08/04/2020

Ethan Leib & Andrew Kent: Fiduciary Law and the Law of Public Office
Michael Ramsey

Ethan J. Leib (Fordham University School of Law) and Andrew Kent (Fordham University School of Law) have posted Fiduciary Law and the Law of Public Office: Suggestions for a Research Agenda (William & Mary Law Review, forthcoming) (46 pages) on SSRN.  Here is the abstract:

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law — defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations — imposed core duties on public officeholders: Officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Office-holding came to be viewed as conditional, with officers removable for misdeeds. This law of public office reflected something that looks similar to modern fiduciary duties of loyalty and care.

In this Essay, we extend the historical record describing this law of public office, and make several new claims — historical and theoretical. First, there are strong reasons to suspect that the law of public office and private fiduciary duties developed together and influenced each other. During the critical centuries we explore, the duties of officeholders such as trustees, executors, and corporate directors were developing alongside the duties of officials such as tax collectors and government commissioners. Parliament and other actors repeatedly used the language of trust, trusteeship, guardianship, and account to define the law of public offices. And public law concerns about abuse of power and the need for honesty, fidelity, and altruism in service of others may have seeped from public law into private fiduciary law. Influential political theory about the monarchy and lesser magistrates was also using trust and related legal language to set forth a fiduciary conception of public office-holding; the theoretical developments in political theory not only drew from legal concepts but may have helped shape them, as well.

One Essay cannot decisively establish whether the similarities in language, concept, and timing were mere coincidence or rather evidence of some conscious co-development in the law of public offices, political theory, and fiduciary law. Proving (or disproving) actual causal relationships will need to be the work of the future. We conclude with some potential implications for our research agenda, should further work continue to confirm our findings here. Fiduciary political theorists should be less anxious about drawing from private law models — and private law fiduciary theorists might need to be less insistent on the purity of the private sphere. As we show, during the critical periods when fiduciary law and the law of public office come into their own, the public-private distinction wasn’t yet creating the divide that exists today. Our research agenda invites more mutual learning — both historically and for law and institutions today.

08/03/2020

Professor Lawrence Solum Joins UVA Law Faculty
Michael Ramsey

From the University of Virginia's news website, Eric Williamson: Legal Theorist Lawrence Solum To Join Law Faculty.  On Professor Solum's originalist scholarship: 

Solum is an originalist, seeking to divine the meaning of the language in the Constitution as it was understood at the time of its creation, more than 200 years ago. Integral to his personal approach is “the idea that originalists should employ all of the resources of linguistics and the philosophy of language in order to rigorously investigate what the constitutional text meant,” he said.

In 2017, he testified before Congress in accordance with his views as part of the confirmation process for U.S. Supreme Court Justice Neil Gorsuch.

But what makes Solum different than many of his originalist peers is that he’s not a conservative, nor does he believe that the originalism school of thought always translates as contrary to a progressive judiciary. His research has found that originalism sometimes leads to liberal and progressive outcomes, as he reveals in his article “Surprising Originalism.” [Ed.: I think most if not all originalist scholars agree with this proposition.]

(Via How Appealing.)

Professor Solum was previously at Georgetown law, along another noted originalist Randy Barnett.  At UVA, he joins originalist-oriented scholars Saikrishna Prakash, John Harrison and Caleb Nelson, among others.

How many other top law faculties have even one originalist-oriented scholar?

08/02/2020

John Witte: Historical Foundations and Enduring Fundamentals of American Religious Freedom
Michael Ramsey

John Witte (Emory University School of Law) has posted Historical Foundations and Enduring Fundamentals of American Religious Freedom (Journal of the Society of Christian Ethics 33 (2020): 156-167) (13 pages) on SSRN.  Here is the abstract:

The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom – freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no state establishment of religion. Since the 1940s, the United States Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This Essay calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.

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

08/01/2020

Ryan Williams: Personal Jurisdiction and the Declaration of Independence
Michael Ramsey

Ryan C. Williams (Boston College Law School) has posted Personal Jurisdiction and the Declaration of Independence (53 pages) on SSRN.  Here is the abstract:

The Declaration of Independence accuses the King of having “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.” But despite the seemingly natural resonance of this particular charge with the legal profession, legal scholars have displayed remarkably little interest in exploring its factual foundations. This Essay traces the colonists’ complaint to a somewhat surprising and unexpected source — a dispute about personal jurisdiction.

During the late eighteenth century, the administrative officials responsible for overseeing Britain’s North American possessions adopted an increasingly restrictive view of judicial jurisdiction, seeking to stamp out the custom of foreign attachment of nonresidents’ property that had proliferated throughout the colonies. The elected officials of North Carolina pushed back against the Crown’s efforts to deprive them of their privilege of foreign attachment by refusing the Governor’s insistence that a provision authorizing the procedure be stricken from a bill renewing authorization for the colony’s court system. The resulting impasse effectively terminated judicial authority in North Carolina and left the residents of the Colony without a fully functioning court system for more than three years. The Declaration of Independence, drafted amidst the North Carolinians’ showdown over foreign attachment, incorporated their complaint as one of the twenty-eight charges of royal abuse that the colonists claimed justified their claim to independence.

Ironically, the restrictive ethos that animated Britain’s late eighteenth-century hostility to foreign attachment and that provided the grounds for the colonists’ complaint finds echoes in the modern Supreme Court’s restrictive approach to personal jurisdiction. This Essay uses the experience of the Founding-era showdown over personal jurisdiction as a lens through which to examine modern efforts by the Court to cut back on the jurisdictional reach of state courts. Although this Essay does not propose a specific framework to replace the Court’s existing doctrine, it urges the Court to abandon its defendant-centric emphasis in favor of an approach that gives more meaningful credence to the sovereign interests of the respective states in determining the jurisdictional reach of their own courts.

07/31/2020

Donald Drakeman: Is Corpus Linguistics Better than Flipping a Coin?
Michael Ramsey

Recently published, in the Georgetown Law Journal Online, Donald L. Drakeman (Notre Dame): Is Corpus Linguistics Better than Flipping a Coin? (109 Geo. L.J. Online 81 (2020)). Here is the abstract:

Corpus linguistics offers the promise of “Big Data” solutions to difficult issues of constitutional interpretation. By searching the millions of words in COFEA, the Corpus of Founding-Era American English, scholars have reached what they have described as rigorous, reliable, and reproducible conclusions about the original meaning of the Constitution. These conclusions rely on unexamined assumptions about the nature of the database and the reliability of the methods employed for interpreting the data. This Article is the first to analyze those assumptions, and it shows why digital searches in COFEA are unlikely to be more accurate than flipping a coin. An understanding of these methodological assumptions will enable researchers to make the necessary adjustments to increase the odds of success in the future.

And from the introduction (footnotes omitted):

“Originalism is on the cusp of its own Big Data revolution,” declares Lee Strang, noting that “[f]or the first time, both a body of data of the Constitution’s original meaning and the technology to utilize that data are becoming available.” Legal scholars started this revolution by borrowing a fascinating tool from their colleagues in language, literature, and history—large digital compendia of written texts associated with the field of corpus linguistics2—with the aim of using targeted digital searches to discover the meaning of constitutional terms in the Founding era. Rather than relying on the limited information available in the few relevant dictionaries, or going through the painstaking process of finding and reading the statutes, legislative debates, newspapers, legal cases, novels, almanacs, and other materials making up the documentary record of the latter part of eighteenth-century America, scholars can perform computer searches in databases consisting of thousands of texts and millions of words. Originalism can now be “datadriven,” “scientific,” and “rigorously empirical.”

...

Strang is certainly right about two things: We have digitized collections of texts representing language use in the constitutional era and the technology to access them on a word-by-word basis. The remaining essential questions are whether those collections are genuinely representative and whether we have the necessary data-analysis tools to make sense of all of the resulting information in a way that clearly points towards an accurate understanding of the objective meaning of the text. As Strang observes, there are some cases where the technological approach may not eliminate the possibility of inaccuracy, and whether tools of corpus linguistics can deliver a single clear original public meaning will need to be evaluated on a clause-by-clause basis.

In practice, corpus linguistics searches for the Constitution’s original meaning have often sought to select one of two possible meanings. For example, is “religion” in the First Amendment limited to theism? Did the terms “commerce” and “emoluments” carry a broad or narrow definition? The goal has been to determine the answer objectively and empirically through a Big Data analysis of language use in the Founding era. For the sake of argument, and to highlight the key role of assumptions in applying this methodology to constitutional interpretation, I will propose an alternate approach to resolving lawsuits that has the advantage of being equally or more objective, while also being faster, cheaper, and a great deal less complicated: flipping a coin, for which the odds of an accurate answer to these kinds of binary questions is 50%. Moreover, as with other approaches to the search for original meaning, coin flipping would go a long way towards addressing one of the jurisprudential issues frequently cited by advocates of originalism—that is, the need to restrain judges from making decisions based on their own preferences. Despite its numerous advantages, coin flipping in cases of constitutional interpretation is normatively weak compared to the promise of scientifically based results. It is hard to imagine that an interpretive theory would be adopted by the Supreme Court if cases involving the interpretation of texts with contested original meanings would be decided by a coin toss or by any other method that could not make a better claim of accuracy than randomly being right half of the time.

Is corpus linguistics likely to be accurate more than half of the time? This Article will show that, in a number of important ways, corpus linguistics may not be up to the assigned task (at least yet), despite the sophisticated constitutional analyses that have appeared so far. The problems are not rooted in the impressive research done by scholars to date but in the historical and methodological assumptions they are making when they set out to use corpus linguistics databases for the purpose of constitutional interpretation.

Professor Strang's article is How Big Data Can Increase Originalism’s Methodological Rigor: Using
Corpus Linguistics to Reveal Original Language Conventions, 50 U.C. Davis L. Rev. 1181 (2017), available here.

07/30/2020

Ilan Wurman on what Originalism Conserves
Michael Ramsey

At Law & Liberty, Ilan Wurman (Arizona State): What Originalism Conserves.  From the introduction:

For many decades, the Supreme Court has assumed that the Constitution must change with the times. In the words of Justice William Brennan, “current Justices read the Constitution in the only way [they] can: as twentieth [now twenty-first] century Americans.” This notion of “living constitutionalism”—the idea that we aren’t strictly bound by the meaning a constitutional provision might have had when it was enacted—has resulted in landmark Supreme Court decisions in many areas of law. The Miranda rights made popular by television and the right to a government-paid criminal defense lawyer; the expansion of federal power under the Commerce Clause since the New Deal; the creation of independent administrative agencies; and the Supreme Court’s reasoning in Roe v. Wade and Obergefell v. Hodges—all arguably depend on living constitutionalism.

In response to some of these “liberal” decisions, conservatives articulated and advanced an alternative theory of constitutional interpretation in the 1970s and 80s: originalism, the commonsense notion that we are bound by the original meaning of the Constitution’s text, and that judges shouldn’t update that text’s meaning. But it would be a mistake to associate originalism only with its modern-day political defenders and abandon it to the extent to which it does not serve the interests of modern-day conservatives.

For one thing, originalism is not an invention of the 1970s; it was with us from the beginning, at least until living constitutionalism began to take root in the progressive era. Here is John Marshall in Gibbons v. Ogden: “As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense . . . .” And here is James Madison in an 1824 letter to Henry Lee: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”

More significantly, the theoretical defenses of originalism have never depended on its political results although, to be sure, there is some connection between conservatism and originalism that is worth defending (as I shall explain shortly).

Rather, the argument for originalism can be established in two steps, or by answering two questions, both of which are largely apolitical ...

