Lawrence Solum: Themes from Fallon on Constitutional Theory
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Themes from Fallon on Constitutional Theory (53 pages) on SSRN.  Here is the abstract:

Professor Richard Fallon’s Law and Legitimacy in the Supreme Court is a deep, original, and important contribution to constitutional theory. Fallon’s book is extraordinary, ranging across fundamental issues in normative constitutional theory and connecting to important ideas from political philosophy, metaethics, and the philosophy of language. This Essay explores three themes from Fallon and reflects on the significance of Fallon’s work for contemporary constitutional theory.

The first theme concerns the idea of constraint by the constitutional text: Fallon develops a challenge to the claim that the legitimacy of judicial review requires that judges be constrained by the constitutional text. Part I of this Essay situates Fallon’s challenge in the context of contemporary originalist constitutional theory. Discussion of the first theme aims to reveal difficulties with Fallon’s claim that the existence of multiple kinds of meaning undermines certain forms of constitutional originalism.

The second theme derives from Fallon’s exploration of the foundational role of the idea of reflective equilibrium in normative constitutional theory. Part II of this Essay suggests that the role of constitutional theory requires that reflective equilibrium be reconceptualized in terms of intersubjective agreement among citizens who affirm a plurality of moral, religious, and ideological perspectives: in other words, it is a we and not an I that should aim for a relationship of consistency and mutual support between our considered constitutional judgments. Exploration of the second theme aims to reveal a difficulty with a first-person singular approach to reflective equilibrium.
The third theme is prompted by Fallon’s exploration of the idea of legitimacy. Part III of this Essay suggests that constitutional legitimacy has a complex structure, including both multiple dimensions and functions. Investigation of the third theme aims to uncover the ways in which constitutional legitimacy constrains the options available to normative constitutional theory.

The three themes are woven together in the final Part of the Essay, which reflects the implications of Fallon’s work for the great debate between originalism and living constitutionalism. Part IV of the Essay suggests the ways in which originalists might respond to Fallon’s important, deep, and learned challenges to the case for constitutional originalism.

And here is a link to Professor Fallon's book (Belknap Press 2018).



Terry Stop Originalism
Michael Ramsey

From the SDFL Blog (via How Appealing): Big en banc 4th Amendment opinion comes down 7-5.   Originalist Judge William Pryor writing for the majority upholds police seizure of a bullet during a Terry stop without much discussion of originalism.  The dissent objects on originalist grounds: 

[Judge] Jordan dissents and says, what about originalism? Originalism would not have allowed this to go forward and all of those in the majority who are generally champions of originalism are awfully quiet now:

Relying on Justice Scalia’s originalist position, Mr. Johnson argues that we should construe Terry narrowly, and not extend it to allow the seizure and removal of items that are neither weapons nor contraband. See Mr. Johnson’s En Banc Br. at 18-23. But the majority barely acknowledges this argument, and declines to address its merits. According to the majority, we are bound by Terry, and must therefore ignore the original understanding of the Fourth Amendment.
The majority is correct that Terry constitutes binding precedent, and that no one on this court can wish it away. But accepting Terry does not require extending its reach on an issue of first impression. Terry permitted pat-downs for weapons, and only weapons. See Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (“Nothing in Terry can be understood to allow . . . any search whatever for anything but weapons.”). By allowing officers to seize a stand-alone bullet from an unarmed suspect who is in handcuffs and being held at gunpoint by several officers, the majority expands Terry beyond its “narrow scope.” Dunaway v. New York, 442 U.S. 200, 210 (1979).

The case is United States v. Johnson.  Judge Jordan's dissent starts this way:

This appeal presents an interesting case study for originalism, a set of related theories which (broadly speaking) call for constitutional provisions to be interpreted in accord with their understanding and meaning at the time of enactment or in accord with the intent of their framers. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 813-38 (2010) (Thomas, J., concurring in part and concurring in the judgment); Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105-08 (2001); Edwin Meese, III, Speech Before the American Bar Association on July 9, 1985, in Steven Calabresi, Originalism: A Quarter-Century of Debate 53-54 (2007); Antonin Scalia, A Matter of Interpretation 38 (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law 144 (1990); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 363-73 (1977). I write separately to discuss the majority’s failure to address, in any meaningful way, Mr. Johnson’s originalist argument for limiting the reach of Terry v. Ohio, 392 U.S. 1 (1968).

As to Scalia and Terry, the dissent has this to say (and I think it is correct):

A quarter century ago, Justice Scalia concluded that the “frisk” aspect of Terry, 392 U.S. at 25-27—which allows the police to conduct pat-downs for weapons based only on reasonable suspicion—could not be justified on originalist grounds. See Minnesota v. Dickerson, 508 U.S. 366, 381 (1993) (Scalia, J., concurring) (finding “no English authority” and “no clear support at common law” for physical searches of suspects absent probable cause). Some subsequent scholarship appears to validate Justice Scalia’s view. See, e.g., Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation 40-41 (2d ed. 2014) (asserting that in America and England during the period preceding the American Revolution, “[w]arrantless searches and seizures were virtually nonexistent or at least uncontroversial,” and “[o]nly one type of warrantless seizure may have been common, that is, the arrest of a suspected felon”); Heather Winter, Resurrecting the “Dead Hand” of the Common Law Rule of 1789: Why Terry v. Ohio is in Jeopardy, 42 Crim. L. Bull. 564, 565 (2006) (“The historical evidence reveals that Terry frisks did not occur at common law and would have been viewed unfavorably by the Constitution’s framers.”); George C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment, 80 Notre Dame L. Rev. 1451, 1515 (2005) (concluding that Terry, insofar as it permits a warrantless frisk on the street without probable cause, “would have baffled the Framers”).

(But I'm not sure what Scalia would have thought about seizing a bullet.)

UPDATE:  Josh Blackman emails: "Pryor got Terry right.  But the dissent's framework was solid."

Agreed.  (I hear he has more on twitter).


Jud Campbell: Compelled Subsidies and Original Meaning
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted Compelled Subsidies and Original Meaning (17 First Amendment Law Review 249 (2019)) (30 pages) on SSRN.  Here is the abstract: 

The rule against compelled subsidization of speech is at the forefront of modern First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal “contraceptive mandate” have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modern compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task. 

Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very different from our own. And that is especially true when it comes to the First Amendment. In certain contexts, some Founders argued that compelled subsidies violated their rights. But these were contested arguments. The challenge, then, is to situate Founding Era ideas in a historical frame that may bear little resemblance to modern law. Such a frame, this Essay argues, indicates that rights of expression and religious exercise — undergirded by freedoms of thought and conscience — neither entirely excluded nor inviolably privileged arguments against compelled subsidies. Rather than providing determinate answers, the Founding-Era conception of rights encouraged active debate about the boundaries of governmental power. Compelled-subsidy doctrine thus sits in a precarious position — within the bounds of reasonable historical argument but also deeply novel in its modern rigidity and judicial enforceability.


