Ilan Wurman have this op-ed in the New York Times: Trump Might Have a Case on Birthright Citizenship. (Paywalled, but Ilya Somin has a summary and strong criticism here).  Among Professor Somin's counterpoints:

There are several flaws in Barnett and Wurman's "allegiance-for-protection" theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren't part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But  the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn't qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.

Agreed.  But I would also say more fundamentally the problem with the Barnett-Wurman theory is that it doesn't deal with the actual text of the Constitution.  That is, it doesn't offer much direct evidence on the original meaning of the phrase "subject to the jurisdiction."

And Evan Bernick has this essay at the LPE [Law and Political Economy] Project's blog: The Anti-Constitutional Attack on Birthright Citizenship.  From the introduction:

“All persons born in the United States … are citizens of the United States,” so long as they are “subject to the jurisdiction thereof.” Are the children of undocumented immigrants and temporary visitors—people who can be sued, arrested, prosecuted, detained, and deported—“subject to the jurisdiction” of the United States? If it seems obvious that they are, your intuition is correct. Only by incorporating the kinds of textually unstated assumptions and technical distinctions that have earned lawyers a bad reputation can this seem remotely complicated. Though claiming the authority of history, the assumptions and distinctions are ahistorical.

All subsequent anti-birthright “literature” (broadly defined to include things that are written down somewhere) is shaped by Peter Schuck and Rogers Smith’s 1985 book Citizenship Without Consent: Illegal Aliens in the American Polity. (For the record, Schuck has expressly rejected the constitutionality of any anti-birthright executive order and indeed suggested that no “competent lawyer” would defend it.) The authors elaborate a theory of citizenship that is based on reciprocal consent on the part of the sovereign and the would-be citizen. The sovereign agrees to provide protection to the citizen, and in return the citizen pledges undivided allegiance to the sovereign. Schuck and Smith contend that although the common law held that citizenship generally attached to all persons born within the territorial jurisdiction of a state and subject to its civil and criminal laws—a theory of citizenship grounded in a nonconsensual and indissoluble sovereign-subject bond—the Framers of the Fourteenth Amendment rejected this “ascriptive” view of citizenship.

Their argument draws extensively upon the legislative debate over the Citizenship Clause regarding its application to Indians. Schuck and Smith make a great deal of Senator Lyman Trumbull’s insistence that “jurisdiction” was lacking over Native nations and their citizens because they did not “ow[e] allegiance to anybody else,” as well as Senator Jacob Howard’s claim that Tribal citizens were not “subject to the jurisdiction thereof” because United States did not have “full and complete” jurisdiction over them. From such evidence Schuck and Smith extract a general Republican commitment to consensual citizenship. Common to all the exceptions to birthright citizenship acknowledged by Republicans—children of Tribal citizens, children of ambassadors, children of diplomats—is, they maintain, a lack of reciprocal consent. Pointing to the absence of reciprocal consent between undocumented immigrants and the United States, Schuck and Smith claim that the children of undocumented immigrants are not guaranteed birthright citizenship....

Professor Bernick then criticizes this claim, drawing especially on his knowledge of antebellum abolitionist and Native American history.

02/14/2025

The Department of Justice's (Correct) Position on Presidential Removals
Michael Ramsey

Via Eugene Volokh at Volokh Conspiracy, the Justice Department has informed Congress that "the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality."  From the Department's letter: 

In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court recognized that Article II of the Constitution gives the President an "unrestricted" power of "removing executive officers who had been appointed by him by and with the advice and consent of the Senate." Id. at 176. In Humphrey'Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created an exception to that rule. The Court held that Congress may "forbid the[] removal except for cause" of members of the FTC, on the ground that the FTC exercised merely "quasi-legislative or quasi­-judicial powers" and thus could be required to "act in discharge of their duties independently of executive control." Id. at 628-629. Statutory tenure protections for the members of a variety of independent agencies, including the FTC, the NLRB, and the CPSC, rely on that exception.

The Department has concluded that those tenure protections are unconstitutional. The Supreme Court has made clear that the holding of Humphrey's Executor embodies a narrow "exception" to the "unrestricted removal power" that the President generally has over principal executive officers and that the exception represents "'the outermost constitutional limit[] of permissible congressional restrictions'" on the President's authority to remove such officers. Seila Law LLC v. Consumer Fin. Protection Bureau, 591 U.S. 197, 215, 218 (2020) (citation omitted). Further, the Supreme Court has held, the holding of Humphrey's Executor applies only to administrative bodies that do not exercise "substantial executive power." Id. at 218-219. The Supreme Court has also explained that Humphrey'Executor appears to have misapprehended the powers of the "New Deal-era FTC" and misclassified those powers as primarily legislative and judicial. Id. at 218.

The exception recognized in Humphrey's Executor thus does not fit the principal officers who head the regulatory commissions noted above. As presently constituted, those commissions exercise substantial executive power, including through "promulgat[ing] binding rules" and "unilaterally issu[ing] final decisions * * * in administrative adjudications." Seila Law, 591 U.S. at 218-219. An independent agency of that kind has "no basis in history and no place in our constitutional structure." Id. at 220; see id. at 222 & n.8.

To the extent that Humphrey's Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf, and which has already been severely eroded by recent Supreme Court decisions. See, e.g., Selia Law, 591 U.S. at 223-229; Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 492-494 (2010).

Agreed.  Especially agreed as to the first three paragraphs.  There's been a lot of speculation as to whether Humphrey's Executor might be overruled, but I don't think overruling is necessary if the case is read narrowly (and correctly).  As the DOJ says, and as emphasized in this earlier post, the central factual premise of Humphrey's Executor was that the relevant official did not exercise executive power.  There were various ways the Justices might have distinguished Myers, but this is how they actually did it.  Thus the holding of Humphrey's Executor is -- and is only -- that Congress may limit the President's power to remove officers who do not exercise executive power.

That holding is correct.  The President does not have a free-standing removal power.  The President's power  of removal arises from the Constitution's vesting of executive power in the President.  As Justice Scalia argued in his dissent in Morrison v. Olson, the President does not have all of the executive power, as the Constitution requires,  if some official exercising executive power is beyond the President's control.  Thus, to the extent an officer does not exercise executive power, this constitutional limit is simply not implicated.

It's true that the Court in Humphrey's Executor may have been mistaken or disingenuous about the nature of the power exercised by the agency.  That is irrelevant to the Court's holding.  What the Court said was that Congress could limit the removal of non-executive officers.  If the Court then misapplied that rule in the case itself, that does not change the rule.

It's also true that Humphrey's Executor has been understood (or assumed) to have a broader application in subsequent years.  I agree with the DOJ letter that if the case is given a broader application to protect executive officers, it would be unconstitutional and should be reconsidered.  But that isn't necessary.  All that's needed is to read it narrowly and correctly.  

This approach is consistent with the approach I've suggested more generally for non-originalist precedents. Often, all that it necessary to move the law in the direction of originalism is to not extend non-originalist precedents.  That's not to say that non-originalist precedents should never be overruled, but my inclination would be not to overrule them unnecessarily.

Further, there's good practical reason to emphasize that even under the Constitution's original meaning Congress may well have power to limit the removal of non-executive officers.  There may be important officers and agencies that do not exercise executive power.  And the Federal Reserve -- at least as to its core powers -- might be one.

02/13/2025

Judge Patrick Bumatay on the Church Autonomy Doctrine
Michael Ramsey

In the recently decided en banc Ninth Circuit case Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, the court held that the Church did not defraud a member by misstating the way it was financing a Church project. Judge Patrick Bumatay concurred in the result, on the ground that the church autonomy doctrine, derived from the original meaning of the establishment clause, barred the suit.  From his introduction: 

... In deciding religious matters, the Constitution strictly limits our authority. Simply put, the church autonomy doctrine bars federal courts from resolving matters of faith, doctrine, and church governance. So we can’t just sidestep the doctrine and jump straight to the merits. Nor can the doctrine be assumed away, considered an afterthought, or serve as a convenient alternative ruling. Rather, it’s a threshold structural bar that must be reckoned with. Otherwise, we violate the restraints the Constitution places on our power.

In this case, James Huntsman alleges that the Church committed fraud in inducing its members to tithe. He claims he only gave millions of dollars in tithes to the Church because it assured the faithful that the money donated would not be spent on a specific development project. In truth, he says, the Church used tithes to fund the development project. But resolving his claims requires swimming in a current of religious affairs. What is a “tithe”? Who can speak for the Church on the meaning of “tithes”? What are Church members’ obligations to offer “tithes”? These are questions that only ecclesiastical authorities—not federal courts—can decide.

Because Huntsman’s claims involve court interference in matters of religious truth, the church autonomy doctrine bars reaching their merits. The doctrine is born of the First Amendment’s Religion Clauses. “[T]he Religion Clauses protect the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 746 (2020) (simplified). Through the Free Exercise Clause, religious groups have the right “to shape [their] own faith and mission[.]” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 188 (2012). The Establishment Clause, on the other hand, “prohibits government involvement in . . . ecclesiastical decisions.” Id. at 189. So government interference in religious matters both “violate[s] the free exercise of religion” and “constitute[s] one of the central attributes of an establishment of religion.” Our Lady of Guadalupe, 591 U.S. at 746. In other words, the Constitution leaves matters of faith exclusively to the people and their Creator.

Together then, the Religion Clauses create a structural restraint on the government’s power to decide religious
questions. The doctrine’s structural nature is most clear through its Establishment Clause foundation. The
Establishment Clause provides that “no law” may establish religion. As an original matter, the Clause denied the federal government authority to operate in the religious sphere. That means no court can decide internal religious questions. And we are not free to ignore the doctrine. Although not strictly jurisdictional in the technical sense, the church autonomy doctrine operates as a limit on judicial authority itself. Given this limitation, the church autonomy doctrine cannot be disposed of at the court’s choosing and must be addressed as a threshold matter. So the majority errs in skirting the doctrine and reaching the merits, and the main concurrence errs in endorsing the majority’s merits ruling as a simple alternative to its church autonomy analysis.

The main part of the opinion presents extensive and comprehensive originalist analysis in support of the autonomy doctrine, in too much detail to excerpt.

Congratulations to my colleague Steven Smith for citations to and quotations from his article The Jurisdictional Establishment Clause: A Reappraisal, 81 Notre Dame L. Rev. 1843 (2006) (along with many other leading originalist scholars, including Michael McConnell, Richard Garnett, Stephanie Barclay and Vincent Phillip Munoz).

02/12/2025

Richard Reinsch on Charles Kessler on the Founders
Michael Ramsey

At Law & Liberty, Richard Reinsch: Charles Kesler’s Struggle for the Founders’ Constitution.  From the introduction:

American conservatism finds itself in a strange place. A resounding electoral victory was achieved in the 2024 election by a Republican party that, while modified from its Goldwater-Reagan standard, remains comprehensible to the conservative temperament. Conservatism is the form of the Republican party, or the party ceases to exist. Yet, conservatism has never agreed on the measuring rod of its activity. What precisely does it want to achieve, such that it knows the truth of its strategies and tactics?

One thinker who has been teaching, writing, and editing in ways that help us answer these essential questions is Charles Kesler, the founding editor of The Claremont Review of Books and a Dengler-Dykema Distinguished Professor of Government at Claremont McKenna College. His political essays and editorship of the CRB are widely known across conservatism. Kesler has also formed the minds of graduate students who have assumed leading roles in academia, politics, journalism, and non-profit work. A new book of essays, titled Leisure with Dignity, by former Kesler students bids us to consider Kesler’s career because his teaching and writing bear close study for the conservative cause and our constitutional republic.