07/29/2020

Congressional Self-Delegation in FOMB
Chris Green

The PROMESA case from last month, Financial Oversight and Management Board v. Aurelius Investment, unanimously turned back an Appointments Clause challenge to the composition of the board governing Puerto Rico’s bankruptcy. I mentioned earlier that Justice Breyer treated subsequent history in a much more originalism-friendly way than he had for the Court in Noel Canning. But it seems to me that the FOMB runs very straightforwardly afoul of the Court’s cases forbidding congressional self-delegation: Chadha, Bowsher, and especially the application of Chadha and Bowsher to DC government--independent of the Appointments Clause--in Municipal Washington Airport Authority

Five of the six members of the FOMB are chosen by the President from lists composed by congressional leaders (two lists for the Speaker and one list each for the minority leader of the House and majority and minority leaders of the Senate). While Justice Breyer notes the procedure in passing (and Justice Sotomayor’s concurrence in the judgment gives more detail), the Court never explains why this sort of congressional self-delegation is OK under Chadha, Bowsher, and MWAA.

The power to compose the lists from which the President may choose is, of course, far more important than the President’s selection power itself. Imagine a Democratic President allowed to select a Justice from among President Trump’s list of Supreme Court candidates: it’s obviously not nearly as significant as the power to create that list in the first place!

The size of the congressional self-delegation in PROMESA isn’t the main issue, though. Rather, it’s just not the sort of ex officio power that Congress may give to the Speaker or other congressional officers under MWAA.  The Court explained straightforwardly in MWAA: “If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7.” Indeed, the FOMB Court notes at page 19 that MWAA was a Chadha/Bowsher case, rather than an Appointments Clause one. But if the Chadha/Bowsher ban on congressional self-delegation applies even to appointments that might fall outside the Appointments Clause, it condemns the FOMB even if the Court is right about whether its members are “officers of the United States.” 

Larry Solum's Legal Theory Lexicon on "The New Originalism"
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon has an updated entry for "The New Originalism."  From the introduction:

This entry in the Legal Theory Lexicon focuses on what is called "New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, "New Originalism" refers to a cluster of originalist theories that reject a set of ideas from older originalist theory, including (1) original intent originalism (in the form that focuses on the application preferences of the Framers) and (2) the idea that the application beliefs of the Framers are binding. 

Many New Originalist theories also endorse the following two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. But some theorists who are called "New Originalists" endorse other theories of original meaning, such as "original methods originalism" and reject the idea the there the constitutional text is substantially underdeterminate.

I'm not sure if this description is revised from earlier versions of the Lexicon, and I'm not sure if it's the best way to describe "New Originalism."  If it is, then the founder of "New Originalism" is really Justice Scalia, in his 1986 speech "Original Meaning" (available, among other places, in Christopher Scalia and Ed Whelan's compilation of his speeches, "Scalia Speaks," p. 180).  Among other things, on this definition "New Originalism" is not so new.  But also, I think the newer development in originalist theory is the idea of the interpretation/construction distinction, which Professor Solum says some but not all "New Originalists" endorse.  So in contrast I tend to think of "New Originalism" as specifically referring to the idea of the interpretation/construction distinction.  People like Justice Scalia, who embraced original meaning but rejected construction, don't really seem like "new" originalists to me. 

I would suggest (as I have in the past) three categories of originalism:

(1) Original intent (for example, scholars such as Larry Alexander and Richard Kay, plus Judge Bork)

(2) Original meaning (Justice Scalia, scholars such as Michael Paulsen, Gary Lawson, Michael Rappaport and John McGinnis)

(3) Original meaning plus interpretation/construction distinction (scholars such as Randy Barnett, Keith Whittington and Professor Solum).

I would call only category (3) "New Originalism" (although, as the Lexicon says, these are "just names that carve up the theoretical landscape," so as long as it's clear how they are being used, the particular labels do not matter so much).

The entry continues with a number of additional important points, including this one: 

The New Originalism has given to a new set of disputes, both within originalism and between originalists and nonoriginalists.  From the conservative side some theorists who might be called "new originalists," have focused on restraint and constraint. John McGinnis and Michael Rappaport have argued that constitutional construction is unnecessary. Their argument reflects their distinctive version of originalism, “Original Methods Originalism.” They argue that by using the original methods of constitutional interpretation, judges can eliminate or almost eliminate ambiguity and vagueness.

A different approach to the problem of constraint has been developed by Gary Lawson and Michael Paulsen. They each argue that the problem of vagueness can be solved by a principle of judicial restraint. When the text is vague or ambiguous, judges should defer to the decisions made by elected officials. So even if there is a “construction zone,” there is no need for judicial discretion or morally informed decision making.

Again repeating what I've said before, I don't think the Lawson/Paulsen position here is properly understood as deference to the decisions of elected officials.  Rather, I think it is a matter of authority.  Courts have authority to override the decisions of elected officials only when the Constitution provides that authority.  When the Constitution is indeterminate, that authority is lacking.  Judges don't "defer" to anyone; they simply fail to find the authority to act. (Of course, it is a matter of dispute how indeterminate the Constitution must be for judges to lack authority to act.)

This is also a key point:

Another line of progressive criticism suggests that the New Originalism no longer provides sufficient constraint and restraint to serve as a real rival for Living Constitutionalism. Thomas Colby has made a version of this argument, and a similar argument has been advanced by Peter Smith. Together, Colby and Smith have also argued that new versions of originalism are so varied in content that it no longer makes sense to think of originalism as a coherent constitutional theory.

I think this criticism has some force against some versions of New Originalism (as Professor Solum defines it) but less against others.

07/28/2020

Francis Joseph Mootz: At Play in the Fields of the Law
Michael Ramsey

Francis Joseph Mootz (University of the Pacific - McGeorge School of Law) has posted At Play in the Fields of the Law (The Philosophy of Play (Jeremy Sampson, ed., Vernon Press 2021, forthcoming) (17 pages) on SSRN.  Here is the abstract:

Hans-Georg Gadamer famously uses the metaphor of play to illustrate the ontological nature of understanding. Under his account, a reader seeking to understand a text brings her horizon of pre-understanding into dialogue with the unfolding effective-history of the text. The resulting to-and-fro, which exhibits “the logic of question and answer,” is playful in nature. Prejudgments are refined, amended or abandoned in the process. Gadamer concludes that the best experience of coming to understand is ordinary conversation, in which two participants learn through a ludic give-and-take.

Gadamer also argues that legal practice has exemplary significance for his philosophical hermeneutics, which would appear to mean that legal practice is an estimable instance of play in action – of playfulness. But, can we take this claim seriously? Would any person who has been caught up in the justice system regard law as “playful” and “conversational?” Sandy Levinson offers a witty retort: “As Chairman Mao pointed out, a revolution is not a tea party, and the massive disruption in lives that can be triggered by a legal case is not a conversation.” Robert Cover emphasizes the point more dramatically with one of the most noteworthy opening lines of a law review article: “Legal interpretation takes place in a field of pain and death.” In this chapter I reject the criticism that Gadamer fundamentally misunderstands the serious nature and effect of legal interpretation in his work and argue that legal practice does indeed exemplify his ontological claim that understanding results from being-at-play.

I unfold my argument in five parts. First, I provide a close reading of Gadamer’s account of play to explore the contours of this central metaphor. Second, I discuss how Gadamer situates the phenomenological experience of “being played” within a larger frame. Play is not just a random experience of giving oneself up to an amorphous playful exchange. Rather, it is structured such that the play is experienced as an event, often in a ritualistic frame. There is a seriousness about play to which we must attend. Third, I connect play to legal practice. Gadamer does not directly describe how legal interpretation is “playful,” and so it is necessary to recreate his implicit argument. Fourth, I develop the implications that Gadamer’s layered analysis of play, ritual and event holds for contemporary jurisprudential debates engendered by “new originalism,” which seeks to locate legal meaning as a fixed element of the past that is not amendable to contemporary playful interpretation. I argue that judgment is the heart of legal practice, and judgment is the product of play. Contemporary originalist theorists seek to impose the rigors of empirical science on legal meaning. This approach founders on ontological shoals, because legal practice is a structured play that is realized in discrete events that participate in ritualistic belonging.

Finally, I conclude that the ethic of play is much more demanding than one might assume. My claim that legal practice is playful by nature is a deeply serious assertion that has important ethical implications that extend far beyond a naive view of play as a frivolous indulgence. If we adopt Gadamer’s ontological argument, we must accept that our nature as interpretive beings implies an ethic of understanding, a challenging call of conscience to which we must respond. The ethic of lawyering well is intimately linked with the playful character of understanding. This is not a regrettable admission that legal practice is unconstrained. Quite the contrary, the ludic ethic of legal practice is the ground of the rule of law and therefore a critical foundation for social life.

07/27/2020

Josh Blackman on the Calvary Chapel Decision
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: The Three Dissents in Calvary Chapel Dayton Valley v. Sisolak.  From the introduction (aside: it's a great post and excerpts can't do it full justice):

In Nevada, restaurants, bars, casinos, and gyms are allowed to operate at 50% of their capacity. However, houses of worship are capped at fifty people, regardless of their capacity. On May 22, 2020, the Calvary Chapel Church in Nevada challenged the Governor's emergency directives. The district court denied a TRO on June 11. The church appealed to the Ninth Circuit. That appeal was denied on July 2. On July 8, the church filed an application for injunctive relief with the Supreme Court. The briefing on that case concluded on July 16. Eight days later, the Supreme Court denied the application in Calvary Chapel Dayton Valley v. Sisolak, an unsigned per curiam opinion. Justices Thomas, Alito, Gorsuch and Kavanaugh dissented, and would have granted the injunction. By the process of elimination, we can conclude that Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny the injunction.

...

This post will walk through the dissents. I will start with Justice Kavanaugh's dissent, which I consider the strongest of the three.

And on Justice Kavanaugh's dissent:

I think this opinion is his strongest effort since he joined the Court. He brings a clarity to this litigation that has been sorely lacking. Part I of his opinion is six pages. I encourage you to read the entire section. Here, I will briefly summarize it.

Kavanaugh identifies four categories of religion cases:

(1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations.

...

The fourth category is the most significant, and relevant to the COVID litigation. Kavanaugh explains:

Fourth are laws—like Nevada's in this case—that supply no criteria for government benefits or action, but rather divvy up organizations into a favored or exempt category and a disfavored or non-exempt category. Those laws provide benefits only to organizations in the favored or exempt category and not to organizations in the disfavored or non-exempt category.

I have described the COVID orders in very similar terms. The decision to slot some secular activities into the favored category, and religious activities into the disfavored category, reflects an unstated value judgment.

...

Kavanaugh makes this point forcefully. He writes:

Nevada's rules reflect an implicit judgment that for-profit assemblies are important and religious gatherings are less so; that moneymaking is more important than faith during the pandemic.

I wholeheartedly agree. Kavanaugh explains that the starting point is that religious institutions should be given the same favorable status that other organizations are given. This principle should be the default rule. To depart from this default rule, the state needs to provide a sufficient justification.

Agreed.  Although Justice Kavanaugh and Professor Blackman make largely doctrinal arguments, I think this is right from an originalist perspective as well.  Whatever else the free exercise clause means (and whatever one thinks of Employment Division v. Smith), the core original meaning is that government can't disfavor religion in a way that impedes its exercise.

Indeed, I'm not sure (from an originalist perspective, not a doctrinal perspective) why the rule should be that the government can't disfavor religion in a way that impedes its exercise without a "sufficient justification."  Why isn't the rule that the government can't disfavor religion in a way that impedes its exercise, period?