Mark Pulliam on Harry Jaffa
Michael Ramsey

At Misrule of Law, Mark Pulliam: “Bad Originalism”: Harry Jaffa’s Toxic Constitutional Legacy (commenting -- very harshly,m as the title indicates -- on the "Claremont school" of originalism associated with the late Harry Jaffa).  From the introduction:

My recent exchange (hereherehereherehere, and here) with a disciple of the late Harry V. Jaffa, the vituperative political philosopher long associated with Claremont McKenna College, prompted me to explore in greater detail Jaffa’s many feuds with leading conservative figures, such as Chief Justice William Rehnquist, Associate Justice Antonin Scalia, former Attorney General Ed Meese, Judge Robert Bork, law professor Lino Graglia, and noted constitutional litigator Chuck Cooper of the law firm Cooper & Kirk (who clerked for Rehnquist and served in the Department of Justice under President Reagan)—all of whom he harshly condemned. [1] These feuds were pursued for the most part in the pre-digital age, and cannot easily be accessed in detail via the Internet. Accordingly, I recently obtained a copy of a 1999 compilation of Jaffa’s essays on the Constitution, Storm Over the Constitution, that is a fascinating summary of his eccentric views. Storm Over the Constitution features a Preface by Larry P. Arnn, an Introduction by Edward J. Erler, and essays by Graglia and Cooper (reprinted from elsewhere).   

Here are some highlights...

And from later on: 

Jaffa’s disciples, such as Edward Erler, continue this misguided campaign. Erler concursthat any legal arrangement other than traditional marriage—between one man and one woman—is constitutionally forbidden. Thus, not only is Obergefell wrong, but in the view of Jaffa and Erler courts should strike down any democratically-enacted recognition of same-sex marriage as contrary to “natural law.” Erler is emphatic on this point:

There is no doubt that the family is integral to the foundation of free society. But does that include all types of family structure? Polygamy? Same sex? Polyamory? Or is it simply a matter of indifference to be left to the conscience of the community (whatever that is)? Natural law or natural right easily answers that question: marriage is between a man and a woman; the family begins with the distinction between the sexes. Community conscience cannot be the standard because the conscience of the community is ever evolving whereas the principles that brought us our Constitution are permanent….

In other words, voters and elected officials are bound by the Jaffa camp’s conception of “permanent” natural law, and can never change the Constitution to deviate from Jaffa’s moral agenda, even by amendment or the unanimous consent of the polity. As Erler says, “Natural law placed moral limits on the majority—the majority, for example, could not approve anything that violated the laws of nature.” 


A Response to Mike Rappaport on the Ninth Amendment
Andrew Hyman

Professor Rappaport recently wrote on this blog: “The [Ninth] Amendment does not say ‘the rights retained by the people should be protected as constitutional rights.’ Instead, it merely says that they should not be ‘denied or disparaged.’”  But does it even say that?  I respectfully disagree that the Ninth Amendment means (or says) that the rights retained by the people should not be denied or disparaged.  Rather, that Amendment means the Constitution’s enumeration of powers —- and not its enumeration of rights —- may be construed to deny or disparage unenumerated retained rights to the same extent as under the original unamended Constitution.

Why, you might ask, would the framers have suggested that the enumeration of powers can be construed to deny unenumerated retained rights?  It is not a mystery.  As James Madison wrote to George Washington on December 5, 1789: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

All they wanted to accomplish with the Ninth Amendment was to dispel the notion that the listing of rights elsewhere in the Constitution was exhaustive.  In other words, they viewed the original Constitution as a “bill of powers,” the great residuum being (or including) the unenumerated legal rights retained by the people.  This understanding seems amply confirmed by Madison’s 1789 speech introducing the Bill of Rights in Congress, and by George Washington’s 1787 cover letter transmitting the Constitution to the states for ratification, and also by other documents from that era (that I won’t enumerate!).

Ilan Wurman: The Origins of Substantive Due Process
Michael Ramsey

Ilan Wurman (Arizona State University - Sandra Day O'Connor College of Law) has posted The Origins of Substantive Due Process (University of Chicago Law Review, forthcoming) on SSRN.  Here is the abstract: 

In the antebellum nineteenth century, courts often voided legislative acts for substantive unreasonableness or for exceeding the scope of legitimate police powers. Contrary to the assertions of a number of modern scholars, however, this tradition does not support the concept of economic substantive due process. Courts voided municipal acts exceeding the scope of legitimate police powers on two grounds — the law of delegation and the law of municipal corporations — that did not apply to acts of state legislatures. The states themselves were limited to reasonable exercises of the police power only when their asserted authority came into potential collision with federal constitutional requirements, namely the commerce and contracts clauses. 

It was only late in the century, after the adoption of the Fourteenth Amendment, that a police-power version of substantive due process emerged as a limitation on state legislatures as courts began conflating, under the guise of “due process of law,” earlier doctrines that had used a similar vocabulary but for distinct purposes. Police-power limitations on state legislatures regulating purely internal matters therefore probably cannot be justified by any antebellum legal conception of due process of law. It is possible, however, that such limitations could find support in the privileges or immunities clause by analogy to antebellum commerce clause and contracts clause jurisprudence.


Henry Lowenstein & Kathryn Kisska-Schulze: A Historical Examination of the Constitutionality of the Federal Estate Tax
Michael Ramsey

Henry Lowenstein (Coastal Carolina University - Management and Law) and Kathryn Kisska-Schulze (Clemson University College of Business) have posted A Historical Examination of the Constitutionality of the Federal Estate Tax (William & Mary Bill of Rights Journal, Vol. 27, No. 1, 2018) (30 pages) on SSRN.  Here is the abstract:

During the 2016 presidential debate, Hillary Clinton vowed to raise the estate (death) tax to 65%, while Donald Trump pledged to abolish it as part of his overall tax reform proposal. An interesting question resonates as to whether the tax is even constitutional. This paper takes a fresh look at the Estate Tax, appropriate in an era of a U.S. Supreme Court consisting of a majority of adherents to a more “strict constructionist” view of constitutional interpretation. Although historically regarded by the U.S. Supreme Court as being a constitutional excise tax, it can be theorized that the estate tax is an unconstitutional overreach of taxing power by the Federal government and constitutes a “taking” of private property banned by the 5th Amendment. This article directly confronts the constitutionality of the federal Estate Tax from a purely bedrock perspective. To meet this objective, were review the enumerated powers of Federal taxation as allowed by the U.S. Constitution; dissect the scope of the estate tax, to include an analysis of the judicial and legislative history supporting its constitutionality; theorize that the tax does not have a constitutional basis legitimizing its inclusion in the Federal tax code; and conclude that the estate tax violates the U.S. Constitution and should therefore be repealed.


Does The Ninth Amendment Constitutionally Protect Unenumerated Rights?
Mike Rappaport

Recently, I wrote a couple of posts on whether the Privileges or Immunities Clause protected unenumerated rights. In my view, the Clause does protect such rights, but in a disciplined way.