We live in a season of thoughtful and, at times, highly contested grappling with the question of how conservatives recover an America paralyzed, if not broken, by progressive ideology. I interviewed Kesler and read his scholarly output to better understand his political thinking and what it means in this period of national tumult. Kesler’s distinctiveness is best understood through those who influenced him and shaped him to be a thinker capable of political writing who joins foundational principles with current events and circumstances to produce essays that enlighten our understanding, helping us understand pitfalls and opportunities.

His essays, for example, on President Trump, argue that the Founders’ Constitution needs a sturdier defense than the Republican party has offered it. President Trump has proven consequential in certain forms, especially identity politics, Kesler notes. Yet Kesler’s essays on the failures of conservative politicians to join their policies and arguments to a reinvigoration of the Constitution also should serve in any analysis of what Trump could accomplish. Kesler has also emerged as a distinctive critic of the so-called New Right in both its National Conservative and postliberal elements. But he has done so with a robust articulation of American constitutionalism and the virtues it demands. Members of these schools will profit from reading his arguments. This essay will further analyze what conservatives have missed in their overall mission and, by considering Kesler’s thinking on the Founders’ Constitution and Reagan’s presidency, outline how a reformed conservatism might recover a constitutional refounding.

02/11/2025

Jeffrey Pojanowski: Faces of Formalism
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) has posted Faces of Formalism (56 pages) on SSRN.  Here is the abstract:

Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. Yet with success has come uncertainty and dissatisfaction. Formalists and their critics observe that textualism and originalism can seem as open-ended as the purposive and dynamic methods they were supposed to replace. This article tries to diagnose the source of this discontent. It does so by identifying two different faces of formalist interpretation: the formalism of authority—adherence to original sources of law—and the formalism of method—constraint through predictable, rule-bound interpretation. Defenses of formalism often assume these two paths to constraint run together, but they can come apart. The careful search for an authoritative source is not readily amenable to rules. At the same time, seeking certainty and impersonality through mechanical methods risks interpretive drift from original, authoritative norms. 

Once we notice this tension, we see it everywhere in arguments about interpretive formalism: intentionalism versus public meaning; what kind of intentionalism; what kind of public meaning; the force of original expected applications; whether to treat interpretive method as law; and the centrality of rules over standards. Answers to these questions turn on how we reconcile or prioritize these two faces of formalism. It turns out that the standard contrasts between “form and substance,” or “form and function,” or “letter and spirit” miss important parts of the picture. Different substantive visions about law and interpretation compete within the confines of form. Method formalism’s goals are more functional, while the spirit of authoritative formalism is less likely to confine itself to the letter. Although no synthesis should obscure either face of formalism entirely, the most plausible approach places the search for authority at the center of the practice.

Via Larry Solum at Legal Theory Blog, who says "An important, deep, and thoughtful paper. If you care about general legal theory, this is worth your time. Highly recommended. Download it while it's hot!"

02/10/2025

A Reply to Kenneth Barr
Andrew Hyman

Thank you to Kenneth Barr for engaging with my draft article about citizenship, originalism, and illegal immigration (I have posted the second draft at this link.  Here are some replies….

Mr. Barr criticizes me for quoting an 1830 article by Joseph Story for the principle that domicile can “found or destroy jurisdiction.”  He says this refers to the jurisdiction of the courts, not jurisdiction of a nation over persons.  I disagree.  If someone is subject to the jurisdiction of a country’s courts then that person is subject to jurisdiction of that country itself, and if someone is not subject to a country’s courts then that country cannot exercise jurisdiction over that person, assuming a constitutional right to trial.  So jurisdiction of the U.S. and jurisdiction of the courts of the U.S. are inextricably related (as many others have concluded too).

Mr. Barr also points out that Joseph Story said the following in the same 1830 article: “A person born in a foreign country, while his parents are there under the allegiance of the government of the country, though they are there for temporary purposes only, is generally deemed a subject of such country, and owing allegiance to its sovereign.”  He did say that, but it doesn’t contradict the part I quoted.  Moreover, the Citizenship Clause was later phrased to address concerns about temporary foreign visitors (in 1866, Sen. William Fessenden said to Sen. Benjamin Wade, “Suppose a person is born here of parents from abroad temporarily in this country”).  Surely, the drafters and ratifiers of the 14th Amendment were entitled to clarify or even modify prior policy.  Observe too that Story was referring there to “subjects” not “citizens.”  When it came time to address citizens, Story wrote elsewhere:

Persons, who are born in a country, are generally deemed citizens and subjects of that country.  A reasonable qualification of this rule would seem to be, that it should not apply to the children of parents, who were in itinere in the country, or abiding there for temporary purposes, as for health, or occasional business.

No draft of my article has mentioned this statement by Story, nor the statement by Fessenden, because we should be more concerned about the meaning of words, and the original public meaning of the constitutional text, rather than compiling every policy statement that might happen to support one's conclusions, and the policy statements of Fessenden and Story certainly do support my conclusions.

Mr. Barr also criticizes me for citing a West Virginia state case that was actually quoting the argument of counsel and not the opinion of the court.  This is a valid criticism, I made a stupid mistake and have corrected it, thank you.

Mr. Barr says that “Justice McLean’s dissent in Dred Scott is not relevant authority….” But of course it is relevant authority, the Citizenship Clause was written in large part to overturn Dred Scott.  Moreover, it is significant that citizenship and domicile had closely-related meanings in the decades leading up to the Fourteenth Amendment, even if there was no specific issue in the Dred Scott case about foreign parents visiting the U.S., or about illegal immigrants.  McLean’s dissent was very clear that “any individual who has a permanent domicil in the state under whose laws his rights are protected, and to which he owes allegiance” is a citizen who can sue a citizen of another state per the federal diversity statute.  And McLean was absolutely correct.  See Case v. Clarke, 5 Fed. Cas. 254 (C.C.R.I. 1828) (Justice Story on circuit) (“To constitute a person a citizen of a state, so as to sue in the courts of the United States, he must have a domicil in such state …. [A] mere temporary change of place, without any intention of permanent residence, constitutes no change of domicil”); Brown v. Keene, 33 U.S. 112, 115 (1834) (“A citizen of the United States may become a citizen of that state in which he has a fixed and permanent domicile….”).

Mr. Barr also mentions that, “If Trumbull and the other framers were around in 1885 when Andrew Hyman said we subjected Indians to our criminal law, they would have agreed the Indians would be subject to our jurisdiction under their definition.”  Maybe so, I take no position about it.  In my second draft (linked above), I mention that Professor Bryan Wildenthal has written that, “It seems difficult to dispute that, at least from [1885] on, Indians have been ‘subject to the jurisdiction’ of the United States.”   Evidently, Mr. Barr thinks that subjecting a person to a criminal law is relevant to the “jurisdiction” mentioned by the Citizenship Clause whereas giving a court authority to try a case in which that person is a party is not —- but I think they are both relevant.

Mr. Barr says my article discusses a statement by Senator Trumbull with respect to the Civil Rights Act, to the effect that children of temporary residents were excluded from birthright citizenship.  My article quotes Trumbull as saying (to President Andrew Johnson) that the citizenship clause of the Civil Rights Act was referring to children born to people domiciled in a state, and I am unaware that Trumbull ever repudiated that understanding of citizenship, which is not so much an exception as a definition of what it means to be a citizen.  Mr. Barr discusses what happened in “a later Congress” but does not say which one, or give any date.  He says, “Senator Williams as Grant’s Attorney General ruled that children of temporarily resident aliens were citizens.”  Maybe, maybe not, but I wrote nothing about it, and President Grant took office after the Fourteenth Amendment had already been ratified by the states.  So anything said during the Grant administration lacked much relevance to an originalist interpretation of the Citizenship Clause.

02/09/2025

Mila Sohoni: Chevron's Legacy
Michael Ramsey

Mila Sohoni (Stanford Law School) has posted Chevron's Legacy (138 Harvard Law Review Forum 66 (2025)) (23 pages) on SSRN.  Here is the abstract:

In June 2024, the Court in Loper Bright Enterprises v. Raimondo overruled Chevron. In her Response to Professor Merrill’s recent Case Comment on the decision, Professor Mila Sohoni looks at the forces that may shape Loper Bright’s future development. Some would warmly welcome a world in which Loper Bright proved to make only relatively modest inroads on the Chevron regime. Others, to put it mildly, would not. The sentiment underlying the former position is obvious and is set out at length in Justice Kagan’s searing dissent — if courts replace agencies as the primary interpreters of statutes, the quality and quantity of federal regulation will be corroded, and America will suffer for it. The sentiment underlying the latter position is also not hard to grasp: Chevron was unlawful, the overruling of Chevron must mean something, and Loper Bright’s shoulder-to-shoulder six-Justice majority could not have meant to permit the reemergence of anything resembling the Chevron regime. This will be a dispute over the latent possibilities in the Loper Bright decision, and by the same token a dispute over Chevron’s legacy — over what, if any, legacy Chevron will be permitted to leave. 

In the longer run, this abandoned landmark may prove to be pertinent in a different sense. An ancient principle of law and justice — namely, “you broke it, you own it” — means that it is now incumbent on the Roberts Court to ensure that the Loper Bright regime succeeds in transcending the problems that eventually undermined Chevron. As we have recently witnessed, it is not easy to create a coordinating framework for governing court-agency contestation over law and policy. The most promising place to look to understand how this feat might be accomplished is to learn from the saga of Chevron's rise and fall. The three factors that loomed largest in Chevron’s rejection were failures of judicial administrability or “workability”; a perception of unfairness; and a stark political realignment that transformed its erstwhile supporters into ardent opponents. If the Court can absorb the lessons of Chevron’s demise by making the Loper Bright framework into a workable, fair, and politically legitimate regime, then Chevron’s most lasting legacy will be the wisdom it left us in its passage.

Part I sets out how the Loper Bright framework in principle and in application has the potential to preserve dimensions of the realm of deference that Chevron once safeguarded. Anticipating resistance to this understanding of Loper Bright, this Part explains why Loper Bright should not be cabined to avoid recreating outcomes that echo or resemble Chevron. Part II looks to the road ahead. If the new Loper Bright regime is to succeed in transcending the kinds of problems that came to conquer Chevron, the Court must learn the lessons of Chevron’s fall. A brief conclusion follows.

Via Legal Theory Blog, where it is the "Download of the Week" and Larry Solum says "Highly recommended."

02/08/2025

David Schwartz: Madison's Federalist 37 and the Structure of the Ratification Debates
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted The Rhetoric of Deception: Madison's Federalist 37 and the Structure of the Ratification Debates (43 pages) on SSRN.  Here is the abstract:

James Madison's Federalist 37 is widely regarded by scholars as a political philosophy ur-text or a theoretical exposition of the now-trendy concept of "liquidation." These accounts tend to obscure Madison's very specific purpose in writing the essay: to persuade moderate "swing" voters in the ratification campaign that the Constitution's enumeration of powers could safely be understood as a limitation on the proposed national government's powers. Pro-ratification Federalists were in a bind: the Constitution's text was so plainly ambiguous about whether the enumeration was exhaustive and limiting, or instead illustrative and open-ended, that this textual ambiguity could not be plausibly denied. Yet Federalists were compelled by the political and rhetorical structure of the ratification campaign to deny this ambiguity. Their solution was to make what modern public meaning originalists call a "contextual enrichment" argument, that a facial ambiguity can be resolved by reference to background interpretive principles. For this case, they concocted the now familiar argument that all "federal" constitutions"including both the proposed Constitution and the Articles of Confederation"presumptively limited the central government to its enumerated powers. The argument was dubious and widely disbelieved; worse, as Madison knew, the ambiguity was in fact the intentional product of a compromise at the Philadelphia Convention between nationalist advocates of broad legislative powers and "enumerationist" advocates of limited enumerated powers. Anyone looking to the Framers' intentions to resolve the ambiguity would confirm Anti-Federalist suspicions that the enumeration of powers was intended to allow a post-ratification Federalist government to exercise broad powers. 