Professor Blackman goes on to criticize Justice Gorsuch's separate dissent as overly simplistic.  But maybe it's not.  Here it is, in its entirety:

This is a simple case. Under the Governor’s edict, a 10-screen “multiplex” may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

07/26/2020

John Grove Reviews Alin Fumurescu's "Compromise and the American Founding"
Michael Ramsey

At Law & Liberty, John G. Grove: Who Are “We The People” Anyway? (reviewing Alin Fumurescu [Houston, Political Science], Compromise and the American Founding: The Quest for the People’s Two Bodies (Cambridge University Press 2019).  From the introduction: 

"The king is dead. Long live the king!" This seemingly contradictory proclamation made upon the death of a monarch encapsulates the theory of the “king’s two bodies.” The medieval concept differentiated between the king as a physical human being, mortal and capable of error, and the king as the body politic, “a Body that cannot be seen or handled, consisting of Policy and Government, and constituted for . . . the Management of the public weal,” as Elizabeth I’s lawyers put it. Upon the death of the old monarch, this public body immediately took residence in the new king, along with his physical presence.

In his recent book, Compromise and the American Founding: The Quest for the People’s Two Bodies, Alin Fumurescu argues that the notion of “two bodies” extends far beyond the age of kings. Assistant Professor of Political Science at the University of Houston, Fumurescu makes a strong case that the American founding—stretching from the Puritan settlements to the Civil War—can be understood as an extended working out of two rival conceptions of “the people” which reflect these same conceptions of the king.

The People’s Two Bodies

The first body corresponds to the physical body of the king: the people conceived of as a collection of equal individuals, united for their own interests and moving, as Locke put it, “whither the greater force carries it,” i.e. by the majority. This body generally reflects liberal social contract theory. Because of its reliance on majority rule, this is generally what we mean when we refer to the majority or the many (contra the elite) as “the people.”

The second conception sees the people as a “corporation, hierarchically structured, ruled by reason for the sake of the common good.” This is the more classical conception of a people as a whole greater than and, in some ways, more important than the parts that make it up. This unified, corporate body relies for guidance not on the majority but on a natural aristocracy, capable of seeing beyond individual self-interest.

Fumurescu’s thesis is that the development of American politics from the Puritans to the Civil War can be understood as a centuries-long grappling with these two competing, but equally essential, conceptions of the people. Ultimately, some sort of balance between these two was necessary to prevent either one from straying into dangerous territory. The corporatist conception of the people always threatens to devolve into “unchecked power” and rule by corrupt leaders; the liberal conception of the people threatens to devolve into a “licentious mob.” We see this most clearly in the Constitution’s ratification debates, in which Federalists worried about mob rule, while Anti-Federalists worried about an unchecked ruling class. Each seized on a different conception of “the people.” Understanding this balance helps us to weave together many partially correct narratives about the founding.

And from the conclusion:

The book is not a light read, and is suited best for scholars of the founding era. It weaves together many various themes from Puritan theology of personhood to virtual representation to the development of partisan government. As the thesis acknowledges, the underlying differences about “the people” are often buried under layers of rhetorical and theoretical expostulations on more “surface-level” topics. As such, it can be difficult to follow through the dense historical jungle that the book traverses.

The thesis is compelling. It hits on two fundamental political truths that are in a degree of tension with one another: One is the observation that “the people” is made up of individuals and is meant to promote the good of those individuals. Nevertheless, a body politic is something more than a joint-stock company, aiming only at individual advancement and governed by the majority. The ideas expressed by the most cogent political thinkers—especially those committed to popular rule but nonetheless concerned about the dangers of majoritarianism—typically recognize these dual truths. It is useful to study the founding era from this perspective.

One is nevertheless left with a sense that perhaps the book bites off more than it can chew. Such a broad and all-encompassing thesis cannot be fully demonstrated in 250 pages. This is especially true of the discussion of the Constitution and the antebellum era, two topics that have been so exhaustively studied as to likely require an entire book dedicated to each.

Fumurescu has convincingly shown that “the people’s two bodies” is a productive approach to many of the issues that defined American development. As we enter a time when honest, non-ideological assessment of America’s past is becoming more difficult to find, this is a valuable contribution.

07/25/2020

Josh Blackman on Justice Gorsuch's Textualism
Michael Ramsey

In The Atlantic, Josh Blackman: Justice Gorsuch’s Legal Philosophy Has a Precedent Problem. From the introduction:

Justice Neil Gorsuch is a proud textualist. According to this approach, what Congress intended, or expected, when it passed a law doesn’t matter. What matters are the words printed on paper. In practice, Justice Gorsuch will strictly follow the text of statutes, no matter what result it yields. Last month, he decided that the 1964 Civil Rights Act has always prohibited LGBTQ discrimination. Everyone had simply missed it for half a century. And at the close of the Court’s term, he determined that an 1833 treaty between the federal government and American Indian tribes was never formally rescinded. Who knew that eastern Oklahoma has been Indian Country all along?

In both cases, Justice Gorsuch insisted he was sticking to the text, the whole text, and nothing but the text. Alas, he wasn’t. His interpretation was shaded by the work of justices who had not been so careful about text. And in both cases, Justice Gorsuch failed to acknowledge that the Court’s precedents were inconsistent with textualism. In doing so, he inadvertently undermined textualism’s justification. One can’t profess to follow the original meaning of a text while in fact following precedents that ignored that meaning. Going forward, he should criticize prior decisions that failed to take text seriously, and either reluctantly follow them, or formally abandon them.

Specifically on McGirt: 

The decision in the second case, McGirt v. Oklahoma, was split 5–4, with Justice Gorsuch joined by the four progressive justices. This case considered whether Congress had formally “disestablished” an American Indian reservation that covers half of Oklahoma. No federal law dictates what precise steps are needed to disestablish a reservation. Thus, textualists have no relevant statute to parse. Instead, the courts have incrementally developed a century of case law about how Congress can eliminate American Indian sovereignty over territory. That framework, alas, is not itself textualist. The Court has never set out some magic words that Congress must utter to wind down tribal authority. Instead, the Court’s approach considers many factors that, when viewed in context, reveal an intent to disestablish the reservation.

This sort of fluid approach is, no doubt, a bitter pill for textualists to swallow. So in McGirt, Justice Gorsuch simply spit it out. Unlike in Bostock, Justice Gorsuch refused to treat the Court’s non-textualist precedents concerning Indian territory as part of the “law’s ordinary meaning.” He did not approach Congress’s entire body of work as the Court has instructed. Over the course of many years, Congress diminished the tribes’ authority, and established a commission to bring the territory under the jurisdiction of the state of Oklahoma. But Justice Gorsuch deemed this evidence too fragmented to establish a unified congressional intent. Rather, he inspected individual congressional actions that concerned the territory in a fragmented, balkanized fashion. Unsurprisingly, Congress did not meet his novel standard for disestablishment. As a result, Justice Gorsuch found that Congress’s 1833 promise to the tribes had not been explicitly repealed, and remained in effect. Congress hadn’t said the magic words. And how could it? Until McGirt, no one knew the precise textual standard that was needed to disestablish a reservation. ...

And from the conclusion:

Justice Gorsuch ... professed to apply a form of unadulterated textualism. But he failed to account for contrary precedent. In Bostock, he quietly baked into his analysis decisions from the 1980s and ’90s that were hardly textualist. And in McGirt, he demanded a level of textual precision from Congress that had never been demanded before.

Repeating, over and over again, that Congress can amend the statute if it disagrees with the Court’s decision is not enough. Of course it can. But this argument goes only so far. Congress has been operating under certain presumptions for decades; it thought the scope of Title VII and the boundaries of Oklahoma had been settled long ago. But Justice Gorsuch maintains that everyone was wrong about Title VII for five decades, and that everyone was wrong about eastern Oklahoma for a century.

...

... In its present form, Justice Gorsuch’s textualism is far too fragmented to form a coherent jurisprudence. In the future, he must grapple with the interplay between stare decisis and textualism. ... [His current approach] is misleading. It preaches textualism, but practices precedentialism. This approach, in the long run, will serve only to undermine textualism. If Justice Gorsuch wants to move the law away from nebulous, flimsy reasoning toward more textualist, neutral principles, he must account for both text and precedent.   

07/24/2020

Michael Dorf on Textualism in McGirt and Bostock
Michael Ramsey

At Dorf on Law, Michael Dorf: Will Liberal Justices Pay A Price For Signing Onto Justice Gorsuch's Textualist Opinions?  On McGirt

The core of the McGirt opinion goes like this: (1) The treaties created a reservation for the Creek; (2) a statute could disestablish a reservation; (3) however, actions by states and the courts can't disestablish a reservation; and (4) nothing Congress said in any statute or treaty adopted after the treaties that established the reservation disestablished it, so the reservation still exists. The crucial step is the last one, because Justice Gorsuch rejects what Chief Justice Roberts in dissent (quoting a 2016 case) calls a "well settled" approach of looking at the context and historical understandings of Congress and other actors to infer a congressional purpose to disestablish the reservation. 
 
Insofar as McGirt applies a clear statement rule specifically applicable to the disestablishment of reservations or somewhat more broadly to constructions of treaties with Native tribes, his approach is sensible and unobjectionable. And there are indeed parts of Justice Gorsuch's opinion that can be understood in this way. But there are also a great many parts of his opinion that appear to be applying strict textualism as the right approach to statutory interpretation for all seasons. For example, Justice Gorsuch writes that "the only 'step' proper for a court of law" in construing a statute is "to ascertain and follow the original meaning." For that proposition he cites a case having nothing to do with treaties or Native American rights. The opinion reads like a stark rejection of what Prof William Eskridge has called dynamic statutory interpretation.
 
Sounds good to me.  But then, Professor Dorf asks, did Justice Breyer et al. join the opinion (and the similarly textualist opinion in Bostock)?
 
Why, then, do the Court's Democratic appointees--including Justice Breyer, who has been a vocal opponent of anything like strict textualism--go along with Justice Gorsuch's opinion? It is possible, albeit just barely, that they read Justice Gorsuch's language as anodyne. For example, right after his paean to original meaning, Justice Gorsuch says that the Court will "sometimes consult contemporaneous usages, customs, and practices to the extent they shed light on the meaning of" ambiguous language. Purposovists like Justice Breyer can agree with that while thinking that more language is ambiguous than the likes of a textualist would say. But I think this explanation requires a fairly contrived understanding of the opinion, which, on its face, seems to rule out methods that Justice Breyer and the other Justices in the majority would routinely find perfectly acceptable.
 
I am thus left to conclude that the Democratic appointees joined Justice Gorsuch's highly textualist opinion in McGirt for the same reason they joined his likewise highly textualist opinion in Bostock: they agreed with the result.
 
Yet that raises the question whether there will be a future price to pay. In some future case in which textualism leads to a conservative result, will the liberal Justices feel compelled to endorse such a result? The short answer is no. The very fact that they were willing to join the textualist majority opinions in Bostock and McGirt even though they have also written and joined purposivist (or occasionally intentionalist) opinions shows that they regard methodology as secondary to results. You can't hoist result-oriented justices by their own methodological petards because they don't have methodological petards.
 
That's really an extraordinary statement.  Of course, it's what originalist scholars and conservative critics tend to say about nonoriginalist Justices.  But Professor Dorf is a liberal nonoriginalist.  Generally such scholars are reluctant to admit that nonoriginalism is just about results.  (Or perhaps he just means to say that the Court's nonoriginalists are bad nonoriginalists?).

