John McGinnis on Originalism and Independent Agencies
Michael Ramsey

At Law & Liberty, John McGinnis: Independent Agencies Brought to Heel? (discussing the Seila Law case, to be argued to the Supreme Court next week).  From the introduction:

Independent agencies—agencies whose heads cannot be fired by the President at will—raise profound questions of constitutional structure and political accountability. The Constitution vests the executive power in a single person—the President of the United States. Yet independent agencies can wield some of that power outside of presidential control. Democratic political theory prizes policy accountability to elected officials. But once appointed, the principal officers of independent agencies are not directly accountable to anyone. Such agencies, like the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC), continue to grow in importance with the burgeoning of the administrative state.


Next Tuesday, the Supreme Court will hear arguments about the constitutionality of the Consumer Financial Protection Bureau (CFPB) [ed.: in Seila Law LLC v. Consumer Financial Protection Board]. I predict that the Supreme Court, probably in an opinion by Chief Justice John Roberts, will find that this agency is unconstitutional without ruling directly that all independent agencies are unconstitutional. The CFPB is different from most traditional independent agencies in two ways: It has a single director, rather than a board of politically balanced commissioners, and it has an independent funding source because it enjoys access to a percentage of the revenues of the Federal Reserve, another independent agency. It thus trenches on the President’s authority more than the traditional independent agency because he may face the power of a single director appointed by a President of an opposing party and because he has no leverage in the appropriation process, where he would generally be able to wield his veto power.

It is not clear how much difference these formal distinctions make for the actual freedom of action of independent agencies. But the opinion will likely mirror a previous opinion that the Chief Justice wrote in Free Enterprise v. Public Accounting Oversight Board, in which he took the unitary executive promised by Article II’s vesting of executive power in the President and the political accountability that it provides as the constitutional baseline. The opinion will almost certainly not challenge independent agencies run by bipartisan commissions and dependent on yearly appropriations because they have previously been upheld by the Court. But these agencies will be treated as exceptions to the general rule that the President should control his agents. The unitary executive will become the background rule with islands of historical exceptions. As I have noted before, this approach is the characteristic way that John Roberts deploys originalism—not to overturn precedent that contradicts original meaning but to limit its generative force.

I hope he is right; this is the approach urged in the originalist separation of powers amicus curiae brief in Seila Law.

I also think Seila Law undermines the complaint that originalism has become so multifarious in its forms that it can't agree on any outcomes of consequence.  (For example, in this recent review by Jeremy Telman, and also in an array of commentary by leading originalism critic Eric Segall.)  To the contrary, I see widespread agreement among originalist scholars and originalist-oriented judges and Justices that "independent" (that is, for-cause removal) agencies, to the extent they exercise executive power, are inconsistent with the original meaning of Article II.  To be sure, there are opposing textual and historical arguments advanced by scholars and judges who are not themselves originalists.  But I think within the originalist "family" there is a strong consensus here (even if there is not full agreement on the methodology, the normative justifications, or the modern implications).

RELATED:  In The Atlantic, Mario Loyola: Trump’s DOJ Interference Is Actually Not Crazy (among other things, describing broad support for the idea of presidential control over executive and independent agencies among conservative and originalist scholars and judges).   (Via Iain Murray at Instapundit).


Jeremy Telman Reviews "Originalism's Promise" by Lee Strang
Michael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted The Structure of Interpretive Revolutions (Constitutional Commentary, forthcoming) (30 pages) on SSRN.  Here is the abstract:

This Essay reviews Lee Strang’s natural law defense of originalism, Originalism’s Promise. The Essay first summarizes Strang’s argument, which has both descriptive and normative components. The descriptive component, Strang’s “communication model,” offers both historical and prudential arguments for why we should accept an originalist account of our constitutional history and practice. The normative component, Strang’s “coordination model,” offers an Aristotelian defense of originalism as the best way to promote human flourishing and the common good.

This Essay next offers four criticisms of Strang’s approach. First, Strang understates the problems of constitutional indeterminacy, because he has not adequately addressed the level of generality problem. Second, Strang’s communication model adopts an under-theorized order of operations. If one follows Strang’s approach but changes the order of operations, one can manipulate the theory to produce any pre-determined outcome. Third, Strang exaggerates both the extent of consensus among originalist scholars and the qualitative differences between originalism and non-originalism. Finally, Strang presents a heavily majoritarian perspective on the Constitution, which cannot account for the role of federal courts in protecting individual rights against majoritarian encroachments.

The Essay then uses Strang’s book as an illustration of the collapse of the originalist paradigm. Originalism is now a dysfunctional family of related theories. It has become too incoherent to serve as a useful description of our constitutional tradition, nor can its adherents agree on its normative basis. At the same time, Strang’s book illustrates the increasing divide between originalist scholarship and the popular constitutionalism that animated early originalism. While popular originalism still preaches judicial restraint, academic originalism confidently advocates reversal of precedent, while providing the federal judiciary with the power to veto state and federal laws and regulations. The Essay concludes by indicating some of the characteristics of the emerging post-originalist paradigm for understanding our tradition of constitutional interpretation and implementation.

Here is a link to Professor Strang's book, Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge Univ. Press 2019).  As an aside, the review is not as negative as the abstract suggests, and it contains a good bit of praise for Professor Strang's project (while at the same time making some sharply pointed criticisms).


Randy Barnett: Three Keys to the Original Meaning of the Privileges or Immunities Clause
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) has posted Three Keys to the Original Meaning of the Privileges or Immunities Clause (Harvard Journal of Law and Public Policy, Vol. 43, No. 1, 2020) (13 pages) on SSRN.  Here is the abstract: 

Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable.

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


Justice Thomas on Mandatory Original Jurisdiction
Michael Ramsey

In yesterday's dissent from denial of cert (actually, denial of a motion for leave to file a bill of complaint) in Arizona v. California, Justice Thomas questions the Court's ability to refuse to hear a case arising under original jurisdiction (in this case, where a state is a party): 

Today the Court denies Arizona leave to file a complaint against California. Although we have discretion to decline review in other kinds of cases, see 28 U. S. C. §§1254(1), 1257(a), we likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States.

The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” §2, cl. 2 (emphasis added). In this circumstance, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

Our original jurisdiction in suits between two States is also “exclusive.” §1251(a). As I have previously explained, “[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief.” Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable.

The Court has provided scant justification for reading “shall” to mean “may.” It has invoked its “increasing duties with the appellate docket,” Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (internal quotation marks omitted), and its “structur[e] . . . as an appellate tribunal,” Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 498 (1971). But the Court has failed to provide any analysis of the Constitution’s text to justify our discretionary approach.

I agree that the text seems to point to mandatory rather than discretionary review (at least for constitutional claims) and that the Court has been pretty lame in explaining why the contrary rule is justified.  (Seriously, the argument is that mandatory review would require it to work too hard?)  So Justice Thomas seems, as is often the case, both reasonable and way out in front of anyone else (except Justice Alito, who concurred with Thomas) on this issue.

On the other hand, does Arizona even have standing to bring the claim?  The question is whether California's application of a tax to Arizona limited-liability corporations that invest in California corporations is constitutional.  Surely the Arizona LLCs can bring the claim on their own behalf?  Do states have standing to bring claims when their citizens are injured?


Ilya Somin on Nondelegation and Travel Bans
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: A Nondelegation Challenge to Trump's Travel Bans.  From the introduction: 

President Trump's recently announced expanded travel ban policy has most of the same moral, policy, and constitutional flaws as his previous travel bans. Nonetheless, the conventional wisdom holds that there is little, if any prospect of successfully challenging it in court, because the most obvious arguments against it were rejected by the Supreme Court in Trump v. Hawaii, which ruled against legal challenges to the previous travel ban policy, of which the new one is an expansion.

... [B]oth the previous travel ban policy and the new expanded version are vulnerable to constitutional challenge on a basis that was never even considered by the Supreme Court in Trump v. Hawaii: nondelegation. And it's a basis that could potentially prove appealing to at least some of the very same conservative justices who were crucial to the majority in Trump. Liberal justices might support it too.

Nondelegation is the idea that Congress cannot delegate legislative power to the executive branch. The Constitution gives legislative power to Congress, not the president. Thus, there must be some limit to Congress' ability to give the latter the power to determine what is or is not illegal. For example, it would surely be unconstitutional for Congress to give the president the power to ban any private activity  he wants, so long as he decides doing so would be in the public interest.

Where to draw the line between legitimate discretion and impermissible  delegation is a hard issue that has bedeviled judges and legal scholars. For a long time, in fact, the conventional wisdom was that the Supreme Court had no interest in giving nondelegation doctrine any teeth. But last year's ruling in Gundy v. United States shows that at least four conservative justices are interested in enforcing the doctrine more robustly than has so far been the case. Indeed, even the four liberals may be willing to give it at least some modest teeth- enough, as we shall see, to place the travel bans in peril.

As interpreted by the majority opinion in Trump v. Hawaii, federal law grants the president virtually unlimited discretion to exclude immigrants and other potential entrants into the United States, for almost any reason he wants. If that doesn't qualify as an unconstitutional excessive delegation, it is difficult to see what does.