This article argues that Federalist 37 was written to address this specific problem. Madison realized the need to obscure the Framers' intentions and cover up the compromise over the enumeration of powers. He sought to do so in Federalist 37 by arguing that ambiguity about the "line of partition" between federal and state power resulted entirely from unintentional and innocent causes: the limits of language and human capacities, rather than an intentional, behind-closed-doors compromise. This argument, Madison hoped, would clear the way for him to elaborate the Federalists' "federal constitutions" argument in Federalist Nos. 39-45 that the enumerated powers were presumptively, and therefore unambiguously limited. In this light, the concept of "liquidation" briefly mentioned in a single sentence in Federalist 37 was of no value, since moderates concerned about excessive national powers would hardly be reassured by having this ambiguity "liquidated" by the Federalist-dominated governments that the ratifiers anticipated.

02/07/2025

Orginalism Works-in-Progress Conference Today and Tomorrow
Michael Ramsey

The Sixteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference, organized by the  University of San Diego Law School Center for the Study of Constitutional Originalism, will take place today and tomorrow.  Here is the schedule:

Friday, Feb. 7

2:00 – 2:30    Welcome & Registration

2:30 – 2:45    Opening Remarks:  Michael Rappaport (USD)

2:45 – 4:00    First Paper:  

Mitchell Berman (Penn), Public Meaning Originalism: Right Question, Wrong Answer

Commentator: Will Baude (Chicago)

Moderator: Tom Colby

4:00 – 4:15    Break

4:15 – 5:30    Second Paper:

Ilan Wurman (Minnesota), The Constitution of 1789: Foreign Affairs and War 

Commentator: Michael McConnell (Stanford)

Moderator: Maimon Schwarzschild (USD)

 

Saturday, Feb. 8

9:30 – 10:45    Third Paper:  

Sherif Girgis (Notre Dame), Unfinished Liberties: The Inevitability of Interest-Balancing             

Commentator: Stephanie Barclay (Georgetown)

Moderator: Steven Smith (USD)

10:45 – 11:00    Break

11:00 – 12:15    Fourth Paper:

Randy Barnett (Georgetown) & Larry Solum (Virginia), Originalism and the Party Presentation Principle             

Commentator: Tara Grove (Texas)

Moderator: Judge Patrick Bumatay (9th Circuit)       

12:15 – 1:15    Lunch

1:15 – 2:30    Fifth Paper:  

Charles Capps (Arizona State), Does the Law Ever Run Out?

Commentator: Jack Balkin (Yale)

Moderator: David Upham (Dallas)

2:30 – 2:45    Break

2:45 – 4:00    Sixth Paper:  

Stephen Sachs (Harvard), The Twelfth Amendment and the ERA

Commentator: Thomas Schmidt (Columbia)

Moderator: Adam Griffin (Pacific Legal Foundation)

4:00 – 4:15    Break

4:15 – 5:30    Seventh Paper:

Robert Leider (Scalia), The Individual Right to Bear Arms for Common Defense

Commentator: Adam Winkler (UCLA)

Moderator: Chris Green (Mississippi)

02/06/2025

Thoughts on Birthright Citizenship from Kenneth Barr
Michael Ramsey

[Ed.: the following comments are from reader Kenneth Barr, regarding Richard Epstein's essay noted here and Andrew Hyman's draft paper available here.  They're generally in line with my thinking on the matter, though I don't necessarily agree with them on specifics (but I might). The comments have been lightly edited.]

(1) Professor Epstein’s claim that the gist of Justice Gray’s opinion in Wong Kim Ark is that the son of Chinese immigrants “could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country” is curious as Justice Gray says nothing remotely along these lines.  The gist of the opinion is that we adopted the English common law both under our original Constitution and in the 14th Amendment using the language of territorial jurisdiction that makes clear everyone who is included and excluded from such rule.  Of course, Wong Kim Ark didn’t discuss illegal aliens.  Assault rifles didn’t exist when the Constitution was written, however, we strive to understand the original public meaning of the language and apply it to modern circumstances like many other provisions of the Constitution.  Justice Gray clearly defines what the language means and the bottom line is that there is no way to exclude children of undocumented or temporarily resident aliens without completely ignoring the text or making up one’s own definition of “jurisdiction”, which unfortunately we see being done by opponents of birthright citizenship.

(2) Justice Gray looked to the international law of territorial jurisdiction, the only law of jurisdiction with respect to a nation’s jurisdiction over persons in its territory that existed at such time, and looked to Justice Marshall’s opinion in The Exchange, which was the seminal case on the international law of jurisdiction and was cited or followed by the treatises on public law of the time.  For example, “[e]very independent state has full and complete jurisdiction over all persons and things physically situated within its territorial limits, whether those persons and things are permanently or transitorily present.” John Norton Pomeroy, Lectures on International Law in Time of Peace, pg. 202 (1886).  To name a few more of the many treatises, Henry Wheaton, Elements of International Law, (1842); Joseph Story, Conflict of Laws, pg. 23 (1841); Henry Wagner Halleck, International Law: Or, Rules Regulating the Intercourse of States in Peace, pg. 162 (1861); Sir Edward Shepherd Creasy, First Platform of International Law,  pg. 175 (1876); George Breckinridge Davis, Elements of International Law, pg. 54-55 (1884); Freedman Snow, International Law, pg. 31 (1898).  There was no concept of domicile relevant to territorial jurisdiction under international law.  Treatment of temporary residents was a matter of comity or curtesy, not a lack of jurisdiction.  In the words of publicist Traver Twiss “to be resident within the territory of a Nation is to be subject to its Jurisdiction; but Nations, from considerations of mutual Comity, do not apply the same Laws in all matters to persons who are only temporarily resident, as to persons who are permanently resident within its territory”.

(3) Andrew Hyman only cites Story anonymously stating domicile can “found or destroy jurisdiction,” where a few sentences later Story made clear he is talking about being subject to the jurisdiction of the courts (a matter of municipal legislation and not relevant to the jurisdiction of a nation over persons born on is soil), and in the next paragraph tells us children of temporarily resident aliens are generally subjects of the country they are born in. 

(4) Professor Epstein stating that “there is no record of any parent claiming that their children born in the United States were citizen” is curious as is he seems to be claiming he looked at all antebellum records.   He clearly missed Lynch v. Clarke, the seminal antebellum case on citizenship that was cited by everyone, that was about a child of a temporary resident alien claiming citizenship.  It is simply a historical fact that prior to 1866, and for two decades afterwards, the government granted passports to anyone who could prove native birth, as the application did not even ask who the parents were, much less whether their residence was temporary or what was their domicile was. The Justice Department and State Department had said we followed birthright citizenship.  See Galliard Hunt, United States Dept. of State, The American Passport, pg. 49 (1898).  Such was also the case with protection certificates given to sailors to prove their U.S. citizenship.  Since individuals were declared citizens by our government based on native birth alone and weren't even asked whether their parents' residence was temporary, why would there be records of children of temporary residents claiming citizenship? I would turn this around and challenge Professor Epstein to find a single instance where such a person was denied citizenship, or any actual legal authority that said such persons were excluded.   Such authority does not seem to exist as all authority of note, and there is a mountain of it, appears to say we followed the common law where temporary residency was irrelevant.  I don’t think Andrew Hyman’s citations are helpful.  He cites a West Virginia state case where he is actually quoting the argument of counsel for the appellant and not the opinion of the court, which starts a few pages later and hence is not authority at all.  Justice McLean’s dissent in Dred Scott is not relevant authority as the issue in the case was whether the federal court had jurisdiction under the Judiciary Act for a case between a citizen of one state and a citizen of another state; he opined that “any individual who has a permanent domicil” would be deemed a citizen of the state for purposes of such Act.  McLean is not talking about who is a citizen at birth or stating domicile is a necessary component of citizenship.  Obviously, a natural born citizen who domiciles overseas is still a citizen but may not be able to sue under the Judiciary Act if not a citizen of a state.  One should note that Taney’s majority opinion in Dred Scott rejected the notion that national citizenship is based on state citizenship, as did Lynch v. ClarkeLudlum v, Ludlum and most other authority by such time, including the framers of the Amendment.  Such notion never made sense once we deemed persons in territory acquired by treaties to be citizens by treaty when such persons never stepped into a state.

(5) Professor Epstein is wrong that the Civil Rights Act excluded foreigners.  The Civil Rights Act language does not say “being a subject of a foreign power”.  It says “subject to a foreign power” as in subject to the jurisdiction of a foreign power which is what its author, Senator Trumbull, and others in such Congress said it meant, with Trumbull saying in a later Congress it, and the 14thAmendment, were declaratory of the common law and only excluded children of ambassadors.  Read this way the clauses are just mirror images of each other, as under international law the only people on our soil who are subject to the jurisdiction of a foreign power are the people who are not subject to our jurisdiction.  There was no enumeration of exceptions, as Trumbull thought the “not subject to a foreign power” language excluded Indians but added the “Indians not taxed” when some people weren’t sure.  He refused to add the same language in the Amendment when one Senator insisted it meant actually paying tax rather than subjecting oneself to our tax laws by leaving one’s tribe.  Regardless, it was made clear in the legislative history of the Act that  they were adopting the common law as such was expressly stated, that the Act only excluded children of ambassadors and that children of aliens were citizens, a point repeatedly made without objection -- though one Senator voted against the Act because he was told it included children of Chinese aliens.   No one said merely being deemed a subject under foreign law prevented U.S. citizenship, which would be absurd as members of this Congress were surely aware, as it was discussed at length in the very next Congress, that perhaps half of our citizens were dual citizens as, for example, a child of a citizen born on our soil was a British subject if his grandfather was an immigrant, whether or not he was naturalized.  We should also note that, in 1868, two years after adoption of the Act, Justice Swayne riding circuit held in United States v. Rhodes that the Civil Rights act was declaratory of the English common law excluding only children of ambassadors, and no other court ever interpreted it otherwise.

(6) Elk v. Wilkens dealt solely with tribal Indians born on a reservation and didn’t say a word about children of aliens or even Indians born off the reservation, who were clearly intended to be citizens under the Civil Rights Act.  It held that such tribal Indians were not “completely subject to their political jurisdiction and owing them direct and immediate allegiance,” without defining what these terms meant or why they didn’t apply to tribal Indians.  Indeed, there was no concept of “political jurisdiction” under public law or other law at such time as Justice Gray seems to have made up the term out of thin air, which he only defined in Wong Kim Ark as being subject to charges of treason.  Justice Gray based his argument on such tribal Indians being born in what we always considered an alien nation, which made them the same as aliens born in a foreign country born under the allegiance of an alien nation; hence they needed to be naturalized just like foreign-born aliens.  Thus, if we did treat these Indian nations as akin to alien nations, his holding is perfectly consistent with the common law he lays out in Wong Kim Ark, as person born in a foreign country are not citizens under the common law.  In fact, even with being deemed an alien nation, under the common law members of such tribes would be deemed to owe allegiance to the tribes and not the United States, as under the common law persons born on land occupied by a tribal chief not in homage to the king owed their allegiance to the chief and not the king.  In Wong Kim Ark, Gray makes clear that children of aliens owe immediate allegiance at birth to the United States, defining allegiance at birth by the common law, and states that they are subject to its political jurisdiction as they are not born in what we consider an alien nation; hence they are subject to our absolute jurisdiction.  Gray cites authority that children of aliens owe political obligations that their parents do not, which was consistent with international law, though he doesn’t say such is political jurisdiction.  Elk’s claim that emigrants need to be naturalized is irrelevant as people born on the soil by definition are not emigrants and the Court has repeatedly said that naturalization does not apply to native-born persons other than Indians, who are considered foreign born. 