07/23/2020

Ronald Levin & Mila Sohoni on John Harrison on APA Remedies
Michael Ramsey

 At the Yale Journal on Regulation's Notice and Comment blog, Ronald M. Levin (Wash. U.) & Mila Sohoni (San Diego): Universal Remedies, Section 706, and the APA.  From the introduction:

The debate over the propriety of the nationwide or “universal” injunction continues to unfold. Just this month, in a dissenting opinion in Little Sisters of the Poor v. Pennsylvania, Justices Ginsburg and Sotomayor took a stand in favor of the permissibility of such injunctions, balancing off comments to the contrary in earlier opinions by Justices Gorsuch and Thomas.

The debate among commentators also remains in flux. In particular, in a recent JREG post and accompanying bulletin, Professor John Harrison has set forth a fresh argument about the judicial review provisions of the Administrative Procedure Act (APA) and their relationship to the universal injunction. Hailed by one observer as “explosive,” Harrison’s work swiftly received a prominent citation at the Supreme Court in the Solicitor General’s reply brief in Trump v. Pennsylvania, the companion case to Little Sisters. Accordingly, we felt it worthwhile to write this response to his contentions. ....

We have each written separately about the APA and universal injunctions, including in an amicus brief and a recently posted draft article by one of us (Sohoni, The Power to Vacate a Rule). (That article contains portions of the analysis below.) But Harrison adds a new twist to the debate. His chief claim is that “section 706 . . . does not address remedies at all. … The APA addresses remedies not in section 706, but in section 703.” The implications of this broad assertion extend well beyond the context of universal injunctions; they raise questions about the fundamental structure of the APA. ...

Like the famous Robert Rauschenberg artwork “Erased de Kooning Drawing,” the impact of Harrison’s argument flows from what it erases. In the 70-plus years since the APA was enacted, administrative lawyers have never construed Section 703 as addressing remedies. Even if the tabula were actually rasa, moreover, we would still urge against Harrison’s reading of the APA. That law’s text, structure, legislative history, and purposes all support the view correctly held by courts and commentators: the APA deals with remedies—including universal remedies—in Sections 705 and 706, not in Section 703. ...

07/21/2020

Judge Patrick Bumatay on the State Secrets Doctrine
Michael Ramsey

In a recent case, Fagaza v. Walls, Judge Patrick Bumatay (Ninth Circuit) (writing for 10 judges dissenting from denial of rehearing en banc), discusses the historical foundations of the state secrets doctrine.  An excerpt (footnotes omitted): 

Article II of the Constitution commands that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. And the President is also designated as the “Commander in Chief of the Army and Navy of the United States.” U.S. Const. art. II, § 2. By these terms, the Constitution was originally understood to vest the President with broad authority to protect our national security. See Hamdi v. Rumsfeld,  42 U.S. 507, 580 (2004) (Thomas, J., dissenting) (“The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.”). As Hamilton observed, a single Executive could better act with “[d]ecision, activity, secrecy, and d[i]spatch” as would be required to respond to the national security crises of the day. The Federalist No. 70 (Alexander Hamilton).

Secrecy, at least at times, is a necessary concomitant of the executive power and command of the Nation’s military. As commander of the Continental Army, George Washington explained to Patrick Henry that “naturally . . . there are some Secrets, on the keeping of which so, depends, oftentimes, the salvation of an Army: Secrets which cannot, at least ought not to, be [e]ntrusted to paper; nay, which none but the Commander in Chief at the time, should be acquainted with.”

Given the Executive’s inherent need for secrecy, it comes as no surprise that early presidents regularly asserted a privilege over the disclosure of sensitive information. In 1792, when President Washington found himself faced with the first-ever congressional request for presidential materials, he recognized an executive privilege to avoid disclosure of secret material. See Abraham D. Sofaer, Executive Power and the Control of Information: Practice Under the Framers, 1977 Duke L.J. 1, 5–6. Washington’s Cabinet, including Hamilton and Jefferson, agreed “that the executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public.” Id. at 6 (quoting The Complete Jefferson 1222 (S. Padover ed. 1943)); see also Mark J. Rozell, Restoring Balance to the Debate over Executive Privilege: AResponse to Berger, 8 Wm. & Mary Bill Rts. J. 541, 556 (2000).

President Jefferson, even as a prominent critic of an overly strong executive branch, held the same view on the need for secrecy. As he put it in 1807, “[a]ll nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication.” Similarly, Jefferson wrote to the prosecutor of the Aaron Burr case to explain that it was “the necessary right of the President . . . to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom.”

The issue in the case isn't the existence of the state secrets doctrine, but rather the extent to which it is qualified by the Foreign Intelligence Surveillance Act (FISA); the dissent stresses the doctrine's strong constitutional foundations as a ground for reading the FISA provisions narrowly.

(Via Ed Whelan at NRO Bench Memos.)

07/20/2020

Nelson Lund: Living Textualism in Bostock v. Clayton County
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted Unleashed and Unbound: Living Textualism in Bostock v. Clayton County (Federalist Society Review, forthcoming 2020) (20 pages) on SSRN.  Here is the abstract:

In Bostock v. Clayton County, Georgia the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits—and has always prohibited—discrimination by employers on the basis of homosexuality or of what the Court called transgender status. How so? The statute forbids employers to intentionally discriminate against any individual “because of such individual’s . . . sex.” The Court asserted that discrimination because of homosexuality or transgenderism violates the unambiguous text of the statute.

This result in this case decision would not have been much of surprise in the period during which Justice Anthony Kennedy held the controlling vote on issues dealing with sex, and especially with homosexuality. But the 6-3 majority opinion in Bostock was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts. The majority opinion has virtually no policy analysis or political rhetoric, and it lacks the kind of inflated pseudo-philosophic pontification that Kennedy favored. Instead, the Bostock opinion presents itself as nothing more than a straightforward application of the legally binding text of the statute. Justice Gorsuch even goes out of his way to cast himself as the legitimate intellectual successor to the man whom he literally succeeded: the high priest of statutory textualism, Justice Antonin Scalia.

Leaving others to speculate about judicial motives, I propose that Bostock is an extension of a theory commonly called “living originalism.” During the last decade, this approach to constitutional interpretation has been gaining steam in the legal academy. Bostock has now effectively extended that approach beyond the academy, beyond the field of constitutional interpretation, and even beyond the limits recognized by its academic adherents.

Bostock is a demonstrably outlandish judicial performance. Outlandish though it is, Bostock might be used by the Court to correct one of its most egregiously mistaken lines of case law. Although Title VII unambiguously forbids employers to discriminate on the basis of race or sex, the Court has upheld quotas and preferences explicitly based on the race or sex of people in favored groups. In 1991, Congress amended Title VII by adding a new provision whose text unambiguously overruled the decisions that upheld these preferences. Even without using the peculiar new form of textualism deployed in Bostock, the Supreme Court should have recognized that the 1991 amendment deprived these precedents of any binding force they may once have had. The Court has not done so, but Bostock now imperatively requires the Court to declare that Title VII forbids, and has always forbidden, these illegal employment practices.

07/19/2020

Ian Huyett: How to Overturn Employment Division v. Smith
Michael Ramsey

Ian Huyett (J.D. Washington and Lee University '18) has posted How to Overturn Employment Division v. Smith: A Historical Approach (Regent University Law Review, Vol. 32, 2020) (49 pages) on SSRN.  Here is the abstract:

Over the last decade, justices on both sides of the Roberts Court have demonstrated a growing willingness to give the Free Exercise Clause substantive power: a trend that stands in stark contrast with the Rehnquist Court’s decision in Employment Division v. Smith. The Court’s references to Smith have also become visibly — and fittingly — awkward and halting. In this article, I argue that the time has come to push for an explicit reversal of Smith, and that such a decision would not only be joined by Chief Justice Roberts, but likely by Justice Kagan as well. Exploring the history of the Free Exercise Clause, I argue that Smith contradicted the Clause’s original intent, and that the nineteenth-century decisions on which Smith relied were little more than brazen codifications of anti-Mormon bigotry. I conclude that Justice Scalia’s majority opinion in Smith fails every metric of sound jurisprudence, and that a bipartisan coalition of justices can be persuaded to discard it as an aberration.

(Via Larry Solum at Legal Theory Blog, who comments: "A somewhat dated understanding of originalism.")

07/18/2020

Carl Esbeck on the Original Meaning of the Establishment Clause
Michael Ramsey

Carl H. Esbeck (University of Missouri School of Law) has posted The Establishment Clause: What the Text and Record in the First Federal Congress Can Tell Us About Original Meaning (33 pages) on SSRN.  Here is the abstract:

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent actors reflecting original intent. This is now considered Old Originalism. Its defect is that lawmaking is a collective task, the work of many individuals with multiple intents. Jurisprudential conservatives have urged an interpretation of the U.S. Constitution that is faithful to its time of inception. They increasingly look to New Originalism. This is an interpretive principle that adheres to the ordinary meaning of the text when adopted. Originalism—first old and now new—has especially been a long-term project of religious traditionalists when it comes to the Establishment Clause.

Seemingly Everson and its progeny were asking the wrong question (Old Originalism) about the wrong event (Virginia). The First Amendment is from a different time (1789-90) and lawmaking body (Congress and ratifying states). James Madison is the one common denominator, but his purposes and power to successfully shape the law emerging from these events were altogether different in the two instances. While New Originalism looks at a narrower slice of the historical record, it still requires knowledge of context to fully understand what Congress was trying to do in settling on a particular text.

As the First Congress assembled in New York City in April 1789, Madison still did not concede that a bill of rights was needed to thwart abuses by the new federal government. Yet he saw its usefulness “to limit and qualify the powers of the Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” From the start, then, Congress’s task was made easier because the purpose was not to formulate a comprehensive list of unalienable or natural rights. The effort was the far more modest, and hence achievable, task of agreeing on what powers were not vested in the new government by the 1787 Constitution. Thus, the amendments would be stating negatives, that is, identifying what the federal government had no power to do.

With the question thus framed, this article explores what New Originalism yields concerning the original meaning of the words “respecting an establishment of religion.” It turns out the text tells us a fair amount, including what these words did not mean.

07/17/2020

William Carter: The Second Founding and the First Amendment
Michael Ramsey

William M. Carter, Jr. (University of Pittsburgh - School of Law) has posted The Second Founding and the First Amendment (66 pages) on SSRN.  Here is the abstract:

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution of Enslavement would be modified as necessary in order to give rise to a “new birth of freedom.” Contemporary constitutional doctrine, however, has rarely grappled with the question of whether and to what extent the Second Founding’s Framers and general public might have had a different or more nuanced understanding from their First Founding counterparts of prior constitutional provisions.

The Supreme Court’s approach to First Amendment interpretation largely ignores the Second Founding. The Court’s cases generally view the colonial Founding era as the sole source of evidence for ascertaining the original intent and public understanding of the Constitution’s guarantee of freedom of speech. This Article, by contrast, contends that the intent and understandings of the Second Founding provide an additional and under-explored source of constitutional meaning and therefore examines freedom of speech through the lens of slavery, abolition, and Reconstruction.

This Article breaks new ground in legal scholarship by extensively reviewing slave narratives that illuminate the experiences and perspectives of enslaved persons regarding freedom of speech. This Article contends that by virtue of the Second Founding, enslaved persons’ views and experiences regarding freedom of speech should directly inform the meaning of the First Amendment. Accordingly, this Article makes a novel contribution to the literature regarding the Second Founding by centering enslaved persons’ voices as constitutional actors whose views on freedom of speech matter.