Perhaps, but I'm not convinced that this is the best vehicle for pursuing a revived nondelegation doctrine (assuming that's an originalist goal, contra this article).  First (as Professor Somin acknowledges) there's an argument that excluding aliens at the border is an independent constitutional authority of the President, apart from any delegation; Justice Thomas made this argument in concurrence in Trump v. Hawaii.  Second, it may be that the nondelegation doctrine has less force in foreign affairs that it does elsewhere.  That was the actual holding of the Curtiss-Wright case, and (unlike that case's unsupportable dicta) it might have some foundation in the original design.  (Mike Rappaport suggested an originalist "selective" nondelegation doctrine that might have less force in foreign affairs in this article).


Mark Graber: Original Expectations
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Original Expectations (Connecticut Law Review, forthcoming) (29 pages) on SSRN.  Here is the abstract:

Professor Kay’s increasingly lonely crusade for interpreting constitutional provisions in light of their original intentions captures how constitutions should be implemented immediately after ratification, with the important proviso that expectations matter as much as intentions. Insisting that the constitution on day one mandates X even though everyone responsible for the constitution thought the constitution mandated not-X violates common sense. A jurisprudence of original intentions at day one acknowledges that constitutions are political documents that serve political purposes and avoids making linguistic theory the practical arbiter when debates break out over impeachment procedures, the regulation of slavery, and the status of state sovereign immunity. At day one, Professor Kay’s originalism best captures the constitutional commitment to rule of law and the underlying constitutional politics of ratification. Intentions and expectations guide the planning processes facilitated by the rule of law. Framers, at least in the United States, spend far more energy making predictions about how the constitution will work than in laying out the meaning of particular phrases. The persons responsible for a constitution focus on intentions and expectations rather than meanings because their concern is with how the constitution as a whole will work and not with the best interpretation of a particular constitutional clause.

The reasons for preferring original intentions/expectations to original public meanings at day one provides grounds for abandoning all originalisms at day ten. If original public meaning cedes too much constitutional authority to linguists at the moment of ratification, both original public meaning and original intentions/expectations cede too much constitutional authority to historians over time. Doctrinalism at day ten better captures the constitutional commitment to rule of law than any form of originalism. People when planning are far more likely to assume that constitutional decision makers will continue to do what they are doing than base decisions on original public meanings that may be unknown to both the planners and constitutional decision makers. Purposivism at day ten better incorporates constitutional developments, particularly those constitutional developments ratifiers did not anticipate, than either original public meaning or original intentions/expectations.


Originalist Showdown over Employment Division v. Smith?
Michael Ramsey

In The New Republic, Matt Ford: Conservative Supreme Court Justices Take Aim at Scalia.  From the introduction:

Justice Antonin Scalia, who died four years ago last week, is among the most celebrated figures in the conservative legal movement. ...

But that reverence does not extend to one of his most influential opinions: the majority decision he authored in Employment Division v. Smith in 1990.  In Smith, Scalia concluded that courts could not use the First Amendment’s free exercise clause to carve out exemptions from “neutral laws of general applicability”—in that case, Oregon’s criminalization of peyote. The ruling drew criticism from religious groups across the country and led to a wave of religious freedom legislation that sought to provide protections that the court refused to enforce on its own.

Three decades later, a coalition of religious groups and legal scholars is now asking the Supreme Court to overturn its ruling in Smith through a new case, Ricks v. Idaho Contracting Board. It argues that Scalia’s concerns about judicial power proved to be largely unfounded, that he misunderstood the framers’ vision of free-exercise protections, and that the ruling has unfairly burdened religious minorities in such cases ever since. If the justices agree to take up the case, the court’s conservative justices could ultimately scrap one of their icon’s most influential decisions.

If the Court takes on challenge to Smith, it will be an originalist event of major proportions.  The originalist arguments on both sides are very strong.  At the Federalist Society Lawyer's Convention last November, I saw Michael McConnell (Stanford) debate Philip Hamburger (Columbia) on the topic and concluded (1) those are two extraordinarily impressive originalist scholars and (2) I have no idea who's right.

Justice Scalia did not help himself with an uncharacteristically weak opinion in Smith (somewhat reinforced by his concurrence in the later case Boerne v. Flores).  His core conclusion in Smith was only that the claimants had not proved that the original meaning of the free exercise clause required exceptions to generally applicable laws.  But substantial originalist scholarship since then (especially by Professor McConnell) has undertaken to prove that proposition, and lawyers are much more sophisticated in making originalist arguments now.

I hope the Court will hear the Ricks case.  Among other things, you can't top these facts (from Ford): 

The case centers around George Ricks, an Idaho contractor who refused to provide his social security number when registering with the Idaho Bureau of Occupational Licenses in 2014. In his petition for the court, Ricks’s lawyers say he has “long had concerns, based on his understanding of the Bible, that it is morally wrong to participate in a governmental universal identification system, especially to buy or sell goods and services.” More specifically, Ricks asserted in a self-written filing in state court that he believes his social security number is “a form of the mark, and in substance (essence) the number of the 2-horned beast written of in the Holy Bible.”


Originalism Works in Progress Conference in San Diego
Michael Ramsey

Today and tomorrow we will host the Eleventh Annual Hugh and Hazel Darling Foundation Originalism Works in Progress Conference at the University of San Diego Law School.  Here is the lineup of papers and commentators: 


Josh Blackman on Executive Power
Michael Ramsey

At Volokh Conspiracy, Josh Blackman:  New Op-Ed in the Washington Post: "The Constitution does not place a wall between the president and the Justice Department".  From the introduction:

The Washington Post invited me to write an op-ed about President Trump, Attorney General Barr, Roger Stone's sentencing. It is titled, "Trump has the constitutional power to intervene in Roger Stone's sentencing. The Constitution does not place a wall between the president and the Justice Department."

Here is the introduction:

President Trump tweeted last week that he has the "legal right" to tell Attorney General William P. Barr how to handle Roger Stone's prosecution — bringing the fury of the legal establishment down on him. Federal prosecutors had recommended a seven-to-nine-year sentence for Stone, who was convicted of perjury and witness tampering. Trump tweeted that the recommendation was "horrible and very unfair." Subsequently, the Justice Department dropped the recommendation.

More than 2,000 former Justice Department employees promptly declared in an open letter that they "condemn" Trump and Barr's "interference in the fair administration of justice." Donald Ayer, who served as deputy attorney general under President George H.W. Bush, wrote in the Atlantic magazine of Barr's complicity in the sentencing shift: "Given our national faith and trust in a rule of law no one can subvert, it is not too strong to say that Bill Barr is un-American."

Un-American? Absolutely not. Unconstitutional? Not even close. Unwise? Yes. As a policy matter, the president should stay out of sentencing decisions, especially those involving his friends. But the president is correct that he has the legal authority to intervene in the case. The Constitution does not create a wall of separation between the president and the Justice Department. To the contrary, the Constitution vests the "executive power" in the president. And the decision whether and how to prosecute someone ultimately belongs to the president.

Agreed.  I made similar points here, though Professor Blackman is as always more eloquent and insightful.

RELATED: From Glenn Reynolds at Instapundit:

Also, the idea that a president shouldn’t be involved in these decisions is anti-constitutional. The executive power — all of it — is vested in the president by Article II of the Constitution. The rules of custom and etiquette that have grown up to the effect that presidents should stay at arms length may be a good idea — or not — but they have nothing to do with the Constitution and to the extent they purport to limit the president are actually in contradiction to the constitution.

Correct.  The President is the chief law enforcement officer of the U.S. government in the same sense that he is the commander-in-chief of the U.S. armed forces.  He is constitutionally the ultimate authority (although it's usually best if he leaves operational matters to the attorney general and the joint chiefs, once they have his confidence).


Travis Crum: The Superfluous Fifteenth Amendment?
Michael Ramsey

Travis Crum (University of Chicago Law School) has posted The Superfluous Fifteenth Amendment? (Northwestern University Law Review, Vol. 114, forthcoming) (80 pages) on SSRN.  Here is the abstract:

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate — the “Article V debate” — in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both a statute and an amendment. Moderate Republicans rejected the statutory option because they believed that Congress lacked enforcement authority under the Fourteenth Amendment to impose voting qualifications on the States and that an amendment was the only politically viable option.

Given this historical evidence, this Article argues that the Fifteenth Amendment was a significant expansion of congressional authority to regulate voting rights in the States and that Congress’s Fifteenth Amendment enforcement authority is distinct from — and broader under current doctrine than — its Fourteenth Amendment enforcement authority. The Article V debate offers a persuasive reason for overturning Boerne’s congruence and proportionality test or, at a minimum, cabining it to the Fourteenth Amendment. Accordingly, laws enacted under Congress’s Fifteenth Amendment enforcement authority should be reviewed under Katzenbach’s rationality standard and the Voting Rights Act (VRA) would be on firmer constitutional ground.

(Via Larry Solum at Legal Theory Blog.)