(7) Justice Miller’s dicta in The Slaughter-House Cases that anyone with a parent who is a foreign citizen or subject, made without any support or explanation on how the Amendment language can be so construed in the English language, is not persuasive authority as Congress had pointed out a few years earlier that a majority of our citizens had parents that were foreign or dual citizens.  This is probably why Miller would later admit he was wrong and stated it only excluded  children of ambassadors and children of temporarily resident aliens who took the child out of the country, which means they must have been citizens until they left, and which also makes no sense textually as it seems he was quite confused on the issue. No court followed either of Justice Miller’s interpretations as he provided no support for them, and all courts that actually addressed children of aliens outside of dicta prior to Wong Kim Ark followed the common law interpretation, as well as the vast majority of post-adopting interpretation as such  authorities ignored Miller’s dicta that had no textual or historical support.

(8) With respect to Minor v. Happersett, Professor Epstein is simply wrong that “the legal question presented was whether women could be citizens of the United States”.  Rather Justice Waite said “[t]he question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”  Justice Waite held that such a women citizen had no right to vote as suffrage was not a privilege and immunity of citizenship, because “[t]he amendment did not add to the privileges and immunities of a citizen” and women had always been citizens and suffrage had never been considered a privilege and immunity of citizenship.   He said suffrage was a matter of state law, not that citizenship was a matter of state law.  The citizenship discussion was merely dicta to support his claim that women were always citizens.  Like Wong Kim Ark, he said “natural born citizen” was defined by the common law but said some people had doubts about children of aliens under the common law that he didn’t need to look into.  Had he looked into it he would have found no one questioned the status of children of aliens  under the common law, as Wong Kim Ark did in its comprehensive review of the common law and who was a citizen under the original Constitution.

(9) The appeals court case in Ludlum v. Ludlum is in no way inconsistent with Lynch v. Clark.  Such court said it agreed with Lynch v. Clark that the question of U.S. citizenship should be defined by reference to the English common law.  It agreed with Lynch v. Clark that children of aliens in England were natural born subjects.  It agreed with Lynch v. Clarke that children with a British father born outside of England were natural born subjects under the common law and indeed made the most elaborate defense of such proposition in the U.S. or England, a proposition that most authorities in England and the United States rejected.

(10) Andrew Hyman points out that Senator Howard said the Amendment was declaratory of the current law which he defined a few days earlier as “a person who was born within the limits of the United States and subject to their laws".  In the debates the language was said to mean whether we had the power to subject people to our laws and accordingly most of the debates was on whether we could or had the power to subject Indians to our laws, with Trumbull arguing -- seemingly successfully as a majority voted with him -- that subjecting Indians to our laws would be prohibited by our treaties, though such topic would continue to be debated in future Congresses as there were skeptics that our treaties prevented our exercise of jurisdiction.  Everyone knew what the language meant, they just disagreed on application to Indians.   If Trumbull and the other framers where around in 1885 when Andrew Hyman said we subjected Indians to our criminal law, they would have agreed the Indians would be subject to our jurisdiction under their definition.  

(11) Andrew Hyman points out that Senator Trumbull did say with respect to the Civil Rights Act that children of temporary residents were excluded.   However, in a later Congress he would say both the Act and the Amendment were declaratory of the common law and only excluded children of ambassadors.  House Judiciary Chair James Wilson said we adopted the common law in the Civil Rights Act and made clear it included temporary residents.  In the 14th Amendment debates, it was made clear that children of temporary aliens were included by Senator Wade, without any objection, and Senator Conness said children of Chinese aliens were citizens  despite that the parent were only here temporarily, a theme that will be repeated multiple times in future Congresses when no one contested repeated statements that children of Chinese aliens were citizens even if they were only here temporarily on contracts with a set period.  Senator Williams as Grant’s Attorney General ruled that children of temporarily resident aliens were citizens.  No member of such Congress even suggested the amendment excluded temporary residents.  Such conclusion was also implicit in all the statements that only children of ambassadors were excluded and the statements we adopted the English common law which everyone knows did not include temporary residents.   For example, Senator Howard:

“But I held that in the sense of the Constitution every person born free within the limits of a State, not connected with a foreign minister’s family, is born a citizen whether he be white or black.”

02/05/2025

Robert Natelson on TikTok and Free Speech
Michael Ramsey

At Law & Liberty, Robert Natelson: TikTok and the First Amendment.  From the introduction:

The ultimate fate of TikTok in America remains unclear. After a brief blackout, the application returned live as discussions between TikTok and the new presidential administration continue. Officials in all three branches of the US government have weighed in, but the ultimate resolution is, of course, unknown.

In its January 17 decision in TikTok v. Garland, the Supreme Court unanimously upheld the “Protecting Americans from Foreign Adversary Controlled Applications Act” (PAFACA) against TikTok. TikTok’s parent company, ByteDance, is located in Communist China. PAFACA requires the parent company to either find a non-Chinese buyer for TikTok or terminate operations in the United States.

TikTok, of course, is a highly popular video-sharing Internet application. As detailed below, it also is a massive data-collection agency. Under Chinese law, its parent is obligated to share all collected data with the Communist government upon demand.

The court’s procedure in this Internet-related case—like its procedure in most electronic-medium cases—was wrong. Specifically, it asked the wrong questions, relied on highly subjective inquiries, and led the court into needless difficulty.

The First Amendment, ratified in 1791, protects six specific freedoms. By the time it was adopted, the broad outlines of each had been drawn by British and American statutes, judicial decisions, and custom—although there were disputes about some of the details.

Unfortunately, much of the Supreme Court’s First Amendment jurisprudence since then has been entirely disconnected from the intended meaning of the amendment. Today, the court relies on categories and balancing tests pulled out of thin air by the “progressive” majorities who dominated the bench during much of the twentieth century.

One of the most serious deviations from the actual meaning of the First Amendment is treating electronic-medium controversies as matters of free speech rather than what they are: cases involving freedom of the press. ...

02/04/2025

Joel Alicea: Bruen Was Right
Michael Ramsey

J. Joel Alicea (Catholic University of America  - Columbus School of Law) has posted Bruen Was Right (69 pages) on SSRN.  Here is the abstract:

New York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the consensus view among nearly all constitutional scholars is that Bruen’s text-and-history test is a mistake. According to originalists and non-originalists alike, Bruen’s methodology lacks a theoretical justification, is inherently manipulable, and is doomed to fail in its attempt to replace tiers-of-scrutiny-like judicial balancing tests.

I argue that Bruen’s methodology was right. Its theoretical justifications are sound; its methodology is principled; and its capacity to replace judicial balancing tests like the tiers of scrutiny is evident. In Parts I and II of this Article, I provide an exposition of the method and justification of Bruen’s text-and-history inquiry, followed by responses to the principal scholarly criticisms of Bruen’s methodology. In Part III, I examine recent scholarly defenses of Bruen’s rival—the tiers of scrutiny—and argue that Bruen represents a better approach to adjudicating constitutional rights.

The combined result of these three Parts is the most comprehensive explication and defense of Bruen’s methodology to date, a defense that is unique in a literature dominated by criticisms of Bruen. It is a defense that requires confronting some of the most vexing problems in constitutional law, such as the level-of-generality problem and the role of balancing tests in the adjudication of constitutional rights. Because these problems recur throughout constitutional law, this Article’s contributions are relevant beyond the debate over Bruen—and to originalists and non-originalists alike.

02/03/2025

Ilya Somin on Tariffs and Nondelegation
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Challenge Trump's Tariffs Under the Nondelegation and Major Questions Doctrines. From the introduction:

The Constitution gives Congress, not the executive, the power to regulate "commerce" with foreign nations. Trump claims the authority to impose these massive tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA), a vague statute that gives the president the power to set trade restrictions in situations where there is "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat."

...

Under Trump's logic, "extraordinary" or "unusual" circumstances justifying starting a massive trade war can be declared to exist at virtually any time.  This interpretation of the IEEPA runs roughshod over constitutional limitations on delegation of legislative power to the executive. For decades, to be sure, the Supreme Court has taken a very permissive approach to nondelegation, upholding broad delegations so long as they are based on an "intelligible principle." But, in recent years, beginning with the 2019 Gundy case, several conservative Supreme Court justices have expressed interest in tightening up nondelegation. The administration's claim to virtually limitless executive discretion to impose tariffs might be a good opportunity to do just that. Such flagrant abuse by a right-wing president might even lead one or more liberal justices to loosen their traditional skepticism of nondelegation doctrine, and be willing to give it some teeth.

...

More promising than the nondelegation argument is the possibility of attacking Trump's tariffs under the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'"  If the statute is ambiguous, courts must presume that Congress didn't give the agency the power the executive claims. In recent years, the Supreme Court has relied on MQD to strike down a number of sweeping assertions of authority by the Biden administration, such as its attempt to forgive over $400 billion in student loans, and the establishment of a nationwide eviction moratorium (first begun under Trump). The imposition of massive tariffs on our two largest trading partners is pretty obviously a  decision with "vast economic and political significance," one likely to cost the public even more than Biden's loan forgiveness plan would have. And, as in the student loan and eviction moratorium cases, the statutes under which the administration claims authority are far from clear in indicating it has such sweeping power. Furthermore, some of the conservative justices might welcome an opportunity to show that MQD isn't just a tool for the political right.

A key issue here is whether the nondelegation doctrine and the major questions doctrine apply to foreign affairs-related matters.  As indicated in this article on delegating war powers, my view is that under the Constitution's original meaning delegations that involve matters over which the President also has substantial independent power (common in foreign affairs), a delegation is much less constitutionally problematic.  But as Professor Somin says, tariffs and trade regulation are not in that category -- they are unambiguously included in Congress' legislative powers in Article I.  So it would seem that the same delegation standard should apply to them as applies to delegations of ordinary Article I domestic legislative power.

Unfortunately the Supreme Court in the Curtiss-Wright case held that foreign affairs delegations do categorically receive less constitutional scrutiny, and even more unfortunately, it held that in the specific context of trade regulation.  I've argued at length that Curtiss-Wright was wrong as a matter of the original meaning, but the case -- although de-emphasized in more recent Court decisions -- has never been overruled.

So I further agree with Professor Somin that the major questions doctrine (MQD) is probably a better line of attack on the tariffs.  As he says, the IEEPA -- the statute under which the President claims authority -- is broad and vague.  It's vague both as to when it can be invoked (in an emergency, which can be declared largely in the President's discretion) and as to what it allows the President to do.  And the principal justification for the MQD -- that it's needed to prevent the executive branch from aggressively overreading statutes to claim lawmaking authority Congress never intended to convey -- applies equally to foreign affairs matters as it does in domestic matters.  And finally, in my view anyway, the MQD is within the Court's constitutional power to underenforce statutes as part of the Court's judicial power.  Of course, the MQD hasn't yet been applied to foreign affairs (or to delegations directly to the President), so this would be a considerable extension.  But I don't see an originalism-based reason not to make that extension (if one agrees that the MQD is consistent with originalism).