This naturally raises the question whether another part of the Constitution—the Ninth Amendment—also protects unenumerated rights. Here I want to explain my view that the Ninth Amendment recognizes unenumerated rights but does not protect them as constitutional rights.

There are two common opposing positions on the Ninth Amendment. One view is that the Amendment refers to natural rights and protects them as other constitutional rights. Thus, if there was a natural right to possess private property, the courts should hold unconstitutional any federal laws that violate that natural right.

The opposite view is that the Ninth Amendment does not provide constitutional protection for those rights. There are a variety of ways that people reach this conclusion—some based on a federalist interpretation of the Ninth Amendment, others based on a nonjusticiability interpretation, and many others—but they all conclude that courts should not hold violations of natural rights to be unconstitutional under the Ninth Amendment.

Over the years, I have adopted various positions on the Amendment. Today, I have something of an intermediate position. I agree that the Ninth Amendment makes reference to unenumerated natural rights. But I do not believe that it protects those natural rights as constitutional rights.

Let’s start by looking at the language of the Amendment, which provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” While some people deny that this language refers to natural rights, I have now come to believe that the best reading is that it does refer to such rights. In particular, the rights “retained by the people” was generally understood as referring to natural rights at the time. Thus, the Constitution does make reference to natural rights.

This is hardly surprising. At the time of the Constitution, the dominant approach to conceptualizing government was a Lockean social compact framework, a framework that also lay at the foundation of the Declaration of Independence.

But just because the Ninth Amendment refers to natural rights does not mean that it protects such rights as constitutional rights. The Amendment does not say “the rights retained by the people should be protected as constitutional rights.” Instead, it merely says that they should not be “denied or disparaged.”

When the original Constitution was enacted, but the before the Bill of Rights and the Ninth Amendment were passed, natural rights were not enforced by the courts to hold statutory provisions that conflicted with those rights void. Instead, such rights were understood as providing a political justification for government and for constraints on that government. The violation of such rights might justify rebellion (as they did in the War for Independence), but those rights were not enforced by courts as constitutional rights that took priority over statutes.

The Ninth Amendment is concerned that the enumeration or listing of rights shall not be construed to deny or disparage natural rights. That means that the listing in the Bill should not lead to any reduction in the role of natural rights. But since natural rights were not enforceable by courts as constitutional rights prior to the Bill of Rights, the refusal of courts to enforce them after the listing does not disparage them. Courts continue to respect their traditional status. They simply do not elevate that status.

Does this leave these natural rights with no function other than as a justification for government and constraints? No. Natural rights were also reflected in the common law and so courts would properly consider natural rights when articulating common law rights. Similarly, natural rights were relevant when interpreting statutes. Statutes that seemed to abridge such rights were not interpreted to do so unless there was a clear statement to that effect. These functions may still be proper today. But the Ninth Amendment does not require or authorize the Courts to hold statutes unconstitutional that violate natural rights.

Ilya Somin: No Appeal in FGM/Commerce Clause Case
Michael Ramsey

At Volokh Conspiracy, Ilya Somin:  Justice Department Decides Not to Appeal Court Ruling Striking Down Federal Law Banning Female Genital Mutilation.  From the introduction:

On Friday, the Justice Department announced that it will not appeal a federal trial court decision ruling that the federal law banning female genital mutilation (FGM) is unconstitutional. This is likely to be an unpopular move. But it is right thing to do nonetheless. The federal FGM ban exceeds the scope of Congress’ power under the Constitution. I summarized the reasons why in this post on the trial court decision:

Article I of the Constitution does not give Congress any general power to suppress crime or child abuse. Therefore, the federal government tried to shoehorn the FGM ban into the Commerce Clause, which gives Congress the power to regulate interstate commerce. On first principles, it is pretty obvious that, at least in most cases, FGM is not a form of interstate commerce. It is generally performed within one state and often isn’t even a commercial transaction. However, misguided Supreme Court decisions have interpreted the Commerce Clause so broadly that they now allow Congress to regulate virtually any form of “economic activity,” even if it is only performed within a single state, and even some forms of “noneconomic” activity, so long as banning it is part of a broader “regulatory scheme” aimed at an interstate market. But… the FGM ban does not fit even these broad criteria, and is also at odds with previous Supreme Court decisions, including United States v. Morrison (2000), which make it clear that the Commerce Clause does not give Congress the power to ban local violent crime…

If Congress does not have a general power to forbid violence against women or other violent crime – such as rape and murder – it also does not have the power to ban FGM. Like other crime, FGM, of course, has some effect on interstate commerce. But if the Commerce Clause gave Congress the power to forbid any activity that affects interstate commerce in some way, it would have the power to ban virtually anything, as almost any type of human behavior has some effect on what people buy, sell, or transport in interstate trade.

The case is United States v.  Nargarwala (E.D. Mich. 2018).

Professor Somin raises a related question: does the President have an obligation to defend the law?  He says no:

Some experts who agree that the anti-FGM law is unconstitutional nonetheless condemn the Justice Department’s decision not to appeal, because they believe DOJ has a duty to defend the constitutionality of any federal law for which a plausible defense can be offered. I disagree for reasons outlined here and here. The Justice Department’s highest legal duty is to defend the Constitution, not federal laws that violate it.


Michael Dorf: Why Is the Constitution Authoritative?
Michael Ramsey

At Dorf on Law, Michael Dorf:  Why Is the Constitution Authoritative? (He does not pose this question specifically to originalists, but it's interesting to think about what the originalist answer(s) would be).

He first says that the Constitution cannot be authoritative simply because is says it is (in Article VI).  That seems right.  Next:

Many judges, lawyers, scholars, and laypeople would say that the familiar Constitution is authoritative because it was lawfully ratified by the states in 1789. Yet that answer seems inadequate too. For one thing, the Constitution was not lawfully ratified, at least not under the pre-existing law under the Articles of Confederation, which required unanimity for any amendments; however, Article VII of the Constitution made it effective among the ratifying states upon ratification by nine rather than all thirteen states. True, all thirteen eventually ratified, but Rhode Island did not do so until May 1790, eight months after the new government got going in violation of the Articles of Confederation.

I think in general this is the answer many originalists would give.  Except that I don't think they would think it turns on whether the Constitution was "lawfully" adopted pursuant to the Articles.  The Constitution was treated by the Founding generation as having been duly ratified and having become binding.  I think originalists would see that as key, and would not see the questionable legality under the Articles as undermining it.

Professor Dorf continues:

More fundamentally, even setting aside the original Constitution’s dubious legality, how can its ratification 230 years ago by representatives of an electorate that excluded women and enslaved African Americans render it a legitimate authority for our diverse polity of today? This question reflects the so-called dead hand problem. The Constitution imposes all sorts of limits on what democratically elected governments can do. It even limits the extent to which the US functions as a democracy or a representative republic, by, for example, over-representing the small states in the Senate and the Electoral College. Seen from this perspective, ratification 23 decades ago hardly grounds the Constitution in democratic principles; it undermines such principles.