As noted earlier, Professor Crum recently blogged about the Fifteenth Amendment at Election Law Blog.  Originalists, I would think, should be entirely supportive of this project. The Fifteenth Amendment should not be treated as superfluous.  (Whether some of his specific conclusions follow as an original matter is a more doubtful proposition).


Greg Weiner on Impeachment and Constitutional Design
Michael Ramsey

At Law & Liberty, Greg Weiner: The Constitution’s Ugly Win.  From the introduction:

One need not see President Trump’s impeachment and trial as Congress’ finest hour to recognize it as a respectable moment for the Constitution. The House may have acted hastily; the Senate may have prejudged the case; both bodies may have dug into partisan rather than institutional trenches. But the architecture of the regime worked in its most basic function of refining and enlarging—which entails ultimately respecting—the public’s views.

The Constitution’s purpose is not to do perfect justice. It is to combine the principle of deliberate majority rule with accommodation of intensely held minority views. There is a reason the nation’s Latin motto is e pluribus unum (“from many, one”), not fiat justitia ruat caelum (“let justice be done though the heavens fall”).

In the end, the Constitution is a mechanism for enabling the people to govern themselves without coming apart. That entails an underlying ideal of majority rule but also institutions that encourage accommodation of political minorities. If America is going to remain polarized, and all indications are that it is for the moment, we had best start learning to respect both principles.

RELATED:  At Prawfsblawg, Tuan Samahon (Villanova), guest-blogging, asks:

One potential proposition from [the Trump impeachment] that could serve as precedent is that the Senate need not allow any witnesses at any impeachment trial. What if a future accused wants defense witnesses yet the Senate majority finds no constitutional duty to hear from them in order to "try" an accused and instead it elects to convict on the basis of a "coin toss" or its view the accused is a really "bad guy," to invoke Souter's hypotheticals [in Nixon v. United States]?  

My tentative thought on this question is that the Senate cannot convict without hearing from defense witnesses (if the defense wants witnesses), at least if defense witnesses were not allowed in the House proceedings.  The word "try" in Article I, Section 3 entails hearing from the defense; in the eighteenth-century understanding, it would not be considered a legitimate trial if there was no opportunity to present a defense (as the Sixth Amendment suggests, although that Amendment isn't directly applicable).  The Trump precedent isn't to the contrary.  The prosecution had witness testimony in the House.  And courts can dismiss prosecutions if the prosecution's case is flawed legally or factually.  That's still a trial.  But conviction without hearing from the defense wouldn't be considered a valid trial now nor in the founding era.

Whether the courts could overrule a Senate that convicted without defense witnesses is a different question.  I'm with Justice Souter on this one.  The Senate has "sole Power to try" so the trial procedures are committed to the Senate without judicial review.  But the Senate still must "try," not do something other than try (like a coin toss).  And without a defense it's not a trial.  So I would say, on textual grounds, the courts could intervene.  But I generally don't think much of the political question doctrine in most of its manifestations, so I'm not entirely unbiased.


Jane Manners & Lev Menand: Removal Permissions and the Forgotten Tenure of a Term of Years
Michael Ramsey

Jane Manners (Columbia Law School) and  Lev Menand (Columbia Law School) have posted Removal Permissions and the Forgotten Tenure of a Term of Years (97 pages) on SSRN.  Here is the abstract:

Under what circumstances can the President remove the head of an independent agency? Does the Constitution place a limit on an agency’s independence and if so, what is it? Precedents that have been settled for generations may be unsettled this term when the Supreme Court faces these questions in a lawsuit challenging the constitutionality of the Consumer Financial Protection Bureau (CFPB). The CFPB’s enabling statute, like the enabling statutes of over a dozen other agencies, authorizes the President to remove the CFPB’s Director for inefficiency, neglect of duty, or malfeasance in office (INM). But Presidents have respected the independence of officials like the CFPB Director for so long that there is little awareness today of what these terms mean or what sort of relationship they create between the President and the officials she can remove on these grounds. This Article addresses that gap. It resurrects the lost history of removal law and defines INM. It shows that neglect of duty and malfeasance in office are common law terms relating to faithful execution that date back hundreds of years and that inefficiency is a nineteenth century concept having to do with government waste and ineptitude. It further shows that INM provisions are not removal “protections” as they have come to be interpreted in recent years, but removal permissions. Where present, they expand the President’s power by authorizing her to remove officials who are tenured for a term-of-years, a tenure long understood to bar removal—for any reason—by the President in the middle of an officer’s term. Three conclusions follow. First, INM was not written to empower the President to direct agency actions. Independent agency heads really were meant to exercise their discretionary authority independently. Second, even under an expansive reading of Article II, “for cause” removal provisions do not conflict with the Constitution’s Take Care Clause. INM permits the President to combat “unfaithful execution” by empowering her to remove officials for neglect of duty and malfeasance in office. Third, courts have erred by regularly reading INM into enabling statutes that are silent on removal. Where such statutes create offices “for years,” they presumptively prohibit removal—whether summarily or for cause.

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


Nicholas Zinos: Fundamental Rights in Early American Case LawMichael Ramsey

Nicholas Zinos (Mitchell Hamline School of Law) has posted Fundamental Rights in Early American Case Law: 1789-1859 (British Journal of American Legal Studies Vol. 7, Spring 2018) (32 pages) on SSRN.  Here is the abstract:

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

(From 2018 but only now posted on SSRN).


Evan Zoldan: Corpus Linguistics and the Dream of Objectivity
Michael Ramsey

Evan C. Zoldan (University of Toledo College of Law) has posted Corpus Linguistics and the Dream of Objectivity (50 Seton Hall Law Review 401 (2019)) (48 pages) on SSRN.  Here is the abstract: 

A growing number of scholars and judges have embraced corpus linguistics as a way to interpret legal texts. Their stated goal—to make legal interpretation more objective—is an admirable one. But, is their claim that corpus linguistics can reduce the subjectivity associated with judicial intuition and biased data more than just a dream? This Article analyzes the use of corpus linguistics for statutory interpretation and concludes that this novel practice does not live up to its promise to make legal interpretation more objective. Instead, the use of corpus linguistics relies on judicial intuition and biased data, disrupting its proponents’ dream of objectivity.

I have some similar concerns.


On the Stone Sentencing [Updated]
Michael Ramsey

With the uproar over the Roger Stone sentencing episode, including supposed presidential bullying of the Attorney General and the Attorney General's supposed interference in the prosecution, it seems appropriate to review basic constitutional points.

(1) The President is the federal government's chief law enforcement officer.  As Professor Saikrishna Prakash has said (in 134 pages), that is "The Essential Meaning of the Executive Power," which Article II, Section 1 vests in the President.  This power encompasses the power to bring prosecutions, to decline to bring prosecutions (prosecutorial discretion) and to recommend sentences.  Although there are a range of academic views regarding the powers of the President under the original Constitution, most of them accept this core power; the debate is what additional powers, if any, the President has (e.g., here and here).

(2) The Attorney General is the principal officer through which the President exercises the executive power of law enforcement.  He is, as Jefferson said of the Secretary of State, like a pen in the hand of the President -- an extension of the President's will, a tool with which the President exercises his power.  In turn, the Attorney General is the head of the Department of Justice, whose employees are subordinates and extensions of his will.

(3)  Federal courts have authority over sentencing, and are part of an independent branch of government over which the President has no authority or control (and whose life-tenured appointments assure that independence).

(4) Separate from the power of law enforcement, the President has the express power to pardon federal offenses (including the power to commute sentences).

It follows from this:

(a) The President can say anything he wants to about sentencing recommendations, formally or informally.  Judges may take it into account, or not.

(b) The President can direct the Attorney General to make sentencing recommendations the President thinks are appropriate.  The Attorney General must comply (or resign).  Or the President can make just a suggestion, which the Attorney General might (but probably won't) ignore.

(c) The Attorney General can direct his subordinates to make sentencing recommendations that the Attorney General thinks are appropriate.  The subordinates must comply (or resign).  The Attorney General may generally leave sentencing recommendations to the discretion of his subordinate prosecutors, but that is his decision to make (or not).

(d) If the President thinks a sentence is too harsh, he can reduce it through the pardon power (which, though a separate power, reinforces points (a) through (c) above: if the President has ultimate control over federal sentences through the pardon power, the fact that he has power over sentencing recommendations -- which are only recommendations -- does not seem so weighty).

These conclusions are not altered if the person being sentenced is a friend (or enemy) of the President.  The structure and powers of the executive are stated generally, without exceptions.

Perhaps this is a bad system.  It puts the President in charge of prosecuting his friends (and his enemies) if they violate federal law.  We might be better off with a separately elected independent attorney general (that's what we have at the state level in California).  But at the federal level, the Constitution is clear that we don't have that system, because it gives the executive power to the President without qualification.  Perhaps Congress could change the federal structure by statute, at least in part, as the Supreme Court held in Morrison v. Olson (though I doubt it, under the Constitution's original meaning).  But Congress has not changed the structure as applicable here.