02/02/2025

David Schwartz: Dred Scott, Roe, And Enumerationism
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted An Ugly Common Ancestor: Dred Scott, Roe, And Enumerationism (39 pages) on SSRN.  Here is the abstract:

The Dred Scott case holds a deserved place in the constitutional “anti-canon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the lead opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This essay argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that created the Republican backlash at the time—reflected, not a strong precedent for substantive due process, which was a mere makeweight argument, but instead turned on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers.

My view:  Dred Scott is fake originalism.  Dred Scott's enumerationism is fake enumerationism.  There 's no doubt that under the original meaning of Article IV, Congress had power to ban slavery in the territories.

02/01/2025

Christine Kexel Chabot: Trump v. United States and the Half-Originalist Presidency
Michael Ramsey

Christine Kexel Chabot (Marquette University - Law School) has posted Trump v. United States and the Half-Originalist Presidency (University of Michigan Journal of Law Reform, Vol. 58 (forthcoming 2025)) (17 pages) on SSRN.  Here is the abstract:

The Court's recent decision in Trump v. United States has been criticized for its ahistorical approach to presidential immunity. This essay offers the first account of the historical mismatch between the Trump Court's decision to immunize presidential removal power and Founding-era conceptions of the Presidency. Unlike the presumptive immunity that the Court recognized for most other official presidential acts, the immunity afforded for presidential removal power is absolute. The Court ruled that the President's "unrestricted power of removal" can never be regulated by Congress or considered as evidence of wrongdoing, even when the President threatens removal in order to effectuate blatantly unlawful ends. The Court's approach creates a far more powerful Presidency than was ever recognized by the Founding generation. The text of Article II authorized the President "to execute" the law, not to violate it, and it required Presidents to "take care" that the law be faithfully executed. The Court's decision to immunize removal also conflicts with Founding era understandings and laws in which Congress restricted the President's removal power.

01/31/2025

Ed Whelan on "The Meese Revolution" by Gary Lawson and Steven Calabresi
Michael Ramsey

At Law & Liberty, Ed Whelan: The Triumph of Ed Meese.  From the introduction:

Edwin Meese III served as the 75th Attorney General of the United States during President Ronald Reagan’s second term, from 1985 to 1988. In The Meese Revolution, constitutional scholars Steven Calabresi and Gary Lawson make their case that Meese is the “most significant Attorney General in U.S. history.” They provide a comprehensive intellectual history of Meese’s “role in the triumph of originalism in legal interpretation.” No other Attorney General has “so thoroughly transformed the legal culture.”

Calabresi and Lawson lament that Ed Meese “does not get the public credit and recognition that he deserves.” Their book undertakes to correct that injustice, and it succeeds admirably in doing so. It stands as a towering monument to the man they rightly honor.

On Meese and originalism:

The core principle of originalism—or, more precisely, of its dominant “original meaning” version—is that laws are to be interpreted in accord with what their text meant at the time they were adopted. As Calabresi and Lawson detail, Ed Meese as Attorney General powerfully promoted the cause of originalism through various means.

The authors open with Meese’s speech to the American Bar Association in July 1985, “a speech that has reverberated throughout American constitutional law for the last four decades.” In that speech, Meese argued for a “Jurisprudence of Original Intention” that would make the text of the Constitution and the “original intention of those who framed it” the “judicial standard in giving effect to the Constitution.” He further committed that under his leadership the Department of Justice would “endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.” (Note that Meese’s interchangeable uses of “original intention” and “original meaning” signal that the competition between those two versions of originalism hadn’t yet emerged.)

Meese’s speech, the authors explain, “sparked a national conversation.” It elicited public responses from Justices William Brennan and John Paul Stevens, which in turn enabled Meese’s prompt reply to them. Their book analyzes that debate and presents several other important speeches Meese delivered on originalist topics.

Meese and his “right-hand man” Ken Cribb also made the Department of Justice an “incubator” of originalist ideas. Calabresi and Lawson were themselves among the many “brilliant and interesting legal minds” that Meese and his top advisers hired. Calabresi worked directly for Meese, and he proudly remains Meese’s “loyal and devoted follower.” Lawson was a line attorney in the influential Office of Legal Counsel. Their excitement decades later over the “intellectual atmosphere” that prevailed at DOJ is palpable.

Chuck Cooper, the very young head of OLC, “issued a blizzard of originalist OLC opinions on almost every subject under the sun.” The Office of Legal Policy, under Stephen Markman, produced a sourcebook titled Originalist Meaning Jurisprudence and a series of originalist monographs on subjects such as religious liberty, the Ninth Amendment, and criminal procedure. And DOJ hosted three major academic conferences, on federalism, separation of powers, and economic liberties.

And from the conclusion:

As Pam Bondi prepares to become our 87th Attorney General, it’s worth contemplating what made Meese so successful. The book reveals four key ingredients.

First, Meese had Reagan’s complete trust. The ties between the two men were tight and longstanding. Meese was Reagan’s chief of staff during most of his years (1967 to 1975) as governor of California, worked full-time on his 1980 presidential campaign, and headed his presidential transition team. Meese held the title of Counselor to the President during Reagan’s first term and was a member both of his Cabinet and of the National Security Council. Amazingly, during his time as Attorney General, he continued to serve as a member of the National Security Council and also chaired the White House’s Domestic Policy Council.

...

Second, Meese had a clear mission in mind. He was keenly aware of the dismal state of Supreme Court decision-making (I will not dignify it with the term constitutional law) that had persisted since his days as a prosecutor in the early 1960s, and he knew that a foundation had to be laid for genuine reform. He recognized the common-sense soundness of originalism, even as he knew that it required development.

...

Third, Meese knew that personnel is policy. He carefully selected his key advisers on the originalism project, put his trust in them, and delegated authority to them. More broadly, he knew better than to try to micromanage an organization of the size and complexity of DOJ.

Fourth, Meese had strong character as well as deep intellect. He inspired those who worked for him. I have had the pleasure of coming to know Meese over the past two decades, and the authors’ celebration of his character rings true.

Some readers might be put off by the fact that their praise sometimes crosses the line into hagiography. Humble as Meese is, I am guessing that he would recoil at their declarations that he “has lived a perfect life of service to other people and to his country, and to the world” and that “he exemplifies what St. Thomas Aquinas called the seven heavenly virtues: he is brave, wise, just, temperate, and full of faith, hope, and love.” But the very fact that Meese could receive such otherworldly acclaim is a compelling testament to the dedication he earned from those who had the honor to work for him.

01/30/2025

My Views on Birthright Citizenship with a Nonoriginalist Argument Against Birthright Citizenship
Mike Rappaport

Given the attention focused on birthright citizenship, I thought I would discuss my position.  Overall, I am something of a moderate on the issue, taking what are regarded as both pro-immigration and anti-immigration positions.*  

First, I believe that the original meaning of the 14th Amendment requires birthright citizenship largely for the reasons that Mike Ramsey has given.

Second, I believe there is a reasonably strong case against birthright citizenship based on a nonoriginalist, living Constitution approach.  I present this position at greater length below but I do not adopt it since I am an originalist.  But nonoriginalists who support birthright citizenship need to explain why they reject the argument I present below.

Third, as a normative or policy matter, I strongly favor a sensible and generous immigration system.  I would allow many people to immigrate – but only those who come here legally and are likely to accept the basic values of our nation.  I also believe we should be especially receptive to people who can make a valuable contribution to the country. 

Fourth, as a normative or policy matter, I oppose birthright citizenship.  While I favor significant immigration, there is little reason to allow children who just happen to be born here to automatically become citizens.  Citizenship should be reserved for people based on the sensible immigration system discussed above.  Birthright citizenship also makes it harder to have guest worker programs.

The Nonoriginalist Case Against Birthright Citizenship

Since I have never seen this argument anywhere else, let me briefly elaborate on why I believe there is a reasonably strong case against birthright citizenship based on a nonoriginalist, living constitution approach.

Text and Intent – One can read the text to deny the children of illegal aliens born in the US automatic citizenship. The 14th Amendment provides “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens.” What does “subject to the jurisdiction of the United States” mean?  I agree with Ramsey that the original meaning supports birthright citizenship but a nonoriginalist can read it differently.  One can read “subject to the jurisdiction of the United States” to mean “subject to the exclusive jurisdiction of the United States.” 

Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world.  By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country.  Thus, the children of illegal aliens would not be “subject to the exclusive jurisdiction of the United States.”  It is true that the language does not say "exclusive jurisdiction" but sometimes people use language loosely, as when they use "property" to mean "real property."  While inserting the term "exclusive" is a less persuasive reading of the text than the originalist one that Ramsey offers, nonoriginalists are not wedded to strict textual interpretation. 

Moreover, one might argue that something like exclusive jurisdiction was intended.  After all, the statute that the 14th Amendment was modeled on -- the Civil Rights Act of 1866 -- stated that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."  This would have excluded illegal immigrants for much the same reason that exclusive jurisdiction would. 

Normative Arguments – There are also strong normative arguments against birthright citizenship for the children of illegal immigrants (and for many others), as I mentioned above.  Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation. 

Changes in Society – The circumstances at the time might also be thought to argue against the originalist interpretation that Ramsey offers. At the time of the 14thAmendment, there was not an illegal immigration issue, since there were few, if any federal laws restricting immigration.  Thus, the Framers of the Amendment were unlikely to have had that issue in mind.  Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter.  

Other Developed Nations – Another type of nonoriginalist argument is to look to the existence of laws throughout the world, especially that of “civilized” countries in Europe.  A strong trend in these laws is thought to suggest that normatively the United States ought to follow it.  Significantly, other than Canada and the United States, there are very few developed countries that have birthright citizenship (depending on how one defines a developed country). And none of the European countries have it and several developed nations have repealed it in the last generation.

Thus, there is a strong nonoriginalist argument for reading the 14th Amendment not to confer birthright citizenship, at least to the children of illegal aliens.  Nonoriginalists might not agree with this argument, but it is hard for them to argue that it is illegitimate, since many nonoriginalists accept this type of argument.  In the end, one can’t have it both ways.  If one favors the freedom that nonoriginalist interpretation gives to an interpreter, then one must live with the way that others may use that interpretive freedom.

* I have blogged about this issue in the past and I borrow some of my language from previous posts.

Jonathan Adler on Trump and Presidential Removals
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: Is Humphrey's Executor in the Crosshairs?  From the introduction: 

President Trump's decision to fire over a dozen agency inspectors general may be legal, but he has made other moves that are almost certainly unlawful under existing Supreme Court precedent, Humphrey's Executor in particular.

On Monday, Trump purported to fire two Democratic members of the Equal Employment Opportunity Commission and the Chair and General Counsel of the National Labor Relations Board. Any one of these dismissals could result in litigation, and one in particular could set up a direct challenge to the Humphrey's Executor precedent.

Under Humphrey's Executor, decided in 1935, Congress may prevent the President from removing members of multi-member independent agencies (such as the Federal Trade Commission) without cause. A more recent decision, Seila Law (which I unpacked here) held that this does not apply to agencies exercising substantial authority headed by a single individual (such as the Consumer Financial Protection Bureau). While Seila Law did not purport to modify Humphrey's Executor, the two decisions are clearly in tension.