07/16/2020

Josh Blackman & Seth Barrett Tillman on Impeaching Territorial Officers
Michael Ramsey

At Balkinization, Josh Blackman & Seth Barrett Tillman: Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribes.  From the introduction:

Recently, the Supreme Court decided Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC. (We wrote about it here.) This case considered the status of members of the Financial Oversight and Management Board for Puerto Rico.
 
The board members are appointed by the President without the Senate’s advice and consent. These positions were created by the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA). Justice Breyer’s majority opinion found that the board members are not principal “officers of the United States.” (The parties did not contend the board members might be inferior “officers of the United States.”) Rather, the Court held, they are “local officers that Congress vests with primarily local duties.” Thus, their appointments are not subject to the strictures of the Appointments Clause: that is, appointment by the President, with advice-and-consent by the Senate.
 
However, the Court did not define how the PROMESA board members should be characterized. Justice Breyer recognized that if the PROMESA board members “are not officers of the United States,” they must be “some other type of officer,” and “the Appointments Clause says nothing about them.” But what are they? Justice Breyer observed that “[l]ongstanding practice indicates that a federal law’s creation of an office in this context does not automatically make its holder an ‘Officer of the United States.’” That is, a federal statute can create another type of federal officer—that is, one who is not an “officer of the United States,” as that phrase is used in the Appointments Clause.
 
The problem is...
 
The PROMESA case also has unanticipated consequences. If territorial officers with only local duties are not “officers of the United States,” then they are not subject to the Impeachment Clause. That provision extends to the “President, Vice President and all Civil Officers of the United States.” Thus, Congress would be helpless to impeach, try, remove, and disqualify a territorial officer—no matter how egregious the conduct. Consider an example involving [Arthur] St. Clair [Governor of the Northwest Territories]. Trump v. Mazars recounted that in 1792, he led a “campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana.” Under the PROMESA Court’s reading of the Appointments Clause, Congress would have been unable to remove St. Clair through impeachment processes. By contrast, we can point to a 1796 opinion of the Attorney General, Charles Lee, advising the House of Representatives that it may proceed against a territorial judge by impeachment.
 
Justice Breyer’s majority opinion has other consequences. If territorial officers with primarily local duties are not “officers of the United States,” regardless of how they are appointed, then they may also not hold “office[s] . . . under the United States.” Under the prevailing readings of the Constitution, there is no meaningful difference between the Constitution’s “office”- and “officer”-language. The two phrases—“officers of the United States” and “office under the United States”—are seen as co-extensive. (We do not subscribe to that modern atextual reading of the Constitution.) If these conclusions are accurate, then territorial officers would not be subject to the Foreign Emoluments Clause. As a result, St. Clair and other frontier officers could have freely accepted foreign state diplomatic gifts or, even, bribes from England, France, and Spain, without seeking congressional consent. Congressional consent would not be required for diplomatic gifts, and impeachment would not extend to outright bribes. Moreover, such territorial officers would not be bound by two other provisions that use the phrase “office . . . under the United States”: the Elector Incompatibility Clause and the Impeachment Disqualification Clause.

07/15/2020

In the McGirt Case the Courts Should Have Held the Major Crimes Act Unconstitutional as Applied
Andrew Hyman

Earlier this month, the U.S. Supreme Court decided the case of McGirt v. Oklahoma.  SCOTUSBlog has background materials here.

By a 5-4 vote, the Court decided that almost half of Oklahoma, including much of the city of Tulsa, is still a "reservation" of the Creek Tribe, even though everyone agrees that the state and federal governments have not treated it as such for over a hundred years.  Several more tribes may now get similar rulings, covering even more land in Oklahoma.  The main impact may well not be as huge as some media outlets suggest; prosecution and trial of major crimes involving Native Americans may shift from the State government to the Federal government, plus a few other changes.  However, it seems inevitable that Congress will have to act in some way, because the Court’s opinion by Justice Gorsuch suggests that no government at all has legitimate authority to prosecute various minor crimes involving Native Americans, but it is unknown whether Congress will be inclined to shift jurisdiction over major crimes back to the State of Oklahoma.   

I think McGirt was probably wrongly decided, although it’s not as clear a legal mistake as the recent Bostock decision (about which I briefly commented here).  Whether it was decided rightly or wrongly, McGirt  has much interesting information about how the majority and the dissent regard (or disregard) the original meaning of laws.

In McGirt, Justice Gorsuch spoke for himself, Breyer, Kagan, Sotomayor, and Ginsburg.  Chief Justice Roberts wrote the main dissent.  The case was about Jimcy McGirt, an enrolled member of the Seminole Nation who was convicted in Oklahoma state court of raping his wife’s four-year-old granddaughter.  Everyone agrees that the crime happened on land that (at one time at least) has been part of a Creek Reservation.  And everyone agrees that Congress has exercised its power to reduce or diminish that Creek Reservation from what it once was.  Moreover, everyone agrees that a pertinent federal statute is the Major Crimes Act (MCA).  That statute, which has been amended since it was first written in 1885, can be found at 18 USC 1153.  The statute uses the term "Indian Country" which includes various categories described at 18 USC 1151, including Native American reservations.  As far as I can tell, the word “reservation” maintains the same meaning now as it had in the original text of the MCA (p. 385) (emphasis added):

Indians committing [certain major crimes] against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.

The constitutionality of the MCA was upheld in U.S. v. Kagama, 118 U.S. 375 (1886).  Justice Samuel Miller wrote the unanimous opinion in that 1886 case, and he said that the MCA was valid assuming the reservation had certain characteristics.  Regardless of whether the area at issue in McGirt is a “reservation” within the original meaning of the MCA, the MCA is inapplicable to that area if it is not enough of a reservation to meet the criteria set forth in Kagama.  Here’s what Miller wrote:

It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.

It seems to me that the MCA is unconstitutional as applied, if a reservation does not meet these conditions described in 1886 by a unanimous U.S. Supreme Court.  It’s true that the Kagama opinion is dated a year after the MCA, and therefore could not have influenced the Congress and the public who allowed the MCA to become law.  But I think the Kagama Court was correct to impose certain conditions upon the reservations to which the MCA can apply within the boundaries of a state, the older sources cited by Justice Miller are compelling, and I don’t think those conditions are satisfied by the Creek Reservation, whether it still exists as a "reservation" or not.  So, it was disappointing that the Court did not mention Kagama in McGirt, nor whether the MCA might be unconstitutional as applied, but perhaps those issues were not properly raised by counsel.

MICHAEL RAMSEY ADDS:  I'm not sure what I think of McGirt or the Major Crimes Act, but to be fully originalist about the matter I think one would have to say that U.S. v. Kagama is wrong (at least on its reasoning).  As described above, the question in Kagama was whether Congress had constitutional power to criminalize wrongs between members of tribes.  In addition to the paragraph quoted above, the core of the Court's analysis in finding the power was this:

The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.

Wrong, wrong wrong.  Power does not exist in the "General Government" (i.e., Congress) because it is "necessary" or it "must" exist.  By the Tenth Amendment, a power exists in the General Government if it is delegated to the General Government by the Constitution; otherwise is it reserved to the states or the people.  Kagama is one of a series of cases in the late nineteenth century in which the Court disregarded the Tenth Amendment and found congressional power over various matters simply because those powers were properly exercised by sovereign nations and the national government was (it said) the logical place for them.  And most of these cases, like Kagama, asserted without foundation that the states could not exercise the powers in question.  But typically states could exercise the powers -- for example, in Kagama, there wasn't any practical reason states couldn't regulate crimes among tribal members within state boundaries, although there may have been reasons this would have been a bad idea.

That doesn't mean the Major Crimes Act is unconstitutional as a general matter.  Congress has power to implement treaties (including treaties with the tribes) and to make rules respecting the territory and property of the United States (art. IV).  But as an original matter an application of the Major Crimes Act or other aspects of federal law respecting the tribes needs to be linked to these constitutional powers, not merely to the Court's supposed concern over the plight of the tribes and the needs of sovereignty.

ANDREW HYMAN REPLIES:  The quote I provided above from Kagama does reference the treaty power, saying that from “treaties in which [protection] has been promised, there arises the duty of protection, and with it the power.”  Thus, the Court in Kagama analyzed whether the Native Americans in question really needed the protection of the Major Crimes Act, and Justice Miller explained why they did in that particular case.  If one accepts that the Treaty Clause allows incursions into power otherwise reserved to the states (perhaps based upon a legitimate international concern), then Kagama seems like a valid implementation of that view.   Either way, the result in McGirt was likely wrong, because it’s inconsistent with the rule in Kagama, or because the Treaty Clause does not allow incursions into Tenth Amendment power.  My understanding is that everyone agrees the land at issue in McGirt is not the territory or property of the United States (the MCA says it’s not “within the exclusive jurisdiction of the United States”).

07/14/2020

Josh Blackman: Presidential Subpoenas during the Burr Trials
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted Presidential Subpoenas during the Burr Trials (17 pages) on SSRN.  Here is the abstract: 

Between March and October of 1807, Aaron Burr stood for two treason trials arising from the same set of facts: the first, for a felony charge, and the second, for a misdemeanor charge. Chief Justice John Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued seventeen written opinions, and delivered several shorter decisions from the bench, that spanned over two-hundred pages in the reporter. In the end, based on Marshall’s narrow construction of the crimes of treason, the jury acquitted Burr of both the felony and the misdemeanor charges. Marshall’s rulings, however, were not limited to technical aspects of criminal law. In both trials, Aaron Burr asked the court to issue a subpoena duces tecum to President Jefferson. Such a subpoena would have required the witness to appear in court, and bring a specific document. Specifically, Burr wanted Jefferson to produce a letter authored by General Wilkinson, dated October 21, 1806. Burr insisted that this transmission to the President was material to his defense. Moreover, the Defendant demanded that Jefferson produce the original copy of Wilkinson’s letter. The United States Attorney, George Hay, would only offer to provide a redacted copy of the letter, with certain portions excluded.

As the deliberations proceeded, Hay would frequently write to the President, who travelled between the White House and Monticello. Jefferson, who took a keen interest in the case, would usually write back immediately. The correspondences between Jefferson and Hay outside of court can shed light on the interactions between Hay and Marshall in court. That is, the government’s positions were based on direct instructions from the President himself. In the felony trial, Marshall ordered that Jefferson was required to submit the original copy of the letter, without redactions. Jefferson did not comply with this order. In the misdemeanor trial, Jefferson would provide a redacted copy of the letter.

Because of the lengthy nature of the proceedings—in which Marshall and Jefferson took different positions at different junctures—it is difficult to draw too many broad conclusions from the prosecution as a whole. This essay will walk through each phase of the proceedings, with an eye towards understanding the limits on presidential subpoenas.

07/13/2020

Eric Segall on Espinosa v. Montana Department of Revenue
Michael Ramsey

At Dorf on Law, Eric Segall: The Roberts Court: We are All Living Constitutionalists Now.  From the core of the argument:

Since Justice Gorsuch was promoted to his current position, he, Thomas, and Kavanaugh have teamed up on numerous important occasions to strike down laws in what can only be fairly described as living constitutionalist decisions. They voted to overturn state laws requiring public-sector union employees to pay partial union dues; a state law requiring certain abortion information to be posted at so-called pregnancy crisis centers; a state law prohibiting wearing political apparel at voting places; and a Colorado anti-discrimination law as applied to a baker who refused to make a cake for a same-sex wedding. As I've argued before, none of these cases can be justified by reference to originalist materials. They are all based on the Justices' personal values and politics. The decisions in these cases might be right or wrong, good or bad, but they are not originalist.