Here I'm not sure of the consensus originalist response.  Some people might say that it can be amended, and so to the extent it is not amended, it remains authoritative.  Professor Dorf objects to this response by saying it is too hard to amend.  I think I would say that it can be amended or abandoned (from an originalist perspective some parts of it have been abandoned), so this is not as strong an objection.  The people choose to continue to regard the Constitution as authoritative.

This is sort of like his answer:

Perhaps ... [the] Constitution ... is binding because the relevant government authorities treat it as binding. This answer, which follows the approach laid out by the late British legal scholar H.L.A. Hart, treats the Constitution’s legality as a kind of social fact.

The main problem with accepting Hart’s view is that it strips the Constitution’s legality of any special democratic legitimacy. After all, it is easy to imagine how government authorities might treat a very different sort of document or institution as binding. Indeed, we need not use our imagination. Applying the Hart criterion, we can say that it is a social fact that the government of North Korea is a dictatorship under Kim Jong-un. ... Are we really prepared to say that the US Constitution’s legality, like the Kim regime’s rule, rests on no more than brute force?

But no, I don't think the Constitution is binding because the authorities say it is authoritative -- surely the right view is that what counts is that the people, not the authorities, treat it as authoritative.

Still , I'm not sure this is fully satisfactory to originalists, because one might conclude that the people don't treat the originalist Constitution (or at least, all of the originalist Constitution) as authoritative.  (Will Baude and Steve Sachs argue to the contrary but not all originalists are persuaded.)

In conclusion:

Ultimately, there may be no fully satisfactory account of the Constitution’s authority. At most we may be able to explain the binding force of the Constitution by combining a brute social fact – that authorities and most ordinary citizens accept the Constitution’s authority – and some reasonably  attractive features of the Constitution: Although hardly perfect, our familiar Constitution establishes a roughly representative system of government and, as construed by the courts, it generally protects important civil and political rights.

Can originalists do better?


Frederick Schauer: A Critical Examination of the Distinction between Interpretation and Construction
Michael Ramsey

Frederick Schauer (University of Virginia School of Law) has posted A Critical Examination of the Distinction between Interpretation and Construction (33 pages) on SSRN.  Here is the abstract:

The distinction between interpretation and construction, with its roots in the law and theory of contracts, has become a central theme in contemporary debates about constitutional theory. According to the distinction, advanced and elaborated by Lawrence Solum, Keith Whittington and many others, interpretation is the process of locating the linguistic meaning of an authoritative text in a statute, in the Constitution, or in any other authoritative legal item. But at the heart of the distinction is the idea that identifying the linguistic meaning of a legal text does not answer the question of how that text should be applied to specific facts and specific legal controversies. This is construction, so it is said, and it necessarily goes beyond the process of interpretation.

Although the distinction is a valuable precaution against those who would seek to claim that the application of law is entirely or mostly a question of meaning, it runs into trouble when it confronts the existence of technical legal language in the law. Interpreting such language, especially when it is constitutive or evaluative, requires recourse to legal values, legal goals, and the purposes of legal institutions, but in doing so it requires recourse to law at interpretation stage. As a result, the basic insight of the distinction between interpretation and construction – that semantic content and legal values are different, and that law enters the process only at the construction stage – is of limited value when the language at issue is legally technical.

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

Professor Schauer presented an earlier version of this paper at the University of San Diego Originalism Works-in-Progress conference in February.


More from Mark Pulliam on Privileges or Immunities
Michael Ramsey

At Law & Liberty, Mark Pulliam: Still Searching for the Judicial “Holy Grail”.  From the introduction:

Well into the 1980s, under the spell of what is now denigrated as the “old” originalism,” most conservative scholars shared the sentiment of University of Texas law professor Lino Graglia that the “privileges or immunities” clause is “one of those blessed constitutional provisions that by being ignored has not caused a single bit of trouble.” Not terribly long ago, incorporation was openly questioned, even if many skeptics conceded that stare decisis made doctrinal retreat impossible. Only outliers in the legal academy were concerned that the Slaughter-House Cases had rendered the clause “a vain and idle enactment,” as Justice Field lamented in his dissent. That was then.

Originalists have gotten “woke,” and–now styling themselves “new” originalists–have acquired an irresistible fascination for the once-moribund clause, and a renewed interest in exhuming a precedent that has mouldered in the jurisprudential ground for almost 150 years.  Robert Bork pronounced that the clause “has been a mystery since its adoption and, in consequence has, quite properly, remained a dead letter.”  “New” originalists bristle at Bork’s assessment, urging ever more creative interpretations of the words “privileges or immunities” in an attempt to revitalize a clause that has become what Justice Scalia derisively called the “darling of the professoriate.”

And from later on:

I am not the first—or only—dissenter on this subject, and commend the fine work done by the Hon. Stephen Markman, most notably his 2016 report for the Heritage Foundation, entitled “The ‘Judicial Holy Grail’: Why the Supreme Court Should Not Revisit the Privileges or Immunities Clause,” with which I agree and from which I freely borrow. Markman bluntly—but accurately—diagnoses the academy’s infatuation with the clause:

The continuing debate over the meaning of the clause is largely between factions of the “professoriate,” many of whom seem bent on conferring meanings to the clause that were never even remotely contemplated by its framers and ratifiers. The common result of these interpretations would be to further centralize and strengthen governmental power—in particular, that of the federal government at the expense of state governments and that of the judiciary at the expense of more accountable and representative branches of government.

To address my critics, I pose three questions. ...


Two Justice Gorsuch Profiles
Michael Ramsey

Two profiles of Justice Gorsuch in popular commentary highlight his originalism.  At Bloomberg: Gorsuch Charts Course as Originalist With Independent Streak.

Justice Neil Gorsuch has delivered almost precisely what conservatives were hoping for over his two years on the U.S. Supreme Court, even though his principles occasionally take him in other directions.

He’s followed the originalist mold of the late Justice Antonin Scalia, even joining the court’s liberals at times on criminal procedure matters as Scalia often did. He’s made Clarence Thomas less of an iconoclast in arguments to overturn longstanding precedents.

But he’s also made his individual marks with bold wording on capital punishment and Native American rights, including his opinion this month that the Eighth Amendment’s protection against cruel and unusual punishment doesn’t “guarantee a prisoner a painless death.” 

“Gorsuch has been a grand slam for President Trump, who campaigned on a promise to appoint originalist and textualist justices in the mold of Scalia,” Mike Davis, who clerked for Gorsuch at the U.S. Court of Appeals for the Tenth Circuit and at the high court, told Bloomberg Law. ...

In the Washington Times:  The New Scalia: Neil Gorsuch befriends liberal justices while exceeding conservatives' expectations.

When President Trump picked a replacement for the late Justice Antonin Scalia he promised conservatives someone in the same mold — a New Scalia, as legal observers put it.

Two years into his term, Justice Neil M. Gorsuch has exceeded those conservatives’ expectations, carving out a role as a superb writer and careful advocate for the originalist approach to the Constitution that Scalia helped pioneer.