That brings us to President Trump's latest moves. ...

And from later on:

The decision to remove NLRB Chair Gwynne Wilcox, on the other hand, would seem to put Humphrey's Executor in the crosshairs. The relevant statutory provisions provide that members of the NLRB are appointed for set terms and (as is particularly relevant here) can be removed "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." Thus a President cannot remove a member merely because of anticipated policy differences or because the President wants the ability to make his own appointment.

There may be a clever way to try and distinguish the removal of an NLRB member from the removal of a Federal Trade Commission member (which is what was at issue in Humphrey's), but no serious argument for such an outcome comes to mind. This would suggest that if Wilcox contests her removal, the Administration will argue that Humphrey's Executor should be overruled, and courts will be forced to confront the question. Chief Justice Roberts may be a pro at manipulating statutory text to prevent disruptive outcomes, but this would seem to be beyond even his expertise.

In my view Humphrey's Executor may limited to its facts, or what the Court claimed were its facts.  Distinguishing its prior decision in Myers, the Court said:

The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department, and who exercises no part of the executive power vested by the Constitution in the President.

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive.  (emphasis added).

I have serious doubts about the Court's description of the agency at issue in Humphrey's, but taking the Court at its word, Humphrey's appears to be limited to agencies that "exercise[ ] no part of the executive power vested by the Constitution in the President."  That seems worth exploring as a way to distinguish modern agencies, which I would think often do exercise such power.

The Court went on to say:

In administering the provisions of the statute in respect of "unfair methods of competition" -- that is to say, in filling in and administering the details embodied by that general standard -- the commission acts in part quasi-legislatively and in part quasi-judicially. In making investigations and reports thereon for the information of Congress under 6, in aid of the legislative power, it acts as a legislative agency. Under § 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function -- as distinguished from executive power in the constitutional sense -- it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.

I have further serious doubts that the concepts of "quasi-legislative" and "quasi-judicial" have any basis in the Constitution or any meaningful content today.  But again, to the extent the Court was saying that the agency in Humphrey's didn't really exercise executive power, that seems a potential basis to distinguish modern agencies (whether or not it was actually a fair characterization of the agency in Humphrey's)

01/29/2025

Richard Epstein on Birthright Citizenship
Michael Ramsey

At the Civitas Institute, Richard Epstein: Trump’s executive order stands on a firmer footing than its vocal critics acknowledge.  From the core of the argument: 

On the historical front, there were no restrictions on immigration prior to the Civil War so there is no body of law that deals with it.  But the problem of the sojourner had to come up frequently, and there is no record of any parent claiming that their children born in the United States were citizens, so on one half the problem, the historical record is clearly against the claim.  And as illegality is, if anything, a more serious offense, it seems clear that if that problem had arisen, there is no reason to think that citizenship would have been granted.

Yet given the weak historical record, the overall understanding of Wong Kim Ark depends heavily on the key text of the Citizenship Clause of the Fourteenth Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

That language comes hard on the heels of the Civil Rights Act of 1866 which opens with this declaration:

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery . . .

The 1866 Act thus includes foreigners on the list of persons, along with Indians not taxed.  Diplomats are on that list. The Fourteenth Amendment contains no enumeration of excluded parties but does contain the phrase “subject to the jurisdiction thereof” that points to a set of unenumerated exclusions.  It is widely agreed that this phrase includes diplomats and their families who owe loyalty to their sovereign.  But if that were the only class of cases covered, the exception to citizenship language could have been explicit.  And it would be odd in the extreme if there were any reversal on foreigners, especially illegal aliens and sojourners, without some explicit notice of the point.  Yet the early case law speaks to these issues against the claim of birthright citizenship.  Thus, from the outset, it has never been disputed that members of the Indian tribes within the United States did not obtain citizenship of this clause.  Thus, Elk v. Wilkins (1884) held that the Indian plaintiff was not an American citizen because the Citizenship Clause required that he had to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.” Thereafter, it took The Citizens Act of 1924 to make by statute members of Indian tribes citizens of the United States.  Members of Indian tribes occupy a complex position under American law, which followed, according to Elk that “an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.” And the same position had also been taken in the well-known Slaughter-House Cases (1872). Speaking about the Citizenship Clause in the wake of Dred Scott v. Sandford (1857), they wrote: “That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  Both cases were cited and distinguished in Wong Kim Ark, which is no surprise since the same Supreme Court Justice, Horace Gray, wrote both Elk and Wong Kim Ark.

(Thanks to Jonathan Adler for the pointer.)

It's a forceful essay, as one would expect from Professor Epstein, and I agree that the case against the President's position isn't as self-evident as some suggest.  But I'm not persuaded.  I'll just note three quick points in response.

(1) Like much of the writing on its side of the issue, the essay does not develop an account of "subject to the jurisdiction [of the United States]" that that explains how that phrase meant something other than simply "subject to the legal authority of the United States."  In particular, it does not develop a meaning of the phrase that would include non-citizen permanent residents (held to be covered by the Citizenship Clause in the Wong Kim Ark case) but not non-citizen visitors.  (The best effort I've seen in that direction is Andrew Hyman's recent paper.)

(2) The essay does not address the fact (which I don't think is disputed) that under English common law children born in England (other than children of diplomats) were English subjects without regard to the status of the parents.  It's true that there was some dispute in the pre-Civil War United States whether that rule carried over completely to U.S. common law, though in my view the majority view was that it did.  (It's simply not true that there is "no record" of children of temporary visitors claiming U.S. citizenship in the pre-Civil War era.  As I noted in a prior post,  this situation was raised and discussed in court cases and commentary.)  The longstanding English rule is surely important historical background, and makes it entirely plausible that the Fourteenth Amendment's framers adopted a parallel rule.

(3) In my view the 1866 Civil Rights Act cuts against the narrow view of the Citizenship Clause, not in favor of it.  If one reads the Act to exclude from citizenship the children of all foreign citizens, and if the Fourteenth Amendment's framers had wanted that rule, they could have simply carried over the language of the Act.  Instead, they chose different language that indicates a more limited exclusion.

Ultimately, I agree with the essay that the issue comes down to the meaning of "subject to the jurisdiction," but as explained in my article on the matter from a while back, I think that phrase had a clear common meaning at the relevant time, and the various historical ambiguities one might raise in opposition aren't enough to overcome the text.

01/28/2025

Stuart Ford: The Preamble's Concern with Internal and External Threats
Michael Ramsey

Stuart Ford (University of Illinois at Chicago - UIC School of Law) has posted To Insure Domestic Tranquility and Provide for the Common Defence: The Preamble's Concern with Internal and External Threats (44 pages) on SSRN.  Here is the abstract:

There is a growing scholarly movement to rehabilitate the Preamble as a tool for understanding and interpreting the Constitution.  While there have been a number of articles arguing that the Preamble should be used to interpret the Constitution, there have been few articles that explore what the specific words and phrases in the Preamble mean.  Yet understanding the meaning of the phrases in the Preamble is a prerequisite to using it to interpret the Constitution.  This Article fills a gap in the Preamble literature by exploring the origins and meaning of the phrases "insure domestic tranquility" and "provide for the common defence."  

Both phrases have a rich history that begins in sixteenth century England and extends to eighteenth century America.  Both phrases were widely used in the decades preceding the Constitutional Convention and both had well-understood public meanings.  Those pre-existing public understandings can be used to understand what the Preamble means when it imposes a duty on the federal government to ensure domestic tranquility and provide for the common defence.  As this Article shows using contemporaneous documents, providing for the common defence referred to the obligation to supply the means necessary to protect the United States from attack, while insuring domestic tranquility referred to the government's obligation to ensure peace and calm within the country.  These two goals complement each other with domestic tranquility focusing on internal threats and the common defence focusing on external threats.

A related article, noted on this blog previously, is Stuart Ford, The Role of the Preamble: Evidence from the Constitutional Convention and Ratification Debates (Texas A & M L. Rev., forthcoming 2025).

I think it's methodologically appropriate for originalists to look at the preamble to resolve genuine ambiguities in the Constitution's text. But I also think people tend to look at the preamble when they can;t find what they're looking for in the substantive part of the Constitution.

01/27/2025

Citizenship and Temporary Visitors to the United States
Andew Hyman

In a blog post on January 23, Michael Ramsey wrote about a child born in the United States to a mother temporarily visiting the U.S. from abroad.  Mike asserted that denial of birthright citizenship for the child would be “not constitutional under any version of originalism.”  But it would be under my version.

In support of his assertion, Mike's blog post relies upon (among other things) a New York case, Lynch v. Clarke (1844), and also an 1848 edition of a treatise by James Kent which discussed Lynch v. Clarke.  But Mike previously wrote in a law review article that, “despite the holding in Lynch, it seems fair to say that the issue of temporary visitors remained somewhat unsettled in the mid-nineteenth century.”  So, if the matter was unsettled, then why should we be certain that the U.S.-born child of temporary foreign visitors qualifies under the Citizenship Clause?  Mike acknowledges that an 1863 New York case (Ludlam v. Ludlam) was in “considerable tension with Lynch,” so basically I would say that New York law was a mess when it came to this subject, as of the mid-1860s.

Putting aside New York, other states were following the lead that Justice John McLean set in his Dred Scott dissent.  McLean wrote:

It has never been held necessary, to constitute a citizen within the act [authorizing lawsuits in federal court], that he [i.e. Mr. Scott] should have the qualifications of an elector [i.e. a voter].  Females and minors may sue in the federal courts, and so may any individual who has a permanent domicil in the state under whose laws his rights are protected, and to which he owes allegiance.

Thus, domicile (or “domicil” in the old-fashioned spelling) was a critical factor in constituting someone a citizen.  And temporary visitors from abroad ain’t got no domicile here in the United States.  An 1865 case in the West Virginia Supreme Court echoed Justice McLean: “in the United States, domicil is citizenship — that which describes the one describes the other….”

It is a mistake to assume that “jurisdiction” has only one meaning in every context, and the word “jurisdiction” in the Citizenship Clause therefore needs to be treated carefully.  If it simply meant being subject to U.S. laws, then it would be very hard to argue that indigenous Americans were simultaneously not subject to U.S. jurisdiction and yet were subject to the Major Crimes Act of 1885 (which gave federal prosecutors authority to prosecute crimes on tribal lands, including murder, rape, arson, and burglary).  It could be, of course, that the Major Crimes Act has been unconstitutional since 1885, or alternatively that indigenous Americans have all qualified for birthright citizenship under the Citizenship Clause since 1885, but Mike hasn't made that case, as far as I know.

There were antebellum descriptions of “jurisdiction” that meant more than merely being subject to U.S. laws.  For example, Joseph Story wrote this:

The question of domicil is of very great importance, for it often regulates political and civil rights, and founds or destroys jurisdiction over the person or property.

In that conception of jurisdiction, domicile is required, which matches up with what Justice McLean wrote in his Dred Scott dissent, quoted above.  It also matches up with other key evidence described in my recent article on this subject.   Many senses of the word "jurisdiction" coexisted, so in my view Mike needs to justify plucking one particular conception of jurisdiction from an opinion of Chief Justice Marshall, even if Marshall happened to be speaking about immigration.

The Citizenship Clause still leaves naturalization as an option for temporary visitors to the United States, but I doubt there is any more support for it in Congress now than there was in 1866.  Senator Fessenden was particularly concerned about that possibility, and soon after he raised that concern the Citizenship Clause was amended to clarify that granting U.S. citizenship to people would have the effect of granting state citizenship as well, but only in the "state wherein they reside."