Last week the three were at it again in what is one of the most important cases this term. In Espinoza v. Montana  Department of Revenuethe five conservatives (over the dissent of the four liberals) reversed a Montana Supreme Court decision that held it would violate the state constitution for taxpayer dollars generated by a tax credit to be given to religious schools. ...

Chief Justice Roberts' majority opinion in Espinoza barely mentions originalist sources. Most of the legalisms in the opinion were supported by citations to Trinity Lutheran v. Comera 2017 decision in which the Court held that Missouri could not bar religious schools from participating in a program that reimbursed schools for repaving playgrounds with recycled tires. Chief Justice Roberts wrote the main opinion in that case, which also failed to to cite originalist materials, so Espinoza's piggy-backing on Trinity Lutheran cannot provide the missing originalist link.

The lack of an originalist basis for the Court's ruling that states cannot disqualify religious schools from general aid programs can be seen in Roberts' lengthy attempt to distinguish Locke on the basis that there had been a “historic and substantial state interest in not funding the training of clergy." Roberts said there was no similar tradition when it came to the funding of religious schools because, and this is the only originalism in the case, in "the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones." But the issue in Espinoza was not whether Montana could support religious schools but whether it had a constitutional obligation to give religious schools the same aid it gives non-religious schools. For the proposition that Montana had no choice in the matter, Roberts did not cite any originalist sources.

Unfortunately, I think this is mostly right about the majority opinion in Espinosa (and in Trinity Lutheran as well).  I would have liked to see a more originalist concurrence, at least, from one of the avowed originalists.  But don't know that that makes them living constitutionalists.  Perhaps they thought that the result was right on originalist grounds and that (as Justice Scalia often said), you can't write separately in every case.  It's not clear to me that the result in Espinosa is wrong on originalist grounds.  Just on the text, arguably you can't freely exercise your religion if the government puts you to the choice of giving up your religious affiliation or losing your government funding.  Perhaps that's not the way the text was understood at the time of enactment, but that would require some originalist evidence on the other side (and I take Roberts' point, discussed in the quote above, to be that there isn't any).

07/12/2020

William Baude: Conservatives, Don’t Give Up on Your Principles or the Supreme Court

In the New York Times, William Baude: Conservatives, Don’t Give Up on Your Principles or the Supreme Court -- Some are turning away from a founding idea, originalism.  From the introduction:

For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.

But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, is outdated.

And from the conclusion:

These decisions show that while originalism had great force at the court, it is not a juggernaut. The justices disagree about how to interpret ambiguous provisions and about the role of precedent; originalists disagree among themselves about how to balance text and other context.

These disputes are healthy. Even if the court does not get every decision right (which it does not), it demonstrates a widespread commitment to the method of originalism, in which the meaning of the Constitution as enacted by the people is paramount and judges can interpret it but cannot alter it. Originalism is foundational to our law, even though the justices sometimes disagree in applying it and even though the role of precedent remains fraught.

Still, as originalism becomes more popular and sometimes delivers liberal outcomes, originalists may fracture among themselves. Some conservatives may turn against it altogether, following the lead of Professor Vermeule. It is reasonable for some conservatives to be tempted by this position. If what matters most to you are the results in specific cases, you may want non-originalist justices.

But one danger of results-oriented judging is that other people, including future conservative judges, may not share your moral convictions. Even politicizing the courts may not produce moral consensus. Originalism is a method of evaluation, not a party platform.

Originalism has had widespread support for a reason. It has the potential to transcend our moral disagreements. And that may be what we need most in the long run.

Agreed (at least as to the last part).  But originalism can't transcend our moral disagreements unless liberal Justices (sometimes) vote for conservative results on originalist grounds.  And if they won't, conservatives may (like Professor Vermeule) decide originalism is a bad deal.

Thanks to Michael Perry for the pointer.

07/11/2020

Steven D. Smith on Bostock
Michael Ramsey

One more on Bostock v.Clayton County, from my USD colleague Steven D. Smith (at Law & Liberty): The Mindlessness of BostockFrom the introduction:

In Bostock v. Clayton County, as everyone by now knows, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sexual orientation or transgender status. Dissenting, Justice Samuel Alito pointedly accused the Court of legislating.

Alito was too kind. The Court did not merely transfer the legislative power from Congress, where the Constitution places it, to the judiciary. Rather, the Court moved the legislative power beyond the realm of mindful decision-making altogether. If we assume that Justice Neil Gorsuch was sincere in what he wrote for the Court (and I do), our governing law becomes mindless in a quite literal sense.

Ironically, this descent into mindlessness is the consequence of a prima facie admirable but seriously misconceived commitment to rule of law—a misconception closely associated with the “textualism” advocated by conservative champions like Justice Antonin Scalia and followers like Justice Gorsuch. In that sense, Bostock might be taken as a sort of reductio ad absurdum of the textualism that many legal conservatives have ill-advisedly embraced for a generation or more.

And from later on:

As of last month, in short, Congress had been presented with the question, had thought about it—and had decided not to adopt any prohibition. So the prohibition recognized in Bostock surely did not come from any mindful deliberation and decision by Congress.

Does it then at least reflect mindful deliberation and a decision by the Justices on the basic question—namely, whether the law should prohibit sexual orientation discrimination? Again, cynics may suggest that this is what happened. But Justice Gorsuch rejects any such description. According to Gorsuch, he and his colleagues are not themselves deciding whether sexual orientation should be protected against discrimination. Not at all. They are merely saying what “the law” is.

Whether federal law should prohibit sexual orientation discrimination has been a much-debated issue in our society. Now we have such a prohibition. But not because Congress deliberated and then decided to adopt it. And not (at least according to Gorsuch) because the Justices deliberated and decided to adopt it. What we have, it seems, is a highly consequential and controversial prohibition that is not the expression of a mindful decision by anyone.

Andrew Koppelman has a response at Balikinzation: Bostock and mindlessness.

07/10/2020

Steven Heyman: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause
Michael Ramsey

Steven J. Heyman (Chicago-Kent College of Law) has posted Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause (University of Pennsylvania Journal of Constitutional Law, Vol 23, No. 1, forthcoming) (121 pages) on SSRN.  Here is the abstract:

One of the most intense debates in contemporary America involves conflicts between religious liberty and other key values like civil rights. To shed light on such problems, courts and scholars often look to the historical background of the Free Exercise Clause of the First Amendment. But this inquiry turns out to be no less controversial. In recent years, a growing number of scholars has challenged the traditional account that focuses on the roles of Thomas Jefferson and James Madison in the movement to protect religious liberty in late eighteenth-century America. These scholars emphasize that most of the political energy behind the movement came from Evangelical Christians. On this revisionist account, we should not understand the Free Exercise Clause and corresponding state provisions in terms of the Enlightenment views of Jefferson and Madison, which these scholars characterize as secular, rationalist, and skeptical – if not hostile – toward religion. Instead, those protections were intended to promote religion and especially Christianity.

In this Article, I offer a different understanding of the intellectual foundations of the Free Exercise Clause. The most basic view that supported religious liberty was neither secular rationalism nor Christian Evangelicalism but what contemporaries called natural religion. This view held that human beings were capable of using reason to discern the basic principles of religion, including the duties they owed to God and one another. Because religion was founded on reason, individuals had an inalienable natural right to develop their own beliefs and to worship in accord with them. At the same time, that right was limited by the law of nature, which required people to respect the rights of others. In this way, the concept of natural religion established both the foundations and the limits of religious liberty. This view enabled people with different religious and philosophical perspectives to find common ground. It provided the basis for a political coalition between Evangelicals, rationalist Christians, and Enlightenment liberals that secured the adoption of state and federal constitutional guarantees for religious freedom.

The Article begins by demonstrating that natural religion and its associated ideas of natural law and natural rights were central to the intellectual world of eighteenth-century Americans. Those ideas played a vital part in many areas of thought, including political and moral philosophy, natural jurisprudence, English law, Christian and Deist theology, and even Newtonian natural science – intellectual strands that came together in the Radical Whig ideology that animated the American Revolution. Next, I explain how those ideas can enhance our understanding of the religious liberty provisions of the first state declarations of rights; the political controversy that culminated in the passage of Jefferson’s Bill for Establishing Religious Freedom in Virginia; and the debates surrounding the adoption of the Federal Constitution and the Free Exercise Clause itself. Finally, I explore the founders’ views on the problem of religious exemptions from civil laws, and discuss the implications of this history for our current debates over civil rights and religious liberty – a subject that the Supreme Court recently grappled with in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and that it has agreed to revisit next Term in Fulton v. City of Philadelphia.

07/09/2020

Intentionalist and Textualist Critiques of Bostock v. Clayton County [updated]
Michael Ramsey

For an intentionalist perspective, in The Public Discourse, Robert Lowry Clinton (Southern Illinois): Textual Literalism and Legal Positivism: On Bostock and the Western Legal Tradition.  From the introduction: 

Much ink has been spilled about the Supreme Court’s decision in Bostock v. Clayton Countyin which Justice Neil Gorsuch held that the plain meaning of the relevant words in Title VII of the Civil Rights Act of 1964 entails forbidding employment discrimination on the grounds of sexual orientation and gender identity as part of forbidding discrimination based on “sex.”...

While the dissenting opinions of Justices Alito and Kavanaugh are sufficiently persuasive to defeat the majority’s inclusion of sexual orientation and gender identity within Title VII’s understanding of “sex,” I wish to bring to light another feature of the issue before the Court in Bostock. This feature is the wider jurisprudential background that bears upon not merely the issue in these cases, but legal interpretation more generally. One can only hope that the approach offered in the majority opinion does not become the new normal, because such a move would trash more than two millennia of legal development.

...

Justice Gorsuch’s opinion for the Court in Bostock has been hailed as an exercise in “textualism,” an “-ism” that is often touted for its apparent simplicity—a simplicity that is, sadly, most often illusory. The “textualism” employed by Justice Gorsuch in Bostock is not merely wrong (as Justice Kavanaugh effectively demonstrates), but a blatant circumvention of time-honored rules of statutory interpretation in the Western legal tradition. Mere analysis of the words in a legal text is not—and has never been—an end in itself for courts. Rather, it is a means of assisting courts in ascertaining the will of a lawgiver. In the section on “Powers and Duties of Judges,” Justinian’s Institutes declares that “[a]bove all he [the judge] must be sure not to depart from the statutes, imperial pronouncements, and custom.”

Following Justinian, in the Anglo-American legal tradition the most important conventions for interpreting legal documents embody various mixtures of text, tradition and logic. All have the sole purpose of directing courts in their search for the legislative will. In other words, these rules are all “intentionalist”: they are premised on the idea that there is a “true” meaning underlying any written legal text, and that this meaning is founded on the historical intentions of the makers of that text.

And from later on:

These are just a few of the most prominent examples in a seemingly endless train of commentary —with few if any contrary examples. They attest to a centuries-long agreement that the law cannot be read from the mere words of a legal text, but only from the will, or intention, of the lawgiver. Discernment of intent must begin from a consideration of the words used by the lawgiver to express the law, but it cannot end there. The object, end or purpose of the law—more precisely, the “mischief” that it was enacted to overcome—is crucial for determining its meaning. Any uncertainties in the meaning of the terms employed by the lawgiver must be resolved in accord with general custom and common usage at the time the law was enacted.

...

Textual literalism is an illicit preoccupation with the words of a writing divorced from consideration of the meaning being communicated by the writer. According to Vattel, it is a species of fraud: “Good-faith adheres to the intention; fraud insists on the terms, when it thinks that they can furnish a cloak for its prevarications.” Pushed to its logical extreme, as was done in the Bostock opinion, this kind of textual preoccupation generates meaninglessness—which is exactly what an interpreter wishing to attribute meanings not intended by the writer wants to do. Under this approach, words become mere empty vessels into which interpreters can pour anything they like.