“Being a true originalist, he’s probably a little more Scalia than Scalia,” said Curt Levey, president of the Committee for Justice. “He’s more than lived up to Trump’s promise.”

The comparisons go beyond the legal realm, too. Justice Gorsuch has even built an unlikely friendship with one of the court’s liberal members, Justice Sonia Sotomayor, just as Scalia did with arch-liberal Justice Ruth Bader Ginsburg...

An interesting theme in both articles: Gorsuch sometimes reaches politically liberal results through originalism and  conservatives are generally very happy with him.


Lawrence Rosenthal: An Empirical Inquiry into the Use of Originalism
Michael Ramsey

Recently published, in the Hastings Law Journal, Lawrence Rosenthal (Chapman):  An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia (70 Hast. L.J. 75 (2018)).  Here is the abstract:

There is likely no methodological question of greater importance to constitutional law than whether adjudication should be based on the original meaning of the Constitution’s text, or instead reflect an evolving understanding in light of felt experience. Little effort, however, has been made to test empirically the claim of originalists that their methodology offers an effective vehicle for constitutional adjudication.

This study is the first to assess the extent to which original meaning, in practice, proves able to resolve constitutional litigation. To do so, it examines Fourth Amendment jurisprudence during the career of a self-proclaimed originalist, Justice Antonin Scalia. Cases involving the Fourth Amendment’s prohibition on “unreasonable searches and seizures” were selected because stare decisis poses no apparent obstacle to the use of originalism in this area of constitutional law, and because the Fourth Amendment is typical of the kind of constitutional text likely to generate litigation.

Originalism played a small role in Fourth Amendment jurisprudence during the study period, with less than 14% of the opinions of the Court addressing a disputed question of Fourth Amendment law were originalist. Despite Justice Scalia’s professed commitment to originalism, he voted on originalist grounds in only 18.63% of cases. The Court’s other professed originalist, Justice Clarence Thomas, voted on originalist grounds in only 15.71% of cases. If anything, this study’s coding methodology likely overstates the prevalence of originalism. Voting patterns were not markedly different for Justices who do not profess fealty to originalism. These results seemingly reflect the difficulty in applying original meaning in contemporary constitutional adjudication, rather than a lack of commitment to originalism. This difficulty is likely generalizable to other areas of constitutional law, and casts doubt on the utility of originalism as an adjudicative methodology.


Jack Balkin on Ed Meese
Michael Ramsey

Balkinization is hosting an online symposium on the new book The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019) by Neal Devins and Lawrence Baum.  Jack Balkin's contribution is All Hail Ed Meese! From the introduction: 

Devins and Baum's The Company They Keep is a fine book that nevertheless manages to bury the lede. In order not to make the same mistake, I will state the theme of this review in the first paragraph. What Devins and Baum actually show—in spite of themselves—is how social movements change the Constitution. Moreover, the hero of the book is Ronald Reagan's second Attorney General, Edwin Meese, who does not even make an appearance until Chapter Three.

And on Meese's role:

But how do you change the minds of these elites? Once again there are two ways to do it. We've already described the first way: sustained social and political mobilizations that influence elite opinion. Once you get elite opinion on your side, the Justices connected to those elite networks will (eventually) follow.
But there's also a second way to change elite opinion: Create a new elite culture and *grow your own elites,* and work to make sure that judges and Justices are picked from that group.
... Meese set out to use his position [as Attorney General] to create a cadre of conservative legal intellectuals in the Reagan Justice Department. He reached out to law students in the newly-formed Federalist Society. Along with other older conservative intellectuals like Antonin Scalia, he worked to create a legal counter-establishment that would grow over time, and would become an indispensable network for locating young conservative talent and placing that talent in key positions.
As Steve Teles explains, this counter-establishment was aided by strategic additions of resources and support by various conservative funders. And as Amanda Hollis-Brusky has explained in her book Ideas with Consequences, the Federalist Society, following Meese's and Robert Bork's lead, eventually settled on constitutional originalism as the lingua franca of the rising movement of conservative legal elites. One did not have to be an originalist in order to be part of the Federalist Society network, but originalism was a convenient way of talking about common conservative commitments to limited government and the rule of law. 
Moreover, because the conservative movement eventually takes over the Republican Party, the Federalist Society becomes an increasingly important network connecting young conservatives to elite networks of power from the 1980s onward. The Federalist Society eventually becomes the gateway to getting many different kinds of government jobs in Republican administrations, including judicial appointments.
Meese is the real hero (or anti-hero, depending upon your politics) of Devins and Baum's book. That is because he was at (or near) the center of a series of decisions by conservative movement actors to create a new set of elites that would serve as both the farm team and the reference group for conservative judges, as soon as they could be appointed by Republican Presidents. ... Devins and Baum's book explains how and why conservative Justices are influenced by this elite opinion. But the key innovation is creating conservative elite opinion on the first place, which means, in this case, creating the conservative elites!
Also in the symposium, from John McGinnis: The Supreme Court as the Aristocratic Element of a Mixed Regime.


The Rosenkranz Originalism Conference at Yale Law School
Michael Ramsey

Yale Law School will inaugurate an originalism conference, the school announced.  (I wonder where they got that idea?)

From the official announcement:

Yale Law School is proud today to announce the launch of a major new intellectual initiative, “The Rosenkranz Originalism Conference at Yale Law School.” This program, many months in the making, will bring prominent academics and jurists to Yale for a day-long conference each semester to discuss and debate various approaches to and critiques of originalism in constitutional thought and practice. The initiative will be led by Professor Steven G. Calabresi ’83 and Professor Akhil Reed Amar ’84 and is sponsored by — and was largely inspired by — Professor Nicholas Quinn Rosenkranz ‘99.

Calabresi, who co-founded the Federalist Society while a student at Yale Law School and went on to work closely with leading champions of originalism in the 1980s — including Robert Bork, Antonin Scalia, and Ed Meese — currently serves as Chairman of the Board of the Federalist Society. ...

Amar, who styles himself a “liberal originalist,” has also written widely about the text and original meaning of the Founding-era Constitution and its subsequent amendments — perhaps most notably in his prizewinning books, The Bill of Rights: Creation and Reconstruction (1998) and America’s Constitution: A Biography (2005) and in his 2000 Foreword to the Harvard Law Review. Calabresi and Amar will also regularly co-teach a seminar at Yale Law School on originalism, which will be closely coordinated with the Rosenkranz Originalism Conference. ...

Professor Rosenkranz has published several groundbreaking articles in the Harvard Law Review and the Stanford Law Review, including The Subjects of the Constitution, which is one of the most downloaded articles about structural constitutional law of all time. ... While a student at Yale Law School, Rosenkranz worked closely with Amar, and in recent years he has worked alongside Calabresi as a member of the Board of Directors of the Federalist Society.

So now there will be at least three schools with dedicated originalism conferences -- USD, Georgetown and Yale.  Who's next?