01/26/2025

Steven Smith: Jurisdictional Diversity, Tradition, and the Religion Clauses
Michael Ramsey

Steven Douglas Smith (University of San Diego School of Law) has posted Jurisdictional Diversity, Tradition, and the Religion Clauses (53 pages) on SSRN.  Here is the abstract:

To the consternation of critics, the Supreme Court in recent establishment clause decisions has turned away from modern precedents and doctrines– the Lemon test, the “no endorsement” test– and has instead prescribed a return to “history” and “tradition,” or to “historical practices and understandings.”  The Court is correct to see the modern decisions and doctrines as a departure from earlier American history and tradition.  There is, however, one vital aspect of the tradition that the Court has not recognized or revived– namely, the tradition of allowing states and localities the freedom, within broad limits, to develop their own approaches to the relations between government and religion.  On the contrary, under the banner of an expansive (and, ironically, intrusively interventionist) “neutrality,” the Roberts Court has followed the example of its predecessors in imposing a uniform constitutional orthodoxy on states– a different orthodoxy, to be sure, but one that may be no less straitening than the secularist/separationist orthodoxy enforced by the Warren and Burger Courts.

Pleas for flexibility and “play in the joints” have come mostly from dissenting justices.  But these pleas do not reflect any affirmative commitment to constitutional decentralization or deference to states and localities in church-state matters.  Rather, they represent a “second best” or fallback strategy: lacking five supporting votes on the current Court, the separationist jurisprudence of the later twentieth century can no longer be imposed in imperial fashion on states; so the next best thing is to let states themselves persist in following the separationist position if they choose to do so.  In this respect, the dissenters’ pleas for flexibility and deference to states bear a resemblance to the post-Brown “states’ rights” rhetoric that was sometimes deployed as a strategy for resisting nationally-imposed racial desegregation.

Neither on the Court nor in the legal academy does there appear to be any serious appreciation for the affirmative virtues of the nation’s older tradition of jurisdictional diversity– of allowing states and localities, within limits, to forge their own distinctive paths through the tangled forests of church and state.  This lack of appreciation is unfortunate at a time when polarization, often directly or indirectly related to religion, threatens to tear the country apart.  And it exhibits an on-going disregard of tradition, even as the Court aspires to respect and return to tradition.

This article explains how the strategy of jurisdictional diversity was adopted in the Constitution and how that strategy prevailed for the Republic’s first century-and-a-half.  The article also explains how that strategy was forgotten or abandoned-- with unfortunate consequences (including jurisprudential incoherence). And in its laudable efforts to correct past errors and return to history and tradition, the Roberts Court has failed to appreciate the centrality of jurisdictional diversity in that tradition.  The article discusses how this strategy might be revived, and reflects on the promising but also fraught potential consequences of such a revival.

01/25/2025

Benjamin Keener: Bonham's Case and Judicial Duty
Michael Ramsey

Benjamin Keener (University of Pennsylvania Carey Law School J.D. '26) has posted Bonham's Case and Judicial Duty (67 pages) on SSRN.  Here is the abstract:

Bonham’s Case is perhaps one of the most famous cases in the common law tradition. It is also one of the most poorly understood. Chief Justice Edward Coke appears to endorse a power of judges to invalidate acts of Parliament that violate reason, natural law, or some other higher law. This reading is wrong. Proving why, however, has challenged the academy for the past hundred years. This paper takes up that labor.

Part I summarizes the case, the opinion, and the surrounding literature. Part II surveys the early modern conventions of statutory interpretation, including competing theories of voidance and hermeneutics deployed in contract and property law. Part III reconstructs Coke’s drafting process by focusing on the neglected prefatory clause of the famous passage (“And it appeareth in our Books, that . . .”). By focusing on the start of the famous passage, we find that Coke likely drew from his own theory of repugnant acts in The Case of Alton Woods. Part IV compares the two cases, showing that Coke intended the famous passage to be narrowly understood as limited to specific impossibility scenarios. Often overlooked is the role of confirmatory acts of Parliament, acts which traditionally receive special interpretive treatment. Part V, finally, assesses Coke’s essential judicial commitments and harmonizes his views in Bonham’s Case with his broader theory of judicial duty. Judges are obliged to apply the law of England, which sometimes aligns and sometimes does not align with the law of nature.

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

01/24/2025

Stephen Sachs: The Twelfth Amendment and the ERA
Michael Ramsey

Stephen E. Sachs (Harvard Law School) has posted The Twelfth Amendment and the ERA (47 pages) on SSRN.  Here is the abstract:

Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. After President Biden’s statement disregarding the deadline and describing the ERA as the Twenty-Eighth Amendment, its doubtful validity may provoke a minor constitutional crisis.

But there may be a legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to append.

This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any valid change to the Constitution’s text. The recent lobbying efforts on its behalf, including President Biden’s statements, are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost. The National Archives is the wrong place to play with fire.

The author will present this paper at the Originalism Works-in-Progress conference in San Diego in February, with comments from Thomas Schmidt (Columbia).

01/23/2025

John McGinnis & Michael Rappaport:The Constitution Neglected
Mike Rappaport

Over at Law and Liberty, John McGinnis and I have a review of Jonathan Gienapp’s new book Against Constitutional Originalism.  As with our review of his prior book, we are strongly critical of Gienapp’s argument:  

With his new book Against Constitutional Originalism, Stanford historian Jonathan Gienapp has garnered effusive praise from those eager to undermine the originalist enterprise. For those attracted to the originalist project, however, the book is unlikely to persuade. On the contrary, it highlights the persistent difficulties historians face when they venture into constitutional interpretation. Gienapp neglects the most primary of sources—the Constitution—its text, structure, and self-referential nature. He compounds this oversight by privileging mere disagreement among historical actors over rigorous evaluation of their arguments, a hallmark of legal reasoning. He also confuses objections to originalism as an interpretive method with objections to particular readings of the original meaning. Finally, Gienapp often fails to situate the Constitution in the transformative historical moment of its creation, particularly the Founders’ disillusionment with the unwritten British constitution. These deficiencies weaken his case and, ironically, reinforce the intellectual strength of originalism, which at its best rigorously takes account of text and context. 

As with his previous book, Gienapp fails to recognize that it is the document that is unambiguously the Constitution.  While we acknowledge that unwritten law may properly influence one’s interpretation of the Constitution, that does not mean that unwritten law is the Constitution. 

We also criticize Gienapp’s reading of the historical record:

It is puzzling that Gienapp, as a historian, also neglects the Framers’ historical experiences which would subvert his thesis. The colonists’ long struggle with Britain highlighted the perils of an unwritten constitution—because much of the debate with the British turned on what was the basic content of the unwritten British constitution. This instability shaped the Framers’ insistence on a written Constitution. They sought something less ambiguous, a fixed standard that could serve as a foundation for governance. The meticulous drafting process, involving the Committee on Detail and the Committee on Style, underscores this intent. Every word was weighed, every phrase scrutinized, to create a document that was as clear-cut as possible. Furthermore, the use of special conventions for ratification in both state and federal contexts demonstrates the Framers’ concern with making a written constitution the people’s fundamental law. Gienapp’s failure to grapple adequately with this context weakens his argument and leaves his critique unmoored from the realities of the Founding.

Further, we maintain Gienapp misunderstands originalism:

Gienapp’s characterization of originalism is shaky at times. He suggests that originalists disregard social concepts of the time in determining original meaning. But most originalists recognize the potential relevance of political concepts to understanding constitutional provisions. The real question is not whether such concepts matter, but how far they bear on meaning—a question originalists resolve through evidence and rigorous analysis.

There is much more in the essay.  As they say, read the whole thing.

Birthright Citizenship and Temporary Visitors
Michael Ramsey

Most commentary on President Trump's executive order regarding birthright citizenship has focused on its application to persons not lawfully present in the United States.  As I've argued at length elsewhere, I think the Constitution's original meaning requires citizenship for the children born in the United States, regardless of their parents' status.  I acknowledge in that article, though, that some other versions of originalism might not reach the same conclusion.  The current situation regarding undocumented migration is something the framers of the Fourteenth Amendment didn't experience and could not have foreseen, so an intent-oriented originalist might say that the Amendment was never intended to apply to undocumented migrants.  (That's not my version of originalism, so I don't think that.  But people who want to say that the Constitution clearly conveys citizenship on the children of persons not lawfully present in the United States need to explain why they favor my version of text-based originalism and not intent-based originalism.)

In this post I want to focus on the other part of the executive order that has been less discussed.  The executive order also denies citizenship to U.S.-born children of lawful temporary visitors: 

 It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons ... when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

I think this provision is not constitutional under any version of originalism.  First, the framers of the Fourteenth Amendment were, we may presume, fully aware of the question regarding the citizenship of children of temporary visitors.  That issue had been directly addressed in a relatively recent (for them) 1844 New York state case, Lynch v. Clarke.  The court, holding that the U.S.-born child of temporary visitors was a U.S. citizen under common law, observed: 

[B]y the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. . . .

and added with perhaps some overstatement:

I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, that the birth in this country does of itself constitute citizenship.

The 1848 edition of James Kent's widely-used treatise on American law discussed Lynch favorably.  (For citations and further discussion, see my article, notes 33-43).

Second, in drafting the Amendment, the framers used a phrase that, in the legal language of the time, included temporary visitors.  The Amendment states (as is well-known at this point):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. (emphasis added)

There is simply no doubt that temporary visitors, and by extension their children, were in the nineteenth century meaning subject to the jurisdiction of the United States.  Chief Justice Marshall directly addressed the situation of temporary visitors in The Schooner Exchange v. McFaddon (1812).  He began by saying that "[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute. . . . "  Although there were some exceptions (for foreign sovereigns and diplomats), Marshall explained that territorial jurisdiction did apply to temporary visitors:

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would
be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and not one motive for requiring it.

Justice Story made a similar point in his Commentaries on the Conflict of Laws (1834).  Emer de Vattel, the great eighteenth century writer on international law, observed that "foreigners who pass through or sojourn in a country, either on business, or merely as travellers” are “subject to the laws” of that country because “[t]he sovereignty is the right to command
the whole country; and the laws are not simply confined to regulating the conduct of the citizens towards each other, but also determine what is to be observed by all orders of people throughout the whole extent of the state.”  (Citations at notes 153-156 of my article).

In sum, "subject to the jurisdiction" (or "amenable to the jurisdiction," as Marshall put it) meant subject to the nation's laws.  Foreign sovereigns and diplomats were not subject to U.S. laws (as Marshall held in McFaddon) because they had immunity, but temporary visitors were.

Thus we can be confident that (a) the Framers knew about the issue of U.S.-born children of temporary visitors, and knew from Lynch and Kent's Commentaries that the common law generally treated them as U.S. citizens; and (b) the Framers chose language ("subject to the jurisdiction") that they knew paralleled language leading commentators had used to describe the legal status of temporary visitors.  It follows that the Framers of the Fourteenth Amendment intended to give citizenship to the children of temporary visitors.  And it is not implausible to think they did, since that simply constitutionalized the general common law rule.

(Aside:  co-blogger Andrew Hyman has an interesting contrary take on the Amendment's language focused on the phrase the "the State wherein they reside."  But I'm not persuaded.)