I don't think these points are materially in dispute as a matter of original meaning or modern law.  But some people in the Stone sentencing kerfuffle seem to have lost sight of them.

And as should be clear, these thoughts are addressed only to the constitutionality of actions relating to the Stone episode, not to their prudence.

UPDATE: Via the Washington Post, President Trump says "he has the 'legal right' to ask his top law enforcement official to get involved in a criminal case."  Yes he does.  Anyone who thinks otherwise has a strange idea of executive power.


Judge Patrick Bumatay on Originalism and the Eighth Amendment
Michael Ramsey

Newly appointed Ninth Circuit Judge Patrick Bumatay, dissenting from denial of rehearing en banc in Edmo v. Corizon, Inc. has this originalist overview of the Eighth Amendment (the issue in the case is whether the Eighth Amendment requires Idaho to pay for a prisoner's gender-reassignment surgery): 

In holding that Idaho violated the Eighth Amendment, the panel opined that the Constitution’s text and original meaning merited “little discussion.” See Edmo, 935 F.3d at 797 n.21. I disagree.

As inferior court judges, we are bound by Supreme Court precedent. Yet, in my view, judges also have a “duty to interpret the Constitution in light of its text, structure, and original understanding.” NLRB v. Noel Canning, 573 U.S. 513, 573 (2014)  Scalia, J., concurring). While we must faithfully follow the Court’s Eighth Amendment precedent as articulated in Estelle v. Gamble, 429 U.S. 97 (1976), and its progeny, “[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S. 477 (2010). Accordingly, the Eighth Amendment’s history and original understanding are of vital importance to this case.


The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Even just a cursory review of the amendment’s original meaning shows that Edmo’s claims fall far below a constitutional violation as a matter of text and original understanding. At the time of the Eighth Amendment’s ratification, “cruel” meant “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting.” Bucklew v. Precythe, 139 S. Ct. 1112, 1123 (2019) (citing 1 Samuel Johnson, A Dictionary of the English Language (4th ed. 1773); 1 Noah Webster, An American Dictionary of the English Language (1828) (“Disposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness.”)). Even today, “cruel” punishments have been described as “inhumane,” Farmer v. Brennan, 511 U.S. 825, 838 (1994), involving the “unnecessary and wanton infliction of pain,” Whitley v. Albers, 475 U.S. 312, 319 (1986) (emphasis added) (citations omitted), or involving the “superadd[ition] of terror, pain, or disgrace.” Bucklew, 139 S. Ct. at 1124 (emphasis added) (internal quotation marks and citations omitted).

In the 18th Century, a punishment was “unusual” if it ran contrary to longstanding usage or custom, or had long fallen out of use. Bucklew, 139 S. Ct. at 1123 (citing 4 William Blackstone, Commentaries on the Laws of England 370 (1769); Stuart Banner, The Death Penalty: An American History 76 (2002); Baze v. Rees, 553 U.S. 35, 97 (2008) (Thomas, J., concurring); John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814 (2008)). This early understanding comports with the plain meaning of “unusual,” which has changed little from our Nation’s founding. See Harmelin v. Michigan, 501 U.S. 957, 976 (1991) (comparing Webster’s American Dictionary (1828) definition of “unusual” as that which does not “occu[r] in ordinary practice” with Webster’s Second International Dictionary 2807 (1954) as that which is not “in common use.”).

Conversely, customs enjoying a long history of usage were described as “usual” practices. Stinneford, supra, at 1770. James Wilson, a key contributor to the Constitution, stated that “long customs, approved by the consent of those who use them, acquire the qualities of a law.” 2 James Wilson, Collected Works of James Wilson 759 (Kermit L. Hall & Mark David Hall eds., Indianapolis, Liberty Fund 2007); see also Stinneford, supra, at 1769. Likewise, early American courts construing the term “cruel and unusual” (generally, as used in state constitutions) upheld punishments that were not “unusual” in light of common law usage. Stinneford, supra, at 1810–11 (citing Barker v. People, 20 Johns. 457, 459 (N.Y. Sup. Ct. 1823), aff’d, 3 Cow. 686 (N.Y. 1824); Commonwealth v. Wyatt, 27 Va. 694, 701 (Va. Gen. Ct. 1828); People v. Potter, 1 Edm. Sel. Cas. 235, 245 (N.Y. Sup. Ct. 1846)). Thus, “[u]nder the plain meaning of the term, a prison policy cannot be ‘unusual’ if it is widely practiced in prisons across the country.” Gibson v. Collier, 920 F.3d 212, 226 (5th Cir. 2019).

Finally, various views have been proposed with respect to the original meaning of “punishment” in the Eighth Amendment. Some view the word as being inapplicable to conditions of confinement. See, e.g., Farmer, 511 U.S. at 837 (“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’”) (Souter, J.). Some have even suggested  that “punishment” refers only to sentences imposed by a judge or jury. See Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., dissenting); but see Helling v. McKinney, 509 U.S. 25, 40 (1993) (Thomas, J., dissenting) (recognizing that the “evidence is not overwhelming” on this question). Others believe the term was originally understood to encompass more than sentences called for by statute or meted out from the bench or jury box, but it required deliberate intent. See, e.g., Wilson v. Seiter, 501 U.S. 294, 300 (1991) (“The infliction of punishment is a deliberate act intended to chastise or deter. This is what the word means today; it is what it meant in the eighteenth century.”) (Scalia, J.) (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985)); see also Celia Rumann, Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment, 31 Pepp. L. Rev. 661, 675, 677 (2004) (presenting historical evidence that the word punishment was “understood at the time to include torturous interrogation”) (citing 4 William Blackstone,  Commentaries on the Laws of England; 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 447–48).

Impressive -- especially for someone appointed only a couple of months ago.  And congratulations to Professor John Stinneford for the citations (and to Judge Bumatay for recognizing Professor Stinneford as the key academic authority on the issue). 

The dissent goes on to apply Supreme Court precedent with an eye to the clause's original meaning.

(Via Josh Blackman at Volokh Conspiracy, who adds: "Judge Bumatay's opinion serves as a model of how other courts should treat similar issues.")

RELATED:  Professor Blackman also notes:

The NYU Journal of Law & Liberty has published the final version of my [i.e., Blackman's] new article, "Originalism and Stare Decisis in the Lower Courts." I hope this piece is of interest to many lower court judges who are now routinely engaging with the original meaning of the Constitution.


Orin Kerr on Originalism and Torres v. Madrid
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: The Role of Originalism in Torres v. MadridFrom the introduction:

In late March, the Supreme Court will hear argument in a Fourth Amendment case, Torres v. Madrid, on what is a Fourth Amendment "seizure."  The question in Torres is whether a person is "seized" if the government uses physical force to try to stop someone but the force does not succeed in stopping her.  The suspect was driving away from the police, a police officer shot at the car and injured her, but she continued to drive away.  Was the shooting that injured her a Fourth Amendment "seizure"?

In this post, I want to discuss a really interesting question that I see underlying Torres:  To what extent should the Court defer to common law rules in interpreting the Fourth Amendment when the context in which the rules were announced is very different from today?

And from further along:

But what makes Torres a really fascinating case, I think, is the role of originalism in settling the dispute.  So now let's turn to the common law rules that are the focus of a lot of the briefing so far in the case.  The brief of the petitioner, plaintiff Roxanne Torres, relies heavily on the following originalist syllogism:

(1) at the time of the Fourth Amendment's enactment, it was considered an "arrest" for an officer to apply physical force to a person in an unsuccessful effort to detain them;

(2) an arrest is a type of Fourth Amendment seizure; and therefore,

(3) it is a seizure for the government to apply physical force to a person in an unsuccessful effort to detain them.

This is a really interesting syllogism, I think, because it seems right in some ways but questionable in others.

On one hand, it's true that at the time of the Fourth Amendment's enactment, it generally was considered an "arrest" for an officer to apply physical force to a person in an unsuccessful effort to detain them.   On the other hand, there's a twist here.  Although the briefs filed so far don't flag this, my sense is that the common law context in which courts defined arrest in this way is quite different from the context today.

And that differences raises a really fun legal question for the originalist-inclined: When a concept was defined at common law in a specific context that is different from the context in which it arises today, should you apply the common law definition?  Or does the different context suggest a need for a different definition?

Some very interesting history (that I had not heard before) follows.


Joe Biden and the Ninth Amendment
Andrew Hyman

During the February 7 debate among Democratic presidential candidates, former Vice President Joe Biden said this:

We are not going to appoint anyone who did not have a view that unenumerated rights existed in the Constitution. That's not a specific test. That's a generic test. The only reason women have the right to choose is because it's determined that there are unenumerated rights coming from the Ninth Amendment in the Constitution….If you read the Constitution very very narrowly and say there are no unenumerated rights, if it doesn’t say it in the Constitution it doesn’t exist, you cannot have any of the things I care about as a progressive….