(Thanks to Andrew Hyman and Michael J. Perry for the pointer).

More here from the Yale Daily News, including:

The conference, which takes place on a Friday once every semester, will feature two originalist thinkers, one each in the morning and afternoon, who will have conversations with Amar and Calabresi in a crossfire format. The event will also host a keynote address by a prominent jurist such as Justice Neil Gorsuch, Amar suggested. The event will end with a roundtable discussion with students, the keynote speaker, originalist thinkers and both Calabresi and Amar.

And this:

During an admitted law students reception for the Federalist Society, Yale Law School Dean Heather Gerken announced the launch of a semiannual originalism conference ...  Around 40 current and admitted Law School students — current or prospective members of the Federalist Society — as well as a few professors attended the reception.


John Vlahoplus: Foreign-Born Children of Disloyal Parents
Michael Ramsey

John Vlahoplus (Independent) has posted Foreign-Born Children of Disloyal Parents: Adam Muthana, Mary Arcedeckne and the Natural Born (St. John's Law Review, forthcoming) (106 pages) on SSRN.  Here is the abstract:

The collapse of the Islamic State of Iraq and Syria has left thousands of foreign ISIS adherents and their children in refugee camps controlled by irregular forces. The United States faces the question whether its emigrants' disloyalty affected their citizenship and that of their children born in the self-proclaimed caliphate. This article frames the American citizenship issues in light of common and statutory law from which American law developed, with particular regard to the 1730 House of Lords decision in Arcedeckne v. Horan. That case determined whether a British derivative nationality statute deemed the foreign-born child of disloyal subjects to be natural born and therefore capable of inheriting real property in Ireland. This article is the first extended analysis of Arcedeckne and appends transcriptions of previously unpublished primary source materials from the case. 

The article applies the principles of Arcedeckne, the common law, and American constitutional and statutory law to the case of Hoda Muthana, a New Jersey-born ISIS adherent, and her foreign-born son Adam. It identifies potential challenges to the federal government's argument that neither is a citizen as well as to Adam Muthana's claim to derivative citizenship. In particular it identifies textual and historical challenges to the federal government's argument, including inconsistencies between it and natural allegiance at common law. The article suggests that the federal government relies on a consequentialist argument in the case based on the evolving threat of global terrorism rather than on textual or historical methods of legal interpretation that many in the executive branch espouse.


Eighth Amendment Originalism(?)
David Weisberg

As a citizen, I’m opposed to capital punishment.  As a lawyer, I believe lethal injection does not violate the 8th Amendment and that Bucklew v. Precythe was correctly decided.  As a student of constitutional interpretation, I believe that originalism was entirely irrelevant to the soundness of that decision. 

I have argued that one should (rebuttably) assume that every word in the Constitution has a primary meaning today that is identical to the primary meaning it had when the Constitution was adopted.  This argument is based on the etymological findings of the Oxford English Dictionary, which I believe are more reliable and inherently less biased than law office lexicography.  Prof. Stinneford, in contrast, believes that, in the context of the 8th Amendment “unusual” means “contrary to long usage,” rather than the more common or usual (pun intended) meaning of “rare” or “uncommon.”  He also writes: “[T]he most reliable way to tell whether a punishment is unjustly harsh is to compare it to punishments that enjoy long usage.  If it is significantly harsher than tradition will permit, it is cruel and unusual.” 

I agree that “unusual” currently means “rare” or “uncommon”, and I also believe it had that same non-technical, ordinary meaning in 1791.  The O.E.D.’s primary definition of “cruel” is: “Disposed to inflict suffering; indifferent to or taking pleasure in another’s pain or distress; destitute of kindness or compassion; merciless, pitiless, hard-hearted.”  According to the O.E.D., that has been the primary meaning since at least 1297.

Here is why I believe originalism is irrelevant to the decision in Bucklew.  I assume there is general agreement that the use today of lethal injection is constitutional.  But lethal injection was used for the first time as a method of execution in the U.S. in 1982.  Was that first use a violation of the 8thAmend?

As I understand Prof. Stinneford, this question would require comparing lethal injection to traditional methods of execution and, if the former is significantly harsher than those traditional methods, lethal injection would be unconstitutional.  But, because lethal injection had never been used before its first use in 1982, there was no empirical, factual basis on which to compare the harshness of that method to the harshness of traditional methods.  One would have been simply guessing if one said, as a matter of fact, that lethal injection would afford a gentler, less painful death than traditional methods.  The only thing that could be known with relative certainty, prior to the first use, was that the method had been devised on purpose to minimize suffering. 

Thus, even before the first use there was substantial evidence that lethal injection was not “cruel” in the ordinary meaning that word has had since 1297—that is, it was not a method “disposed to inflict suffering”—but there was no evidence at all whether the method was harsher than methods previously used.  Wondering whether lethal injection “is significantly harsher than tradition will permit” gets us no closer to an answer to the question of the constitutionality of its first use; we have no procedure to measure a priori harshness.  Asking whether the method was designed or disposed to inflict suffering does provide an answer, and that answer turns on the definition of “cruel”—a definition that has been valid for more than seven hundred years.  And that same, simple definition--without reference to abstruse questions of comparative harshness of punishments--fully supports the result in Bucklew, because there was no evidence that the method of lethal injection approved in that case was designed with a view toward the infliction of special or enhanced suffering on a convict who had a rare tumorous condition in his throat.  As the Bucklew majority observed, nothing in the 8th Amendment purports to "guarantee a prisoner a painless death." 


Eric Segall: Originalism Off the Ground
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted Originalism Off the Ground: A Response to Professors Baude and Sachs (Constitutional Commentary, forthcoming) (19 pages) on SSRN.  Here is the abstract: 

Professors Will Baude and Stephen Sachs are a legal realist’s worst nightmare. In their forthcoming Northwestern Law Review essay “Grounding Originalism,” they continue their Arthurian quest to convince the legal world that originalism has been and currently is our law. They denote this effort a “positivist” account of our legal practices and claim theirs is a more accurate description of constitutional law than competing theories such as common law constitutionalism and pluralistic decision-making. To legal realists, and most political scientists who study the Supreme Court, however, originalism is just one of many methods of constitutional discourse, and only a slight one. Far from being our law, originalism is used by judges mainly as a rhetorical device to justify decisions reached on other grounds. There is substantial data, as well as detailed descriptive accounts by experts, that strongly suggest that where judges have legal discretion, their values, experiences, and politics determine the sum and substance of our law. Those values, experiences, and politics, as this essay will show, do not reflect the values of people living in 1787 or 1868, or the law of that time, but our judges’ values today. The weakest aspect of Baude and Sachs’ recent essay, and their other detailed and complicated efforts to portray originalism, not just as part of our law, but as our law, is their failure to wrestle directly with legal realist and political science critiques of judicial decision-making. 