01/22/2025

Michael Showalter: The Supreme Court Versus the Construction Zone
Michael Ramsey

Michael Showalter (Independent) has posted The Supreme Court Versus The Construction Zone: The Justices Reject Law-Runs-Out Theory (George Mason Law Review, forthcoming) (19 pages) on SSRN.  Here is the abstract:

We’re all originalists and textualists now—when the text is clear.  But there remains deep disagreement about whether original understanding controls when legal text doesn’t provide an incontestably clear answer.  The U.S. Supreme Court’s Chevron doctrine, for example, held that a legal question of interpretation becomes a policy question whenever a statutory text has multiple reasonable readings.  Justice Elena Kagan elaborated this theory in 2019, asserting that when there is interpretive uncertainty, the law has “run out” and “policy-laden choice” is all that is left.  And some constitutional theorists have similarly asserted that interpretive uncertainty means that the law has “run out” and judges must enter a “construction zone” in which “political,” “normative” considerations apply.

In a series of Summer 2024 cases, the Supreme Court forcefully rejected the law-runs-out theory.  Overruling Chevron in Loper Bright v. Raimondo, the Court reestablished the constitutional principle that the interpretation of legal text always concerns law and not policy.  Judges facing uncertainty about statutory meaning, the Court wrote, may not “throw up their hands” because the law has “supposedly ‘run out.’”  Three days later, the Court practiced this principle in Corner Post v. Federal Reserve by focusing exclusively on law despite interpretive disagreement.  The lower courts had focused on policy concerns rather than statutory text, and at oral argument Justice Kagan defended the lower courts by asserting that “there’s not much in the text to look at.”  But the Court’s majority opinion methodically examined the linguistic meaning, background cluster of ideas, and precedent surrounding the pertinent statutory phrase.  The concurring opinions in United States v. Rahimi, meanwhile, reject law-runs-out theory in the constitutional context.

The Supreme Court rejected law-runs-out theory because Chevron, Justice Kagan, and law-runs-out scholars could not reconcile law-runs-out theory with the Loper Bright justices’ originalist commitments.  The modern originalist movement began as a counterrevolution against perceived judicial policymaking.  A theory compelling judicial policymaking, therefore, was never likely to succeed at this Court.

01/21/2025

Andrew Hyman: Originalism, Illegal Immigration, and the Citizenship Clause
Michael Ramsey

Andrew Hyman (independent) has posted Originalism, Illegal Immigration, and the Citizenship Clause (30 pages) on SSRN.  Here is the abstract:

The Citizenship Clause of the Fourteenth Amendment does not apply in cases of illegal immigration, but the arguments for that principle are not monolithic. The best reading of the original understanding in the 1860s is roughly this: the Clause impliedly requires domicile in the United States, domicile in turn requires at least local allegiance, but people who have not been received into the U.S. cannot pay any allegiance, so the dilemma is avoided by requiring domicile de jure — that is, the domicile must be legal. This dichotomy between de jure and de facto domicile was well-known in the 1860s. In cases of illegal immigration, citizenship should be sought via naturalization. Intertwined with birthright citizenship is the Clause’s guarantee of state citizenship, and scholars are right who say Washington D.C. is out of compliance, because Congress has not ensured state citizenship there. 

RELATED: Trump to end birthright citizenship for children of illegal immigrants, halt refugee flow.

UPDATE:  Here is the executive order.  It also applies to U.S.-born children of lawful temporary visitors.

01/19/2025

Fred Smith: Younger and Older Abstention
Michael Ramsey

Fred O. Smith, Jr. (Emory University School of Law) has posted Younger and Older Abstention (123 Mich. L Rev. ___ (2025), forthcoming) (55 pages) on SSRN.  Here is the abstract:

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court's emphasis that abstention is a narrow exception to federal courts' duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of "free-floating federalism," diverging from the Supreme Court's careful balance between comity and individual rights. This has led to a significant expansion of criminal abstention doctrine in lower courts, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pre-trial detention and child-welfare proceedings. 

Given the federal judiciary's increased emphasis on tradition in interpreting contemporary equitable remedies, this Article contrasts these novel expansions with historical equitable practices. While the doctrine of criminal abstention is now known as "Younger abstention" after the 1971 case Younger v. Harris, criminal abstention and its core exceptions have roots in centuries-old equitable proceedings in both the United States and England. Historically, courts of equity intervened in ongoing criminal proceedings when those proceedings were inadequate to redress harm and when irreparable harm would otherwise result. Moreover, in the decades after the Fourteenth Amendment, federal courts similarly balanced federal constitutional rights against state interests in ways that accounted for a federal judicial role in ending great irreparable harm. The most recent lower court expansions of the doctrine are in severe tension with that tradition.

I find the argument intuitively appealing, because (as discussed here in an entirely different context) I think federal courts have an obligation to hear (at least) constitutional and federal statutory claims absent a near-founding era practice to the contrary.  So I think the presumption is against abstention and related doctrines.  I'm not sure how that affects Younger abstention though.

01/18/2025

Mark Storslee: History and the School Prayer Cases
Michael Ramsey

Mark Storslee (Emory University School of Law) has posted History and the School Prayer Cases (110 Va. L. Rev. 1619 (2024)) (87 pages) on SSRN.  Here is the abstract:

In a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent legal developments have rendered those decisions unstable. And with the Court’s recent turn to “historical practices and understandings,” many question whether the School Prayer Cases can possibly survive.

It is too soon to tell where the Court’s renewed focus on Founding-era history might lead. But this Article contends, contrary to both some originalist Justices and their critics, that a focus on history does not spell the end of the School Prayer Cases. On the contrary, it may well place those decisions on firmer ground.

In a recent opinion, the Supreme Court observed that state-sponsored school prayer bears some relation to at least one “hallmark” of Founding-era establishments—namely, laws requiring citizens to attend worship in the established church. Contrary to what some Justices have suggested, however, the problem with these Founding- era laws was not that they lacked exemptions for dissenters. Rather, for the Founding generation, laws mandating attendance at state- sponsored worship were objectionable, opt-outs or no, because such laws exceeded the government’s rightful authority. On this view, the key feature of the School Prayer Cases is not the presence or absence of exemptions or proof of individual coercion. Instead, it is the government’s claimed right to mandate attendance at worship in the first place, no matter how tolerant the scheme. And understanding that point may offer important insight into larger questions about the propriety and limits of government-sponsored prayer, inside as well as outside of public schools.

01/17/2025

Balkinization Symposium on Curtis Bradley's "Historical Gloss and Foreign Affairs"
Michael Ramsey

At Balkinization, a symposium:

This week at Balkinization we are hosting a symposium on Curt Bradley's new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

We have assembled a terrific group of commentators, including Elena Chachko (Berkeley), Kristen Eichensehr (Virginia), Richard Fallon (Harvard), Jean Galbraith (Penn), Michael J. Gerhardt (UNC), Marty Lederman (Georgetown), Julian Davis Mortenson (Michigan), Jide Nzelibe (Northwestern), and Michael Ramsey (San Diego).

At the conclusion, Curt will respond to the commentators.

Here are the first two posts:

Elena Chachko: History and the Separation of Powers

Michael D. Ramsey, Historical Gloss and Originalism

01/16/2025

Lawrence Solum & Randy Barnett: Originalism and the Party Presentation Principle
Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) & Randy E. Barnett (Georgetown University Law Center) have posted Originalism and the Party Presentation Principle (43 pages) on SSRN.  Here is the abstract:

The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.

For originalists, the importance of party presentation is clear in cases where the parties fail to present originalist arguments and the Supreme Court therefore decides the case on the basis of precedent, historical practice, and tradition, or constitutional values—factors that living constitutionalism substitutes for original meaning. With original meaning banished, the result can be a decision with an outcome, holding, and reasoning that is inconsistent with the original meaning of the constitutional text. And lower courts may view the Court’s nonoriginalist decision as foreclosing any further consideration of originalist arguments, not only on the narrow issue actually decided by the Court, but on adjacent issues to which the Court’s reasoning is relevant.

In Part I, we briefly discuss originalism and its rivals. In Part II, we summarize existing party presentation doctrine and explore the many unresolved questions about the shape of the principle. Next, in Part III, we consider the interaction between party presentation and precedent. In Part IV, we articulate an originalist approach to party presentation, including what we see as the first best approach to party presentation—the originalist version of the principle is minimalist—and an originalist approach to precedent shaped by the principle. Finally, in Part V, we apply the framework that we develop to the party presentation in the Supreme Court, the lower federal courts, and state supreme courts—and for appellate advocates, especially repeat players among the Supreme Court bar. There is, of course, a conclusion.

The authors will present this paper at the Originalism Works-in-Progress conference in San Diego in February, with commentary from Tara Grove (Texas).

01/15/2025

Josh Blackman on Jack Smith on Insurrection
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Jack Smith Explains Why He Did Not Charge Trump With Insurrection.  From the introduction and beginning of the analysis: 

Attorney General Merrick Garland has released Volume I of Jack Smith's report, which focuses on the January 6 prosecution of Trump. Smith addresses one of the lingering questions: why did he not charge Trump with violating the federal insurrection statute (18 U.S.C. § 2383). In early 2021, Seth Barrett Tillman and I wrote an article anticipating a prosecution based on Section 2283, but that case would never come.

First, Smith explains that there was no clear definition under federal law for an "insurrection." He acknowledges that the Colorado Supreme Court found that the attack on the Capitol was an insurrection as that term was used in Section 3. Likewise, some federal courts in D.C. described the attacks as an insurrection. "These cases, however, did not require the courts to resolve the issue of how to define insurrection for purposes of Section 2383, or apply that definition to the conduct of a criminal defendant in the context of January 6."

During the Section 3 debates, Will Baude, Mike Paulsen, and many others, thought it was perfectly clear what an insurrection was, and that January 6 was clearly an insurrection. Smith did not think the issue was so clear. Seth Barrett Tillman and I also did not take a position on this question.

Second, Smith did not think there was enough authority to distinguish an insurrection from a riot:

The Office recognized why courts described the attack on the Capitol as an "insurrection," but it was also aware of the litigation risk that would be presented by employing this long-dormant statute. As to the first element under Section 2383-proving an "insurrection against the authority of the United States or the laws thereof'-the cases the Office reviewed provided no guidance on what proof would be required to establish an insurrection, or to distinguish an insurrection from a riot. ...

(And there are four more points.)

I was likewise skeptical that it was as obvious as some people said that President Trump engaged in insurrection.  I also thought the matter should be resolved through a federal prosecution (or non-prosecution) instead of piecemeal on a state-by-state basis, as I discussed here.

01/14/2025

Aditya Bamzai: Sanctions and the Emergency Constitution [Updated]
Michael Ramsey

Aditya Bamzai (University of Virginia School of Law) has posted Sanctions and the Emergency Constitution (172 University of Pennsylvania Law Review 1917 (2024)) (38 pages) on SSRN.  Here is the abstract:

The Trading with the Enemy Act of 1917—or the “TWEA”—is the precursor to the modern statutory sanctions framework of the United States. Though significantly amended since its passage—and even replaced in part by a successor statute, the International Emergency Economic Powers Act of 1977—the TWEA’s origins are important both to an understanding of modern sanctions law and to an understanding of the development of American governance. In enacting the TWEA, Congress sought to codify aspects of preexisting prize and trading-with-the-enemy cases. This Article explores the cases that formed the backdrop against which Congress enacted the TWEA, as well as relevant aspects of the TWEA’s drafting history. It examines the cases that emerged in the aftermath of the TWEA’s passage, especially those that confronted Congress’s later decision to make TWEA applicable in times of “national emergency,” as well as in times of “war.”

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