Biden is more incorrect than correct here.  Almost no one disputes that there are unenumerated rights in the original unamended Constitution; instead, it is their scope and character that is at issue.  Liberal scholars, Libertarian scholars, and almost everyone else agrees that the Ninth Amendment merely protects those pre-existing unenumerated rights from denial or disparagement that otherwise could have resulted from explicitly enumerating a whole bunch of rights in the first eight amendments.

Of course, the Ninth Amendment says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  This is a rule of construction, which is a big hint that it is not itself a font of any rights.  But it is only a hint.  The Ninth Amendment could have instead said, “Nothing in the entire Constitution shall be construed to deny or disparage unenumerated natural rights,” and then it would have clearly been a font of judicially-enforceable natural rights even though phrased as a rule of construction.  In my view, the thing that most convincingly proves the Ninth Amendment is not a font of rights is that it tells us how to construe the newly enumerated rights, while carefully avoiding any instruction about how to construe the enumerated powers in the old unamended Constitution. 

In any event, almost all scholars accept that the Ninth Amendment merely preserved the status quo.  For example, Professor Lawrence Tribe (a liberal) has written that, "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."  Professor Randy Barnett (a libertarian) has written that, "The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before."  And, the U.S. Supreme Court has said that, "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."  The framers of the Bill of Rights were worried that enumerating certain rights might jeopardize the unenumerated rights that were already enshrined in the original unamended Constitution, thereby expanding federal power, and so the Ninth Amendment was added to guard against this danger. So, Biden is wrong to suggest that the Ninth Amendment did anything more than preserve the status quo. 

The real issue of controversy is what that status quo was.  That is, what were the unenumerated rights that were protected by the original, unamended Constitution?  Answering this question has virtually nothing to do with the wording of the Amendment ratified in 1791, and instead depends upon the wording of the original Constitution ratified in 1788.  There are two main schools of thought: a Madisonian school and a libertarian school; the former is correct in my view, whereas the latter is Bidenesque and misguided.  So let’s briefly consider what these two schools say. 

The Madisonian school follows James Madison's explanation in 1788: “the rights in question are reserved by the manner in which the federal powers are granted.”  For example, the unamended Constitution gave Congress virtually no power to prevent people in the individual states from wearing hats, or burying the dead, and therefore these were residual unenumerated rights protected by the unamended Constitution from federal interference in the states.

In contrast, libertarian scholars say that the unamended Constitution includes unenumerated natural rights that carve out exceptions from the enumerated powers.  However, the text of the unamended Constitution rebuts that libertarian view.  Consider, for example, the clause in the unamended Constitution giving Congress “power…to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may…become the Seat of the Government of the United States.” Libertarian scholars say that courts may nevertheless strike down federal laws in the District of Columbia whenever the courts decide that their judicial conscience is fundamentally better than the joint conscience of Congress and the D.C. City Council (to which Congress has delegated considerable power).  That libertarian interpretation is misguided, because the framers were careful not to demand that laws in the District of Columbia must pass muster as to their necessity and propriety.  There is a clause in the Constitution empowering Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” but, as Chief Justice John Marshall later explained, that clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted."  It would be bizarre if the framers in Philadelphia gave virtually complete power to Congress over the District, and carefully exempted that power from a requirement of necessity and propriety, all the while wanting to impose that very same requirement by vague implication.

The opponents of the Madisonian version of the Ninth Amendment have some other strange ideas too.  They claim that this Amendment protects only rights that people “retain” by natural law.  But that would imperil other federal constitutional rights that were protected by the original unamended Constitution, such as the right of defendants to stop federal prosecution of misbehavior that is outside federal jurisdiction (e.g. the right to stop federal prosecution of littering, stealing, or committing arson within the borders of a state).  The federal government would be free to argue that the first eight amendments do not discuss any right to litter, steal, or burn down houses and therefore Congress can criminalize such offenses throughout the United States (not just in places like the District of Columbia).

I hasten to add that none of the unenumerated rights in the original unamended Constitution is applicable in places like the District of Columbia, where the federal government has plenary power.  Therefore, they are not rights of U.S. citizenship, and are not applicable against the states via the Fourteenth Amendment.  After all, it would be absurd to apply those unenumerated rights against the states, because then neither the federal government nor the states could prosecute things like littering, stealing, and arson.

I hope we stick with the original Madisonian meaning of the Ninth Amendment, or at least change it by a legitimate amendment process.  If Biden and the other Democratic nominees are going to impose a litmus test on their judicial nominees, they need to study up on what the Constitution really means.  Better yet, just pick nominees of good character who are smart, wise, and committed to applying the law as written, regardless of what they "care about as a progressive."


Laurence Claus: Authority and Meaning
Michael Ramsey

Laurence Claus (University of San Diego School of Law) has posted Authority and Meaning (Connecticut Law Review, forthcoming) (17 pages) on SSRN.  Here is the abstract:

This conference contribution celebrates Richard Kay’s contention that a sound theory of legal meaning depends on a sound theory of legal status. Contrary to Kay, I conclude that identifying law’s true source reveals that we should seek law’s meaning not primarily in lawgivers’ intentions, but in public understanding.

If the rule of recognition at the core of a legal system emerges through shared expectations, if its essence is social custom, then the whole legal system grows forth from shared expectations, from social custom. Our following particular persons pedigreed by that system as lawgivers, including constitutional lawgivers, is not a departure from custom, but an extension of custom, morally supported by whatever morally supports following custom. Customs of following leaders are custom-based fast tracks to many more customs. Our underlying reason for following law “because it is law” is the thing that makes it law, namely its success at self-fulfillingly expressing what people in our community are likely to do and to expect, including how various among them are likely to respond to how we act. That weighty (though not preemptive) and law-specific reason for following law is not only about eliciting approval and avoiding punishment, but more deeply about our need to have the shared expectations that law alone can provide. Legal systems are multifaceted prediction systems that we have strong moral reason to preserve, because we live inside them. H.L.A. Hart rightly rejected the notion that statements of obligation are just predictions, but a prediction system can produce moral obligation to conform if there is good in having that system.

Attempts to salvage an idea of authority as source of law may frame it as a source of merely presumptive, defeasible duties to obey. Such attempts might add value if they could demarcate a zone in which lawgivers and law receivers can both know ex ante that lawgivers will be morally justified in issuing laws and law receivers will be morally required to follow laws. But there is no such zone. Each human action – of lawgiving and of law following – is a separate, individualized moment of all-things-considered moral judgment. From the lawgiver’s perspective, doing particular acts that are likely to succeed in lawgiving may or may not be the right thing to do whether or not the lawgiver came to power in a good way. And for the rest of us, following law on particular occasions may or may not be the right thing to do whether or not the lawgiver was morally justified in doing the acts that made that law and whether or not the lawgiver came to power in a good way. What’s the point of an “authority” that is not coextensive with the claimant’s power, and not clear ex ante about its own extent, and not in itself the answer to when we should follow? The truth to which defeasible duty talk points is simply that when we live inside legal systems, we have a strong moral reason to maintain them, and that reason points us to following our law unless we have stronger moral reasons to do differently.

Hart’s contrast between law and the demands of a bank-robbing gunman is sharpened by the ad hoc, arbitrary character of such a gunman’s actions. Law’s distinctive contribution to our lives is to make our relations with one another less ad hoc, more predictable, and so let us live together in large groups. But there is no necessary contrast at all between the morality of individual governing actions and the morality of bank robbing. Often enough, so-called “authoritarian” leaders are gunmen; criminal gangs do run whole nations. Nonetheless, those nations have law; those gangs are government. Our ever present reason to care about law is not that we owe something to lawgivers, but that we need law’s help to live together. We read law not to understand lawgivers. We read law to understand one another, to learn how life is likely to be in our community. And that fact tells us where to look for law’s meaning. The understanding we need when we read law is primarily not what lawgivers intended, but what our community understands its law to be. We do not need our lawgivers even to intend to be lawgivers. What we need is a vehicle for shared understanding across our community and over time about how our life together is going to be. And for that, we need law to have a public meaning.


Michael Morley: Partisan Gerrymandering and State Constitutions
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted Partisan Gerrymandering and State Constitutions (72 pages) on SSRN.  Here is the abstract: 

Since the U.S. Supreme Court held in Rucho v. Common Cause that partisan gerrymandering claims are non-justiciable under the U.S. Constitution, reformers have shifted their focus to pursuing such claims under state constitutions. In some cases, longstanding state constitutional provisions have been re-interpreted to prohibit partisan gerrymandering. In others, state constitutions have been expressly amended to either forbid partisan gerrymandering or transfer authority over drawing congressional and legislative district lines from the state legislature to independent redistricting commissions.

The U.S. Constitution does not confer authority to regulate federal elections on states as entities, however, but rather specifically on the “Legislature” of each state. The “independent state legislature doctrine” teaches that a state constitution is legally incapable of imposing substantive restrictions on the authority over federal elections that the U.S. Constitution confers directly and specifically on a state’s legislature. Over the past 130 years, the U.S. Supreme Court has repeatedly adopted conflicting positions on the doctrine without recognizing its deep historical roots or normative justifications.