Gregory Klass: Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right
Michael Ramsey

Gregory Klass (Georgetown University Law Center) has posted Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right (Georgetown Journal of Law & Public Policy, forthcoming) (39 pages) on SSRN.  Here is the abstract:

Interpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules of construction apply only when interpretation runs out, such as when a text’s meaning is ambiguous or does not address an issue. In fact, a rule of construction is always necessary to determine a legal speech act’s effect, including when its meaning is clear and definite. Construction does not supplement interpretation, but compliments it. Second, there exists more than one form of interpretation, and correspondingly more than one type of meaning. The meaning a text or other speech act has depends on the questions one asks of it. Third, which type of meaning is legally relevant depends on the applicable rule of construction. Rules of construction are in this sense conceptually prior to legal rules of interpretation. This priority has important consequences for how legal rules of interpretation are justified. Finally, because there exist multiple types of meaning, when one form of interpretation runs out, another form might step in. Whether that is so again depends on the applicable rule of construction.

These four claims apply to legal interpretation and construction generally. This Article supports them with a close examination of the interpretation and construction of contractual agreements. It then argues that this account of interpretation and construction illuminates the shared structure of Joseph Story’s and Thomas Cooley’s theories of constitutional interpretation, and by extension theories of constitutional interpretation generally.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week").



John Stinneford on Eighth Amendment Originalism and Bucklew v. Precythe
Michael Ramsey

At Volokh Conspiracy, John Stinneford (Florida) has this guest post on the Supreme Court's recent decision in Bucklew v. Precythe: What Bucklew Doesn’t Say.  From the introduction: 

... The majority opinion is explicitly originalist in its approach to the Cruel and Unusual Punishments Clause, a rare (if not unprecedented) phenomenon in the modern history of the Court. But in contrast to some prior originalist concurrences or dissents by Justices Scalia and Thomas, the Bucklew Court does not rush to make any comprehensive claims about the original meaning of the Clause. Rather, it skirts around the edges of the Clause's original meaning, deciding only enough about that meaning to demonstrate (to its own satisfaction, anyway) that Missouri's lethal injection protocol is constitutional. In this regard, Bucklew is an admirably modest opinion.

And from further on:

In the context of the Eighth Amendment, "unusual" means "contrary to long usage," not "rare" or "uncommon." It derives conceptually from the common law. Although today people often describe the common law as judge-made law, it was traditionally considered a form of customary law – the law of "long use and custom." Its authority did not derive from any claimed judicial lawmaking power. Rather, it derived from the idea that customary practices that are used over a very long period of time are presumptively just, reasonable, and enjoy the consent of the people – for if they lacked these qualities, they would fall out of usage. Because longstanding customs are presumptively reasonable, they can appropriately be enforced as law. The job of the common law judge is to identify longstanding customs and apply them in new cases.

Over time, the normative power of "long usage" gave rise to the idea of rights enforceable against the state. The idea was that even the sovereign lacked authority to violate fundamental rights established through long usage. This was the key idea underlying the American Revolution as well as the Bill of Rights. In this light, it becomes clear why the Eighth Amendment prohibits "cruel and unusual" – and not just "cruel" – punishments. Under the common law ideology that underlies the Eighth Amendment, the most reliable way to tell whether a punishment is unjustly harsh is to compare it to punishments that enjoy long usage. If it is significantly harsher than the tradition will permit, it is cruel and unusual.

One corollary to the notion of "long usage" is that if a once-traditional punishment ceases to be used for a long period of time, it is no longer part of the tradition. As Edward Coke wrote in the 17th century, "Custom loses its being if usage fails." Thus, contrary to Justice Scalia's claim, the Cruel and Unusual Punishments Clause does not tie us to the specific moral standards of 1790. If a punishment falls out of usage for multiple generations, it loses its presumption of reasonableness. If Congress sought to reinstitute the death penalty for a crime like counterfeiting, or to reimpose methods of punishment like branding or bodily mutilation, such punishments could be challenged as cruel and unusual despite the fact that they were acceptable in 1790 – for they have been disused for so long that they are no longer part of the tradition.

And in conclusion:

... [H]ad the Bucklew Court focused on the primary meaning of "unusual," it would have been able to draw on a relatively objective and determinate standard for measuring the cruelty of Missouri's lethal injection protocol: longstanding prior practice. Such a standard is notably missing from the Bucklew opinion. The Court notes that determining cruelty is a comparative process: for example, hanging was comparatively less cruel than long-disused punishments that "superadded" terror, pain, or humiliation to the process. Thus it was constitutionally acceptable even though it involved a significant risk of pain. Similarly, the Court held, the constitutionality of Missouri's lethal injection protocol must be determined by comparing it to some other punishment method. But rather than comparing the protocol to traditional methods of execution, the Bucklew Court relies on the "pick your poison" requirement, holding that the condemned offender himself should identify an acceptable (and feasible) method of execution to use as a point of comparison.

This requirement is obviously untethered from any constitutional standard as to what constitutes a cruel and unusual punishment. What if the only "feasible" alternatives are themselves unjustly harsh in comparison to traditional methods of punishment? In such a situation, the "pick your poison" requirement would force offenders to choose between two unconstitutional alternatives as the price of challenging the constitutionality of a method of execution. This result is precisely the opposite of what the Cruel and Unusual Punishments Clause requires. Let's hope that in a future case, the Court goes further and recognizes the full original meaning of "unusual." The point of comparison should be traditional punishments that have not fallen out of the tradition, not other "feasible" punishments whose constitutionality has not been established. The Constitution is strongest when judicial rulings are based on standards derived from the text and not their own invented requirements.

On the other hand, the Bucklew Court's recognition that punishments can become unusual if they suffer long disuse is a hopeful sign for the future. One of the primary objections to an originalist approach to the Cruel and Unusual Punishments Clause is that it would force courts to uphold punishments like branding and bodily mutilation because they were used in 1790. This objection is so powerful that it led Justice Scalia himself, early in his career on the Supreme Court, to call himself a "fainthearted originalist" and to express doubt as to whether – should push come to shove – he could actually enforce what he considered the original meaning of the Clause. Once the Court recognizes that the Clause does contain a principle of legal development – albeit one that operates very differently from the "evolving standards of decency test" – this objection evaporates. Execution for minor crimes, and the use of punishments like mutilation and branding, are no longer part of our tradition, and thus would not have to be automatically approved should the government try to revive them. Originalists need no longer be faint-hearted.

Professor Stinneford is the premier scholar of the original meaning of the Eighth Amendment; his articles include: The Original Meaning of 'Cruel' (Georgetown Law Journal 2017); and The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation (Northwestern Law Review 2008) (cited by Justice Gorsuch's majority opinion in Bucklew).


The Unbearable Wrongness of Slaughterhouse
Mike Rappaport

In my last few posts, I have been arguing that it is problematic to continue to apply the Slaughterhouse Cases, because the majority decision is so wrong. It belongs in the worst category of Supreme Court cases, cutting the heart out of a key constitutional provision and leading the Court to employ nonoriginalism to compensate for it.