(Thanks to Michael Perry for the pointer).

I think this critique is unfair to textualism, although Bostock in particular would be easier to decide on an intentionalist approach.  In general, though, it doesn't seem to me that textualism produces an "empty vessel" at least so long as the meaning of the words is taken in the context in which they were enacted.

For a textualist critique of Bostock, in National Review, Randy Barnett & Josh Blackman: Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases.  From the introduction:

[W]e were both surprised and disappointed by Justice Gorsuch’s majority decision [in Bostock]. And after some reflection, we think we know where he went wrong. Justice Gorsuch’s analysis did not begin with first principles. Rather, he simply assumed that decades of case law accurately interpreted Title VII. Indeed, he treated decades of precedent as part of the “law’s ordinary meaning” in 1964. Moreover, Justice Gorsuch failed to recognize the relationship between two essential phrases in Title VII: “discriminate against” and “because of.” These terms cannot be considered in splendid isolation. When combined, they reference discrimination based on bias or prejudice. In short, Justice Gorsuch built an elaborate textualist framework on a shaky foundation. Regrettably, this halfway textualism led Justice Gorsuch astray.

And from the core of the argument:

Let’s start with the first term. How was the phrase “discriminate against” understood in 1964? Justice Gorsuch cites the definition of “discriminate” from Webster’s 1954 New International Dictionary: “To make a difference in treatment or favor (of one as compared with others).” But that’s not the entire phrase used in the statute. Title VII refers to “discriminate against.” And the additional word “against” modifies the meaning.

To define “discriminate against,” Justice Gorsuch relied on a 2006 decision by Justice Breyer, which stated “no one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.” However, Justice Breyer was interpreting a different provision of Title VII that governed retaliation. Moreover, Justice Breyer made no effort to understand how “discriminate against” was understood in 1964. Instead, he relied on a 1989 decision by Justice William Brennan. But this decision did not turn on the meaning of “discriminate against.” Rather, Justice Brennan considered the phrase “because of.” Justice Gorsuch’s research trail slammed into a brick wall. Yet despite this incomplete analysis, Justice Gorsuch concluded that the phrase “to ‘discriminate against’ a person, then, would seem to mean treating that individual worse than others who are similarly situated.”

07/08/2020

Lee Strang on Jeremy Telman on Strang on Originalism
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted Originalism is a Successful Theory (In Part) Because of its Complexity: A Response to Professor D.A. Jeremy Telman, The Structure of Interpretative Revolutions (35 Const. Comment. __ (2020)) (34 pages) on SSRN.  Here is the abstract: 

Professor Telman’s review of Originalism’s Promise: A Natural Law Account of the American Constitution is thoughtful — it identifies positive contributions made by Originalism’s Promise and offers pointed criticisms where Professor Telman believes its arguments fall short. Professor Telman’s review is also an excellent example of the genre because it goes further and argues that Originalism’s Promise is itself a manifestation of originalism’s dire predicament, in Professor Telman’s view, its “crisis.” Professor Telman’s review continues his scholarly engagement with originalism, and originalism is the better for it.

In addition to the many and variety of particular criticisms Professor Telman lodges against Originalism’s Promise, three fundamental and inter-related critiques underlay much of his evaluation. First, Professor Telman claims that my conception of originalism does not adequately acknowledge or deal with stubborn constitutional indeterminacy. Second, he contends that the Constitutional Communication Model of originalism is too thin because it hews to a middle-road among different conceptions of originalism and this opens it up to “ideologically-driven and outcome-determinative” use. Third, Professor Telman asserts that Originalism’s Promise works so hard to force the theory to fit (a fundamentally nonoriginalist or eclectic) American constitutional practice that it exemplifies how originalism is fracturing under its complex intellectual “appendages.”

In this brief Response, I focus my remarks on these three fundamental contentions and argue that Originalism’s Promise is an example of a complex theory successfully grappling with the complex phenomenon it is attempting to explain. Its embrace of constitutional construction (with its premise of constitutional underdeterminacy) is a powerful example of the theory better fitting constitutional practice while, at the same time, becoming more complex. Originalism’s Promise navigates contemporary originalist scholarship and charts a path that incorporates (what is, to my lights) the best of the extant literature. This too, makes the theory more complex. I then argue that Originalism’s Promise exemplifies the complexity that any successful intellectual account of a complex phenomenon, like American constitutional practice, must possess in order to be persuasive to educated audiences. After briefly addressing Professor Telman’s post-originalist paradigm claim, in the last part, I address the most important of Professor Telman’s particular criticisms.

Professor Strang's important book is Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge Univ. Press 2019). Here is the book description from Amazon:

The foundation of the American legal system and democratic culture is its longstanding written Constitution. However, a contentious debate now exists between originalists, who employ the Constitution's original meaning, and Nonoriginalists, who argue for a living constitution interpretation. The first natural law justification for an originalist interpretation of the American Constitution, Originalism's Promise presents an innovative foundation for originalism and a novel description of its character. The book provides a deep, rich, and practical explanation of originalism, including the most-detailed originalist theory of precedent in the literature. Of interest to judges, scholars, and lawyers, it will help all Americans better understand their own Constitution and shows why their reverence for it, its Framers, and its legal system, is supported by sound reasons. Originalism's Promise is a powerful contribution to the most important theory in constitutional interpretation.

07/07/2020

The Faithless Electors Case: Not as Bad as it Might Have Been [Updated with Comment by Andrew Hyman]
Michael Ramsey

Monday's decision in Chiafalo v. Washington (the "faithless electors" case) was a relatively short, crisp, kind-of textualist/originalist opinion by Justice Kagan (for seven Justices, with Thomas, joined in part by Gorsuch, concurring separately).  John McGinnis had earlier feared a potential setback for originalism in this case if the Justices were swayed more by current policy intuitions than by attention to text and original meaning.  But, whatever they may have actually been swayed by, the opinion itself keeps policy to a minimum.  And, as Josh Blackman points out at Volokh Conspiracy, Justice Kagan has a nice two paragraphs about the difference between what the framers wrote and what they may have expected or hoped for: 

The Electors and their amici object that the Framers using those words expected the Electors' votes to reflect their own judgments. Hamilton praised the Constitution for entrusting the Presidency to "men most capable of analyzing the qualities" needed for the office, who would make their choices "under circumstances favorable to deliberation." The Federalist No. 68. So too, John Jay predicted that the Electoral College would "be composed of the most enlightened and respectable citizens," whose choices would reflect "discretion and discernment." The Federalist No. 64.

But even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors' discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors' votes should be.

Agreed (methodologically).  But I'm not so sure on the substance.  Justice Kagan's opinion depends largely on her conclusions that the states' power to "appoint, in such Manner as the Legislature thereof may direct, a number of Electors" conveys power to control the electors' votes (through fines or removal and replacement of electors violating instructions). True, she goes on to examine subsequent practice, with citations to the Noel Canning case -- but unlike Noel Canning, she uses the subsequent history to confirm, rather than depart from, the original meaning of the text.  (Thus Noel Canning dissenters Roberts and Alito join the majority here with no contradiction).  So the opinion really rests on the text.

And I am not so sure on the text.  Specifically, my problem is that the Constitution gives the states the power to appoint Senators (prior to the Seventeenth Amendment) in similar words: "The Senate of the United States shall consist of two Senators from each State, chosen by the Legislature thereof, for six years..."  But no one (so far as I know) thought states could control their Senators' votes once chosen.  Why are Senators different from electors?  

I suppose one could say that because Senators are specifically given a six-year term, states can't remove them.  But electors are also given a term, at least implicitly, lasting through the casting of the votes.  And even if states can't remove Senators because of the six-year term, why couldn't a state require its Senators to vote in a certain way, and fine them if they did not?

My answer is that the power to "chose" Senators doesn't include the power to direct how they vote (same with a President appointing Supreme Court Justices).  But by the same reasoning, the power to direct the manner in which an elector is appointed would not include the power to direct how the elector votes.  Perhaps the majority has an explanation for why the two are different, but I did not see it.

Justice Thomas doesn't do much better in concurrence.  He says that the power to direct the "manner" of appointment of electors does not say anything about the power to direct the electors' vote.  I agree. But then he says that, because nothing in the Constitution says the states can't direct the electors, that power is reserved to the states under the structure of delegated powers and the Tenth Amendment.  There's something to be said for that view.  But -- it too runs up against the problem of the Senators.  Nothing in the original Constitution said states couldn't direct Senators how to vote.  In fact, even after the Seventeenth Amendment it is still true that nothing in the Constitution says states can't direct Senators how to vote. 

Of course, maybe under the original Constitution states could direct Senators how to vote (though I think that would have been quite a surprise to the founding generation).  And again, maybe Senators are different from electors.  But I'm not sure how.

Nonetheless, the opinions are basically textualist/originalist, even if I have some doubts about the reasoning. And it's admittedly a difficult case.  So that should count as a win.

ANDREW HYMAN ADDS:   Even assuming the Court in Chiafalo was correct that states may disincentivize faithless voting by imposing subsequent fines, that’s very different from the question whether a state may snoop at an elector’s ballot, tear up the ballot if the vote is wrong, and replace the elector with someone who will hopefully vote the way the state wants.  As best I can tell, once an elector votes, the Twelfth Amendment imposes a non-discretionary duty to include that vote in a list that is then sealed and sent to the capitol; the electors “shall make distinct lists of all persons voted for as President....” 

07/06/2020

Randy Barnett on the Declaration of Independence
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: What the Declaration of Independence Said and Meant -- It officially adopted the political theory of the United States: securing the individual rights of We the People.  From the introduction:

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.

...

When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing "the People."

...

In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims. ...

07/03/2020

Andrew Koppelman: Bostock, LGBT Discrimination, and the Subtractive Moves
Michael Ramsey

Andrew Koppelman (Northwestern University School of Law) has posted Bostock, LGBT Discrimination, and the Subtractive Moves (Minnesota Law Review Headnotes, forthcoming) (34 pages) on SSRN.  Here is the abstract:

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced a series of subtractive argumentative moves in order to argue that the statute does not prohibit discrimination that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy.

This article catalogues and critiques the subtractive moves. One may focus on (1) the law’s prototypical referent, or (2) the categories of objects that it happens to bring to mind, or (3) distinctions that feel familiar but which do not appear in the statute, or (4) formalist exceptions that are unrelated to the law’s language, or (5) the general expectations that were part of the law’s cultural background. One may also (6) claim that the law, read in its cultural context, simply doesn’t mean what it literally says. Each of these reaches outside the statute in order to defeat the law’s literal command. This strategy maximizes judicial discretion and betrays the promise of textualism.

Via Larry Solum at Legal Theory Blog, who comments:

Highly recommended, but the assumption that textualism is a form of literalism is surely wrong.  Textualists aim to recover the communicative content conveyed by the text to its intended readership, not the literal meaning or sparse semantic content of the text considered acontextually.  Download it while it's hot!

07/02/2020

Eric Segall: Is Living Constitutionalism our Law?
Michael Ramsey

At Dorf on Law, Eric Segall: Is Living Constitutionalism our Law? A Response to Charles Barzun and Jack Balkin.  From the introdcution:

Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.

Both Balkin and Barzun believe that constitutional law is deeply affected by much more than just the Constitution's original meaning. ...