The independent state legislature doctrine reflects the prevailing understanding of states, Congress, and other actors throughout the Nineteenth Century, and was consistently applied during that period across a broad range of circumstances. It protects important structural considerations and is consistent with the political theory underlying the U.S. Constitution’s election-related provisions. Properly understood, the independent state legislature doctrine is a powerful, largely overlooked obstacle to the use of state constitutions to combat partisan gerrymandering.


Orin Kerr: Decryption Originalism
Michael Ramsey

Orin S. Kerr (University of California, Berkeley School of Law) has posted Decryption Originalism: The Lessons of Burr (56 pages) on SSRN.  Here is the abstract:

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr’s private secretary if he knew the cipher to an encrypted letter Burr had sent to a co-conspirator. Burr’s secretary pled the Fifth, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment’s ratification. The Article presents that reconstruction, and it concludes by applying Burr’s lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.

(Via Volokh Conspiracy).

Professor Kerr is a major scholar in the field but not predominantly an originalist scholar, so this turn to orignalism is notable.


Robert Natelson: Is the Constitution’s Convention for Proposing Amendments a 'Mystery'?
Michael Ramsey

Robert G. Natelson (Independence & Montana Policy Institutes) has posted Is the Constitution’s Convention for Proposing Amendments a 'Mystery'? Overlooked Evidence in the Narrative of Uncertainty (57 pages) on SSRN.  Here is the abstract:

The Constitution provides that amendments may be proposed for ratification by Congress or, on demand by two thirds of state legislatures, by a “Convention for proposing Amendments.” The Constitution’s framers designed the convention mechanism as a way to circumvent a recalcitrant Congress.

A convention for proposing amendments has never been held. One reason is that many legal commentators, including some at the pinnacle of academia, contend convention composition and protocols are utterly unknown and/or that Congress should dictate them. Convention opponents have disseminated those contentions widely, thereby discouraging state legislatures from applying for a convention.

This Article shows that this narrative of uncertainty has little merit. The commentators have overlooked extensive Founding-Era evidence defining what an amendments convention is, how it is composed, and what its protocols are. They also have overlooked a Supreme Court case and other nineteenth and early twentieth century sources confirming the Founding-Era evidence.

The Article examines the historical record, describes the established protocols, and explains how the founders’ model fits into the overall constitutional structure.

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


Seth Barrett Tillman on the 1792 Madison-to-Pendleton Letter
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted The 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? (23 pages) on SSRN.  Here is the abstract:

In a 1995 Stanford Law Review article, Professors Akhil Reed and Vikram David Amar argued that the U.S. Constitution’s Succession Clause and its “officer”-language does not permit legislative officer succession. They concluded that the nation’s first succession act—passed by the Second Congress—which put the Senate’s and House’s presiding officers in the line of presidential succession—was unconstitutional. The modern presidential succession statute also puts legislative officers in the line of succession, and so the Amars concluded that it too was unconstitutional. In reaching their conclusion, they opined on the Succession Clause’s history, text, purpose, etc. The largest part of their argument was of a more intuitive variety: i.e., argument based on so-called “constitutional structural.”

The Amars supported their intuition, in substantial part, by claiming James Madison shared their intuition. Or, to put it more precisely, they renewed an argument which, according to the Amars, was first put forward by James Madison in a letter to Edmund Pendleton (hereinafter the “Madison-to-Pendleton Letter”), and then they claimed Madison as high authority for the position they put forward. My object in this short paper is limited: it is to show why the Amars were wrong to rely on James Madison. The argument they put forward is their intuition, and not Madison’s. The Amars’ argument may be right on the merits (i.e., legislative officer is unconstitutional ) and it may be wrong (i.e., the first succession act and its modern successor are both constitutional )—but the Amars’ claiming the mantle of Madison in support of their position is and always was largely historical error.

The intellectual stakes here are not only reasonably high, but also peculiarly timely. The meaning of the Constitution’s Succession Clause and its “officer”-language is always two heartbeats away from contemporary relevance. That issue is always of at least some concern, even absent hype and the more idiosyncratic concerns of cloistered academics. Today, the presidential succession issue is relevant not merely because we are two heartbeats away, but also because we are one impeachment and one heartbeat away from applying the 1947 Presidential Succession Act—which puts the two presiding legislative officers, i.e., the Speaker of the House and the Senate President Pro Tempore (“SPPT”), in the line of succession. Finally, the Amars’ article and the Madison-to-Pendleton Letter are the key (modern) article and the key (premodern) historical evidence discussed in the academic debate over the Constitution’s “office”-language. That debate no longer resides exclusively in the halls of the academy—it has moved into the federal courts which are now litigating civil claims brought against the President under the Foreign Emoluments Clause. That latter clause applies to “Person[s] holding any Office of Profit or Trust under [the United States].” How we resolve or should resolve the issue of whether the President holds an office of profit or trust under the United States will depend, in part, on the rightness (or wrongness) of the Amars’ analysis, the meaning of the Succession Clause and its “officer”-language, and the meaning of the Madison-to-Pendleton Letter.

Finally, I add that over ten years ago, I hypothesized that: “There is some reason to believe that [in the Madison-to-Pendleton Letter] all Madison was doing [was] reporting prior debate. Viz., each of ‘Madison’s’ four arguments in his letter to Pendleton had already been expressed on the floor of the House by speakers other than Madison in prior debate.” Today, I intend to make that claim good.


William Baude: Precedent and Discretion
Michael Ramsey

William Baude (University of Chicago Law School) has posted Precedent and Discretion (Supreme Court Review, forthcoming) (22 pages) on SSRN.  Here is the abstract: 

Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases.

This focus is misguided. Rather than worrying about which cases will be cast aside, we should pay more attention to those precedents that are left standing in place. Many of the Court’s questionable precedents nonetheless go unquestioned. The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little.
At last, it seems such theories may be coming. Last term, Justice Thomas (in Gamble v United States) and Justice Alito (in Gundy v United States) each attempted to explain some of their decisions to reject and adhere to precedent. These explanations deserve serious scholarly scrutiny, which they have not yet received.

Unfortunately, these interventions do not solve, and indeed they exacerbate, the problem. What they propose is neither a regime of adherence to precedent, nor a regime without precedent, but rather a regime in which individual Justices have substantial discretion whether to adhere to precedent or not. This turns precedent from a tool to constrain discretion into a tool to expand discretion, and ultimately into a tool to evade more fundamental legal principles.

Part I describes the state of stare decisis in the Court today. Part II discusses Justice Thomas’s theory that precedent must be overruled when it is “demonstrably erroneous.” Part III describes Justice Alito’s theory that precedents ought not be overruled on the basis of “halfway originalism.” Part IV explains why discretionary precedent — of which these theories are examples — are worse than no precedent at all.

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


Travis Crum on Originalism and the Fifteenth Amendment
Michael Ramsey

At the Election Law Blog, Travis Crum (Chicago), guest-blogging: Originalism, Colorblindness, and the Fifteenth Amendment.  From the introduction:

Any project to revive a constitutional provision must confront originalism’s hold on today’s Court. Originalist arguments play a central role in nearly every constitutional case. And today, Justice Thomas is the Court’s most prominent originalist and a leading voice in election law cases.


But Thomas has been inconsistent in how he approaches election law cases. Thomas is an ardent defender of Shaw’s cause of action against racial gerrymandering. As he once commented, there can be no “exempting intentional race-based redistricting from our well-established Fourteenth Amendment standard” of applying strict scrutiny to race-based governmental decision-making.

Shaw is an awkward doctrine for a staunch originalist. Shaw is premised on the Equal Protection Clause, even though the Fourteenth Amendment was originally understood to exclude protections for voting rights. After all, that’s why we have a Fifteenth Amendment. So on the one hand, Thomas believes that the Fourteenth Amendment cannot be invoked to govern malapportionment claims because it is silent on such questions and judges are ill-equipped to make such an inherently political choice. But on the other hand, Thomas has mechanically applied his colorblind vision of the Fourteenth Amendment to what should be considered Fifteenth Amendment cases under his originalist framework.

And in conclusion:

By taking the Fifteenth Amendment seriously as an independent constitutional provision, the inconsistent application of originalism becomes apparent and the colorblind constitution is revealed to be a normative preference masquerading as a historical norm. As my post yesterday demonstrated, the Reconstruction Framers distinguished between civil and political rights, but originalists on the Court have not offered any historical explanation for why a doctrine developed to govern civil rights should apply to political rights. And as my post tomorrow will argue, the colorblind approach misreads the history of the Fifteenth Amendment’s passage and ratification.

This is part of a 5-part series on reviving the Fifteenth Amendment:

The Fifteenth Amendment at 150

The Voting Rights Act of 1869

Originalism, Colorblindness, and the Fifteenth Amendment

Racially Polarized Voting and the Fifteenth Amendment

The Fifteenth Amendment and DNC v. Hobbs



Rob Natelson Changes His Mind on Impeachment
Michael Ramsey

In The Epoch Times, Rob Natelson: Dershowitz Was Correct: Impeachment Does Require Criminal-Type Conduct.  From the introduction: 

When professor Alan Dershowitz claimed before the Senate that the Constitution allowed impeachment only for crimes and crime-like activity, I was skeptical.

As he admitted, most constitutional scholars think the bar is lower. I was among them: In both scholarly and popular articles, I’ve argued that the phrase “high misdemeanors” means what the Founders called breach of trust and we call breach of fiduciary duty.

Yet I knew Dershowitz was correct that the framers wanted the grounds for impeachment in America to be narrower than those sometimes employed in England. So I decided to fact-check his statements.

When a constitutional word or phrase seems unclear, consulting 18th century law books often is the best way clarify it. After all, the Constitution is a legal document, the supreme law of the land. Most of its drafters and expounders were prominent lawyers or laymen who (like George Mason, who suggested the “high Crimes and misdemeanors” standard) were legally sophisticated. Surprisingly, however, law professors and other constitutional writers tend to disregard 18th century legal materials, aside from the commentaries of William Blackstone.

I already was familiar with what the Founders said explicitly about impeachment. As part of my fact check, therefore, I examined a wide range of 18th legal writings: court cases, books on criminal law, voluminous legal digests, and statutes.

Conclusion: Dershowitz is essentially correct and I (and most other writers) have been wrong.

The legal materials show that the constitutional phrase “Treason, Bribery, and other high Crimes and Misdemeanors” generally does require serious criminal conduct. ...


John Vlahoplus on Ratification of the Equal Rights Amendment
Michael Ramsey

John Vlahoplus (independent) has posted Ratification of the Equal Rights Amendment: Lessons From Special Elections to the House of Representatives in 1837 (95 Indiana Law Journal Supplement (forthcoming 2020)) (10 pages) on SSRN.  Here is the abstract:

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in its representation pursuant to Article I, Section 2 of the federal constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election.

This Article suggests that the similar text of Article V gives Congress only the power to propose amendments, without any limitation, and states the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose on ratification of the Equal Rights Amendment is unconstitutional surplusage, and state rescissions are ineffective. Virginia’s ratification on January 15, 2020 pushed the amendment past the three quarters threshold, making it a valid part of the federal constitution. The Article also considers lessons from the subsequent 1837 general elections and suggests that the Supreme Court--rather than Congress--should and likely will ultimately adjudicate the validity of the Amendment’s ratification.

ANDREW HYMAN ADDS: The Office of Legal Counsel at DOJ issued this opinion on the ERA Amendment.  


Suja Thomas on Total Incorporation
Michael Ramsey

Suja A. Thomas (University of Illinois College of Law) has posted What Timbs Does Not Say (George Washington Law Review On the Docket) (3 pages) on SSRN.  Here is the abstract:

In Timbs v. Indiana, the United States Supreme Court decided that the Excessive Fines Clause of the Eighth Amendment applied to the states. In conjunction with this discussion, it did not mention the few rights that remain unincorporated and explain why this so. Practically, after Timbs, only jury rights--unanimity, the grand jury right, and the civil jury right--do not apply to the states. Given their history and importance, these rights should be incorporated.

Agreed.  Plus it would make teaching incorporation a lot easier.


Judge Amul Thapar & Joe Masterman on Lawrence Lessig's Fidelity & Constraint
Michael Ramsey

Recently published, in the Yale Law Journal, Judge Amul Thapar (U.S. Court of Appeals, Sixth Circuit) & Joe Masterman: Fidelity and Construction  (129 Yale L.J. 774 (2020)) (reviewing Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution).  Here is the abstract:

Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” Lessig observes that judging is defined by two principles: fidelity to meaning and fidelity to role. To determine meaning, he argues, judges should engage in a two-step process: first determine the original meaning of the provision at issue, then translate that meaning into the modern context. But he also suggests that meaning should sometimes give way to other considerations—that balancing fidelity to meaning and role might sometimes require judges to compromise one to further the other.

We agree with Lessig about the basic nature of these two fidelities, but not about their relationship. Fidelity to meaning and fidelity to role are not in tension—they are complementary. Fidelity to role should never override fidelity to meaning. But it can inform what it means to be faithful to meaning. An originalist understanding of the judicial role may itself show how a judge should construe an underdeterminate constitutional provision.

This Review explores what the original understanding of the judicial role can tell us about how to construe such provisions. Specifically, it considers whether, as an originalist matter, judges should construe underdeterminate provisions against government action (that is, apply a presumption of liberty) or in favor of government action (that is, apply a presumption of democracy). After reviewing the debates between the Federalists and Anti-Federalists, as well as debates at the Constitutional Convention, we tentatively propose that judges should apply a presumption of liberty in cases about federal power but a presumption of democracy in cases about state power. Our primary hope is to suggest a direction for further historical analysis.

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



Mark David Hall on Espinoza v. Montana Department of Revenue
Michael Ramsey

At Law & Liberty, Mark David Hall (George Fox University, Politics): Can Blaine’s Descendants Block School Choice?  From the introduction:

Last Wednesday, the United States Supreme Court heard oral arguments in Espinoza v. Montana Department of Revenue. The case has many moving parts, but at its core, it requires justices to determine if a state may discriminate on the basis of religion. The litigation centers on Montana’s Blaine Amendment—a constitutional amendment which forbids state funds from going to religious organizations; but this is a Blaine Amendment with an interesting twist.

Blaine Amendments: Born in Anti-Catholic Bigotry

In his wonderful book Separation of Church and State, Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. As I have noted in this space, in the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.

At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments, and Congress sometimes required states admitted to the Union after 1875 to include Blaine Amendments in their constitutions. Such was the case with Montana.


There are excellent reasons to conclude that anti-Catholic animus was a driving force behind this amendment. But here is the twist: in 1972, Montana held a convention that revised its constitution, and the state’s voters approved it in the same year. In doing so, they reauthorized the amendment, adding only a line stipulating that it “shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.” There is little evidence that these convention delegates or voters were motivated by anti-Catholic animus.

I think Espinoza is a difficult case for originalists. But I also think speculation about the motives of the ratifiers of the original Montana constitutional amendment or its 1972 reenactment is unproductive and beside the point.  The question should be whether the Montana constitution actually "prohibit[s] the free exercise [of religion]." That does not turn on the motive of the provision; it turns on the effect.  If the provision prohibits the free exercise of religion, it is unconstitutional irrespective of its motive.  Similarly, if it does not prohibit the free exercise of religion, it is constitutional irrespective of its motive.


State Criminal Laws Applied Against Federal Officials From Day One
Andrew Hyman

As Professor Alan Dershowitz showed during President Trump’s impeachment trial, it is a tough question whether impeachment articles can constitutionally allege  only behavior that was never covered by any criminal law statutes.  I’m not really 100% sure of the answer, and do not claim expertise about it.   But I would like to criticize one particular argument that is all over the place right now: that the framers could not have meant to refer to pre-existing criminal law statutes regarding bribery and the like, because such federal statutes did not exist yet when the Constitution was written and ratified.  To me, that seems like a poor argument, because federal officials were subject to state criminal law from the day the Constitution took effect.

George Washington took his first presidential oath of office on April 30, 1789 in New York.  That’s where the federal government was headquartered until its seat moved to Philadelphia in 1790.  According to the federal Residence Act, Philadelphia served as the capital between 1790 and 1800 while Washington, D.C., was being prepared.  The framers of the Constitution almost certainly foresaw that the federal government would operate within a state, before it could move to a permanent seat of government under its exclusive control, and of course that is what happened.

Maybe the most famous example is a Pennsylvania law (the Gradual Abolition Act enacted in 1780), providing that any slave who entered Pennsylvania with an owner and lived there for more than six months would become free automatically. This law did not exempt President Washington and his slaves, so every six months Washington arranged for each of his slaves to go out of the state, essentially resetting the clock.  Washington obviously would not have done that if he thought he was above Pennsylvania law.

A few days ago, former federal prosecutor Jill Wine-Banks said on MSNBC what many other pundits have said this month: “Other high crimes and misdemeanors are exactly that. It isn’t under the federal statutes that they were talking about. Bribery isn’t under the federal statute because there was no federal bribery crime when the Constitution was passed. It was whatever people thought it was” (emphasis added). More likely, it was whatever state statutes in the 1780s universally said it was.  State laws were binding on federal officials when the Constitution took effect, at least to the extent that federal law did not contradict them.

I am fairly sure that impeachment articles may allege behavior that is not (and never was) barred by any statute, as Jill Wine-Banks said.  But I am also leaning toward the idea that at least one of those allegations must be punishable by criminal law.  After all, the Constitution says: “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”  An impeachment that involves absolutely no potential criminal law liability whatsoever is unusual, and possibly unconstitutional.

UPDATE: Michael Ramsey previously wrote on this blog: “Some of the more likely presidential violations, such as declaring war without Congress' approval or spending money without an appropriation, do not seem to have any obvious checks aside from impeachment, and yet aren't likely to be criminalized.”  But haven’t they been criminalized?  Unauthorized warfare is murder, and unauthorized spending is theft.