But Balkin also believes the Constitution's adaptability in the hands of judges is consistent with originalism (hence the title Living Originalism). In his view, the original Constitution sets forth rules, standards, and principles, and when the non-rule parts of the Constitution are litigated, judges should, indeed, must, treat them them as licenses to effectuate constitutional change. ... 

Barzun tells a similar story. He argues that the Supreme Court does not generally explain its decisions through pure moral reasoning or through reference to its own or our system's democratic legitimacy. ...

At the end of his blog post comes the kicker. Barzun, like Balkin, suggests that all of this change (living constitutionalism) is justified by the meaning of our original Constitution. He says the

approach I’ve just described has such a pedigree, as do the constitutional doctrines it has yielded. Those doctrines fit naturally with originalism because they are conceptualized as changing applications of constitutional principles in light of new facts—or new understandings of facts.... It is our law, and judges take an oath to support it.

And from the core of the argument:

There are at least two major objections to the general idea that living constitutionalism is authorized by the Constitution's original meaning. The first one is purely historical. As I detailed in my book Originalism as Faith, historians have shown that the framers both expected and wanted highly deferential judicial review. ...

Neither Balkin nor Barzun, nor most other originalists today, have wrestled with this problem (the original originalists didn't have this problem). The idea that judges should either pave the way for, or be the agents of, constitutional change would have shocked most of the founding generation. Professor Jud Campbell captured this idea beautifully in a magnificent article on how today's law of free speech has nothing to do with the first amendment's original meaning because the founding generation did not equate having rights, even natural law rights, with judicial enforcement of those rights. Strong, non-deferential judicial review may be good or bad, right or wrong, but it is not consistent with the original Constitution.

The second objection focuses more on today than yesterday. Both Balkin and Barzun describe the process of constitutional change richly and accurately. But neither fully address what Professor Christopher Sprigman has called the "making it all up" problem. Or, as Dean Erwin Chemerinsky observed in the Harvard Law Review Foreword in 1988, the Court's constitutional law decisions are nothing more or less than the aggregate of the value preferences of the Justices. ...

If my descriptive account is accurate, a real question is why society today would defer to unelected, life-tenured, elite lawyers to impose their values on the rest of us. ...

I agree with pretty much all of this, except: I think the Framers did believe in robust judicially enforceable rights, but they were the textual rights spelled out in the Constitution or the traditional rights incorporated by reference (as with the First Amendment).

07/01/2020

Gregory Maggs: A Guide and Index for Finding Evidence of The Original Meaning of The U.S. Constitution in Early State Constitutions and Declarations of Rights
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Guide and Index for Finding Evidence of The Original Meaning of The U.S. Constitution in Early State Constitutions and Declarations of Rights (98 N.C. L. Rev. 779 (2020)) (59 pages) on SSRN.  Here is the abstract:

When the original thirteen states declared independence from Great Britain, their former colonial charters became obsolete. Eleven states quickly addressed this situation by adopting state constitutions and, in some cases, declarations of rights to replace their charters. These state documents greatly influenced the drafting of the United States Constitution. Accordingly, scholars and judges often cite these early state documents when making claims about the original meaning of the U.S. Constitution. This Article provides a concise guide to this practice of finding evidence of the original meaning in these early state constitutions and declarations of rights. It explains the history of the documents, where to find them online, and how writers have used them to discern the original meaning of the U.S. Constitution. The Article includes a comprehensive index, with more than 1700 entries, to help researchers discover relevant provisions.

Other articles in this very valuable series by Professor Maggs:

A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution

A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution

A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution

A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution

A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning

A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution

06/30/2020

Are (Most) Independent Agencies Unconstitutional after Seila Law v. CFPB?
Michael Ramsey

I think maybe they are.

On its face, the Supreme Court's ruling Monday in Seila Law LLC v. Consumer Financial Protection Bureau looks modest.  The Court (per Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh) declined to extend the rule of Humphrey's Executor (approving multimember independent agencies) to agencies such as the CFPB that are headed by a single director.  That sounds a lot like the Chief Justice's opinion ten years ago in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010) (declining to extend the rule of Humphrey's Executor to second-tier independent agencies).  So the longstanding independent agency structure (single tier, mulitmember) isn't threatened, but new structures giving more power and protection to agencies won't stand.

But a closer look suggests that Seila lays the groundwork for a larger attack on the agencies.  First, the opinion gives a strong endorsement to the unitary executive.  From the introduction:

Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010), we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties,” id., at 513–514. “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Id., at 514.

The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926).

And repeating this point later:

Article II provides that “[t]he executive Power shall be vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. The entire “executive Power” belongs to the President alone. But because it would be “impossib[le]” for “one man” to perform all the great business of the State,” the Constitution assumes that lesser executive officers will “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939).

These lesser officers must remain accountable to the President, whose authority they wield. As Madison explained, “[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong. 463 (1789). That power, in turn, generally includes the ability to remove executive officials, for it is “only the authority that can remove” such officials that they “must fear and, in the performance of [their] functions, obey.” Bowsher, 478 U. S., at 726 (internal quotation marks omitted).

And expanding on the political philosophy behind this structure:

The Executive Branch is a stark departure from [the Constitution's division of power]. The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that “differences of opinion” and the “jarrings of parties” would “promote deliberation and circumspection” and “check excesses in the majority.” See The Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51, at 350. By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. See id., No. 70, at 475–478. As Madison put it, while “the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.” Id., No. 51, at 350.

The Framers deemed an energetic executive essential to “the protection of the community against foreign attacks,” “the steady administration of the laws,” “the protection of property,” and “the security of liberty.” Id., No. 70, at 471. Accordingly, they chose not to bog the Executive down with the “habitual feebleness and dilatoriness” that comes with a “diversity of views and opinions.” Id., at 476. Instead, they gave the Executive the “[d]ecision, activity, secrecy, and dispatch” that “characterise the proceedings of one man.” Id., at 472.

To justify and check that authority—unique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation. And the President’s
political accountability is enhanced by the solitary nature of the Executive Branch, which provides “a single object for the jealousy and watchfulness of the people.” Id., at 479. The President “cannot delegate ultimate responsibility or the active obligation to supervise that goes with it,” because Article II “makes a single President responsible for the actions of the Executive Branch.” [Free Enterprise Fund, at 496–497]...

The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. Through the President’s oversight, “the chain of dependence [is] preserved,” so that “the lowest officers, the middle grade, and the highest” all “depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong. 499 (J. Madison).

Second, the opinion reads the exceptions to the unitary structure -- Humphrey's Executor and Morrison v. Olson -- very narrowly.  As to Humphrey's Executor:

[T]he contours of the Humphrey’s Executor exception depend upon the characteristics of the agency before the Court. Rightly or wrongly, the Court viewed the FTC (as it existed in 1935) as exercising “no part of the executive power.” [Humphrey's], at 628. Instead, it was “an administrative body” that performed “specified duties as a legislative or as a judicial aid.” Ibid. It acted “as a legislative agency” in “making investigations and reports” to Congress and “as an agency of the judiciary” in making  recommendations to courts as a master in chancery. Ibid. “To the extent that [the FTC] exercise[d] any executive function[,] as distinguished from executive power in the constitutional sense,” it did so only in the discharge of its “quasi-legislative or quasi-judicial powers.” Ibid. (emphasis added).

This paragraph is a very big deal, because it describes Humphrey's Executor in a way that doesn't cover most modern independent agencies (including, as Justice Thomas points out wryly in his separate opinion, the modern FTC itself).  Thomas' separate opinion (joined by Justice Gorsuch) calls for overruling Humphrey's Executor, but if you describe Humphrey's Executor as the Court does in this paragraph, you don't need to overrule it because it largely lacks force.  I assume that's why Justice Kavanaugh didn't join Thomas' opinion.

And in addition:

We have recognized a second exception for inferior officers [emphasis in the original] in two cases, United States v. Perkins and Morrison v. Olson...

Morrison describes the independent counsel's status as a subordinate officer as one factor in concluding that the removal provision didn't unduly limit the President's power.  But I wouldn't have said (until now) that subordinate status was essential to the outcome.

Thus, this key summary:

These two exceptions—one for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority—“represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.” PHH, 881 F. 3d, at 196 (Kavanaugh, J., dissenting).

I would think there are quite a few agencies that don't fit either of these exceptions -- that is, their members "wield substantial executive power" and are not "inferior officers with ... no policymaking authority."  True, these are typically multimember agencies.  But the quote above doesn't say that the Humphrey's Executor exception applies to multimember agencies.  It says the Humphrey's Executor exception applies to multimember agencies that do not wield substantial executive power.

It's also true that the opinion hedges -- it repeats several times that the CFPB structure is a "historical anomaly," or very nearly so.  For example:

“Perhaps the most telling indication of [a] severe constitutional problem” with an executive entity “is [a] lack of historical precedent” to support it. [Free Enterprise Fund], at 505. An agency with a structure like that of the CFPB is almost wholly unprecedented.

And later:

With the exception of the one-year blip for the Comptroller of the Currency, these isolated examples [raised by respondent and the dissent] are modern and contested. And they do not involve regulatory or enforcement authority remotely comparable to that exercised by the CFPB. The CFPB’s single-Director structure is an innovation with no foothold in history or tradition.

The opinion also emphasizes the single-director structure, which concentrates power in a way that multimember agencies do not:

The CFPB’s single-Director structure contravenes [the Framers'] carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one. The Director is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is. The Director does not even depend on Congress for annual appropriations. See The Federalist No. 58, at 394 (J. Madison) (describing the “power over the purse” as the “most compleat and effectual weapon” in representing the interests of the people). Yet the Director may unilaterally, without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties. With no colleagues to persuade, and no boss or electorate looking over her shoulder, the Director may dictate and enforce policy for a vital segment of the economy affecting millions of Americans.

So most existing mulitmember agencies can argue that unlike the CFPB (a) their structure isn't novel (at least, since the 1930s) and (b) they don't have the concentration of power problem.

But if the Court is serious about (a) reading Humphrey's Executor and Morrison narrowly in the way the opinion describes them and (b) upholding the unitary executive except as compelled by Humphrey's Executor and Morrison, independent agencies should be worried.  I think that's the right originalist outcome.

06/29/2020

Neal Goldfarb: The Use of Corpus Linguistics in Legal Interpretation
Michael Ramsey

Neal Goldfarb (Georgetown University Law Center) has  posted The Use of Corpus Linguistics in Legal Interpretation (2021 Annual Review of Linguistics. Vol. 7, forthcoming) (30 pages) on SSRN.  Here is the abstract:

Over the past decade, the idea of using corpus linguistics in legal interpretation has attracted interest on the part of judges, lawyers, and legal academics in the United States. This paper provides an introduction to this nascent movement, which is generally referred to as “Law and Corpus Linguistics” or “LCL”. After briefly summarizing LCL’s origin and development, we will situate LCL within legal interpretation, by discussing the legal concept of “ordinary meaning,” which establishes the framework within which LCL operates, and within linguistics, by identifying the subfields that are most relevant to LCL. We will then offer a linguistic justification for an idea that is implicit in the case law and that provides important support for using corpus analysis in legal interpretation: that data about patterns of usage provides evidence of how words and other expressions are ordinarily understood. We go on to discuss linguistic issues arising from the use of corpus linguistics in dealing with disputes involving lexical ambiguity and categorization. The paper concludes by pointing out some challenges that the growth of LCL will present for both legal professionals and linguists.

RELATED:  At LAWnLinguistics, Neal Goldfarb: Comments on two responses to my (mostly corpus-based) analysis of the Second Amendment. Part 1: Gun-rights advocates’ amicus brief (responding to this professors' amicus in Young v. Hawaii [9th Circuit]).