Ilya Somin & Shelley Ross Saxer: Knick v. Township of Scott and the Doctrine of Precedent
Michael Ramsey

Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) and Shelley Ross Saxer (Pepperdine University School of Law) have posted Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent (Fordham Urban Law Journal, Symposium on Knick v. Township of Scott, forthcoming) (60 pages).  Here is the abstract:

The Supreme Court’s decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court.

Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick’s overruling of Williamson County was amply justified under the Supreme Court’s established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist.

Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, and why the Knick Court was justified in overruling it on the merits — at least aside from the doctrine of stare decisis. The purpose of this Article is not to defend Knick’s rejection of Williamson County against those who believe the latter was correctly decided. For present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless refused to overrule it because of the doctrine of stare decisis. But the reasons why Williamson County was wrong are relevant to assessing the Knick Court’s decision to reverse it rather than keeping it in place out of deference to precedent.

Part II shows that Knick’s overruling of Williamson County was amply justified based on the Supreme Court’s existing criteria for overruling constitutional decisions, which may be called its “precedent on overruling precedent.” It also addresses Justice Elena Kagan’s claim, in her Knick dissent, that the majority’s conclusion requires reversing numerous cases that long predate Knick. Part III explains why the overruling of Williamson County was justified based on leading current originalist theories of precedent advanced by prominent legal scholars, and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. In Part IV, we assess the overruling of Williamson County from the standpoint of prominent modern “living constitutionalist” theories of precedent. Here too, it turns out that overruling was well-founded.

Other recent decisions reversing established precedent may be more troubling. But Knick was amply justified.


Textualism and Title VII (Again)
John Vlahoplus

Consider a rule forbidding opposite sex massages in a massage parlor because they involve too great an intimacy between the sexes.  An owner hangs two separate duty rosters.  The first lists all of the female employees and is titled “Available to massage female clients.”  The second lists all of the male employees and is titled “Available to massage male clients.”  One interpretation is that the rule is facially neutral.  It equally forbids males to massage females and females to massage males.  As the employer in Zarda argues:  “Neither sex is favored over the other.” 

A masseuse objects that the rule discriminates against her because of her sex.  If she were male, she could continue to massage male clients.  The owner responds patiently:  “You are mistaken.  The rule does not refer to your sex.  It refers to ‘opposite sex.’  Your objection changes two factors:  your sex from female to male, and the massage from opposite sex to same sex.  The very aim of the rule is to prevent too great an intimacy between the sexes.  To isolate your sex we must keep the massage opposite sex.  The proper comparison is to a male massaging a female, which the rule equally forbids.  See?  The rule doesn’t discriminate at all.”

A textualist might object that the text of Title VII does not forbid favoring one gender over the other or exempt discrimination based on good intentions.  It forbids the employer to “classify his employees … in any way which would deprive or tend to deprive any individual of employment opportunities … because of such individual’s … sex” unless sex is a bona fide occupational qualification for the position.  The textualist might ask:  “What do your rosters do if not classify your employees by sex?  What does that classification do if not deprive each individual employee of the opportunity to massage some of the parlor’s clients?”  The textualist might reason that the “equal” right to massage only members of your own sex explicitly discriminates against each employee because of such employee’s sex.

If the second interpretation is correct, a “no same sex massage” rule would also discriminate against each employee because of the employee’s sex.  So would a “no same sex orientation” rule, which necessarily classifies employees by their sex: only men can love women, and only women can love men. 

Which interpretation of Title VII is correct?  The first, which is based on gender favoritism?  Or the second, which is based on individual protection?  Textualism and Title VII (here) (forthcoming in the Wake Forest Law Review Online), considers the question in the context of the Supreme Court’s pending LGBTQ discrimination cases.  It provides additional textual support for the second interpretation.  It considers early “same gender” and “opposite sex” rules challenged under Title VII to illustrate the discrimination inherent in them.  Finally, it cites previously overlooked briefing and oral argument in Dothard v. Rawlinson to show that all eight of the Supreme Court Justices who reached the issue held that the second interpretation is correct.  It concludes that the Court should rule for the employees and leave the balancing of competing individual and governmental interests to congressional legislation or further development by lower courts.

Justice Gorsuch on "Nationwide" Injunctions
Michael Ramsey

Concurring in the issuance of a stay in Department of Homeland Security v. New York, Justice Gorsuch (joined by Justice Thomas) had bad things to say about so-called nationwide injunctions: 

On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws. Approximately 10 months and 266,000 comments later, the agency issued a final rule. Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it applies to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.


... The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.

Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.

Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III. See Trump v. Hawaii, 585 U. S. ___, ___ (2018) (THOMAS, J., concurring); Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 471–472 (2017) (Bray); Morley, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487, 523–527 (2016).

It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions. Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal. Universal injunctions have little basis in traditional equitable practice. Bray 425–427. Their use has proliferated only in very recent years. See Trump, 585 U. S., at ___–___ (THOMAS, J., concurring) (slip op., at 8–9). And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions. Bray 461–462. ...


John Yoo on Impeachment and the Founders
Michael Ramsey

At National Review, John Yoo: What the Founders Told Us about ‘High Crimes and Misdemeanors’.  From the introduction:

The first week of the impeachment trial of Donald Trump focused on whether the Senate would call witnesses such as former national-security adviser John Bolton and Joe and Hunter Biden. But while they would attract lots of commentary and speculation, any new witnesses would not materially affect the final verdict. The critical constitutional question, which both parties have so far failed to persuasively answer, is this: Did the president commit a “high crime or misdemeanor” that justifies removal from office? And both the House accusers and the Trump defense team have sought to answer that question, upon which all depends, by reversing the polarity of their traditional constitutional positions. ...

Today’s Democrats have probably never signed a document so replete with quotations from The Federalist Papers and the Constitutional Convention as the House Judiciary Committee’s December 13, 2019, impeachment report. Democrats suddenly favor the Founding because it lends some support to their claim that the standard of “Treason, Bribery, and other high Crimes and Misdemeanors” for presidential impeachment includes conduct that falls short of federal crimes. They are surely correct about the broad scope of impeachable offenses. Impeachment exists for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” Alexander Hamilton explained in Federalist No. 65. “They are of a nature which may with particular propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

In particular, the House impeachment report argues that the “high Crimes and Misdemeanors” standard encompasses three types of offenses that are not in themselves criminal: “abuse of power,” “betrayal of the national interest,” and “corruption of office or elections.” ...

And from later on:

Trump’s defense team, meanwhile, has erred even more egregiously in the opposite direction. While the White House has broken all records in appointing originalist judges, its defense team has adopted a non-originalist approach that could have made Justice William Brennan chuckle. “By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law,’” proclaims President Trump’s January 20, 2020, Trial Memorandum, without producing any statement from a leading Founder, during the drafting or ratification of the Constitution, that limits “high Crimes and Misdemeanors” to criminal acts. ...

Instead, the president’s team makes arguments on the meaning of “high Crimes and Misdemeanors” that resemble the methods used by the justices who have steadily expanded individual rights in ways that offend conservatives. For example, Trump’s brief relies heavily on our present-day understandings of the relationship between the president and Congress, and on the impeachments of Andrew Johnson and Bill Clinton. Any good originalist would concede, however, that precedent from 80 or 210 years after the Founding cannot reflect the original meaning of the constitutional text, and that a defense of Trump that relies solely on impeachment’s potential to weaken the presidency cannot overcome the explanations of the meaning of “high Crimes and Misdemeanors” offered by the Founders themselves during the battle over the Constitution’s ratification.

And on the merits:

... An initial close reading of the Constitution’s text suggests that “other high Crimes and Misdemeanors” must have a similar nature to “Treason” and “Bribery,” since they are included in the same list and, crucially, linked with an “other.” If the clause had read “Treason, Bribery, and high Crimes and Misdemeanors,” without the “other,” the scope of offenses covered by impeachment might be much broader. Other parts of the Constitution reinforce the idea that the phrase “high Crimes and Misdemeanors” limits impeachment to serious offenses. Article I immunizes members of Congress from arrest when Congress is in session except for “Treason, Felony, and Breach of the Peace”; it seems that felonies or breaches of the peace do not amount, alone, to “high” crimes. Article IV requires states to extradite fugitives charged with “Treason, Felony, or other Crime.” This approach does not answer the question of what treason, bribery, and other high crimes and misdemeanors should have in common, only that we should read the catch-all as including only offenses of a similar gravity.

Where the Framers discussed high crimes and misdemeanors, they cited examples of abuse of power that harm the nation at a level as serious as Treason and Bribery. At the Constitutional Convention, Madison discussed cases that would require presidential removal. “Some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate,” he declared. He did not believe that elections held every four years would provide a strong enough safeguard. “[The president] might lose his capacity after his appointment,” Madison worried. Or worse yet, “he might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Edmund Randolph supported his fellow Virginian because “the Executive will have great opportunities of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.” Without impeachment, Randolph predicted, the people would have to resort to “tumults & insurrections” to turn out such a president.

(Thanks to Andrew Hyman for the pointer.)