The 14th Amendment was a key constitutional amendment. After the Civil War, many in the former Confederate states resisted the regime sought by the victorious North. Once the 13th Amendment ending slavery was enacted, many of the former Confederate States sought to impose Black Codes which treated former slaves as second class citizens – depriving them of basic common law rights, such as the right to contract. The former Confederates argued this second class citizenship was consistent with the 13th Amendment because it fell short of full-fledged slavery.

To prohibit the Black Codes, Congress passed the Civil Rights Act. But the constitutionality of the Act was questionable (since it lacked an enumerated power foundation). In addition, it was possible that the Act would be repealed once the Democrats took back control of the Congress. Thus, section 1 of the 14th Amendment was designed in part to address these concerns, both providing a secure foundation for the Civil Rights Act and establishing basic protections in the Constitution itself. The relevant language stated:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It should be clear that the Privilege or Immunities portion of this provision was meant to be important. It was placed first and it most obviously protected individual substantive rights (rather than procedure or equality).

The Slaughterhouse Cases involved a state law that forbade the use of a slaughterhouse except at a specified slaughterhouse.  This was challenged as a violation of the privileges or immunities of citizens of the United States.  (The specific dispute in Slaughterhouse was not all that consequential for the issues of this post, although it does raise some interesting questions.)

Writing for a 5 to 4 majority, Justice Miller first concluded that the provision did not protect state privileges or immunities. Thus, the Clause did not cover the type of rights attacked by the Black Codes and protected by the Civil Rights Acts. This was extremely dubious. A key purpose of the Amendment was to protect these rights, yet Miller claimed they were not protected by the Clause. The reason: Miller believed that viewing these state law rights as protected would undermine federalism.

But even worse than this artificial exclusion of the privileges or immunities from state law rights is Miller’s description of what the privileges or immunities of citizens of the United States were. Here is an excerpt from the opinion:

the right of the citizen of this great country, protected by implied guarantees of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.’

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.

The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus.

The right to use the navigable waters of the United States, however they may penetrate the territory of the several States,

all rights secured to our citizens by treaties with foreign nations

A review of these rights shows the problem with viewing them as the “privileges or immunities of citizens of the United States” in the 14th Amendment. They are largely unrelated to the purpose of the Amendment to provide basic protections to the former slaves (and to unionists in the South).

Now, if this were the only meaning of “privileges or immunities of citizens of the United States,” then we would be stuck with it. But it was not. Instead, the Court chose it because it did not like that other interpretations would interfere with state rights and federalism. But while federalism is an important part of the Constitution, it cannot justify reading the Privileges or Immunities Clause to be irrelevant rubbish.

There were several other very plausible interpretations of this language. First, the Court could have interpreted that language to refer to enumerated rights that were conferred by the U.S. Constitution, such as the Bill of Rights. That would have had the advantage of at least protecting some rights of relevance, such as the First Amendment and the Comity Clause. This position has been ably defended in recent years by Kurt Lash. To my mind, though, there are significant problems with this view, which I may discuss in a later post.*

Second, the Court could have interpreted “privileges or immunities of citizens of the United States” to mean the rights enjoyed by citizens throughout the United States. Under this view, the rights would include state law rights that were enjoyed throughout the states of the union. If a right had been protected for many years throughout the country, then an attempt to take it away by some states would be unconstitutional. This would protect the common law rights mentioned in the Civil Rights Act and that the Black Codes infringed. This is my view of the Clause. While it raises many issues, it fits the language and strongly fulfills the purpose of the Clause.

Whichever alternative interpretation of the Clause one has, I think it is clear that Slaughterhouse was wrong – seriously and grievously wrong. It is as if a court interpreted “freedom of speech” to mean the right to speak when no one is listening, because the court feared that the unclear meaning of the provision might give the judiciary too much power. That would gut the First Amendment in much the same way that Slaughterhouse gutted the 14th Amendment.


* Kurt reads the Slaughterhouse opinion as not denying that the Bill of Rights was incorporated.  But it was not read that way, nor do I believe it can plausibly read that way.  Indeed, Justice Miller joined the majority in Cruikshank.

Lee Strang: The Declaration of Independence: No Special Role In Constitutional Interpretation
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted The Declaration of Independence: No Special Role In Constitutional Interpretation (Harvard Journal of Law and Public Policy, Vol. 42, No. 1, 2018) (16 pages) on SSRN.  Here is the abstract:

The Declaration of Independence is a beautifully written document; it is a potent symbol of our nation’s birth and founding principles; but it does not and should not play a unique role in constitutional interpretation. Instead, the Declaration is one source, among many, of the Constitution’s original meaning. I make three arguments to support this thesis. 

First and theoretically, I argue that mainline originalist theory has no analytical space within it for the Declaration to play a special role in constitutional interpretation. To illustrate this, I describe the most prominent conception of originalism—public meaning originalism. Then, I show that public meaning originalism’s process to ascertain the Constitution’s original meaning treats the Declaration as one source of original meaning, and that its importance as a source therefore depends on the empirical-historical question of whether the original meaning in fact did privilege it.

This leads me to my second main argument, based on history. I make three moves to show that the Declaration did not play a unique interpretive role. First, I describe how the Framers and Ratifiers did not use the Declaration as the unique interpretive key to constitutional interpretation. Second, I show that, because the Declaration was inconsistent with the Constitution’s text, it cannot be the interpretive key to the Constitution. Third, I explain that it was only after the Founding, during times of moral crisis, that Americans in various social movements turned to the Declaration to support their out-of-the-mainstream constitutional interpretations. This phenomenon shows that appeals to the Declaration are motived by a desire for political and social change extrinsic to the Constitution.

Third and jurisprudentially, I show that our current constitutional practice does not recognize the Declaration as playing a unique role in constitutional interpretation. I focus on the Constitution’s text, current legal practice, and Supreme Court practice.

RELATED:  As noted in a previous post, Mark Pulliam had an earlier essay in which he (among other things) argued against a special role for the Declaration in constitutional interpretation; Edward J. Ehler responds: The People’s Sovereignty Is the Foundation of Constitutional Law, arguing that "[t]here is not a single prominent American Founder—not Madison, Hamilton, Adams, Mason, Randolph, Wilson or any of a host of others—who did not believe that the Declaration served as the authoritative source of the Constitution’s authority. Miss this point and you cannot understand the original intent of the Constitution."


Bryan Garner on Textualism
Michael Ramsey

In the ABA Journal, Bryan Garner: Old-fashioned textualism is all about interpretation, not legislating from the bench.  From the introduction:

You’ve probably heard recently about the “Gorsuch brief”—a brief that makes closely analyzed textual arguments based on grammars and dictionaries—and about how progressive advocates are relying more and more on Scalia-style textualism. These subjects have been much in the news. You may also know that Justices Ruth Bader Ginsburg and Stephen G. Breyer typically analyze interpretive questions by focusing on four elements in this order: (1) text, (2) structure, (3) purpose and (4) legislative history. That technique was begun embryonically by Justice Robert H. Jackson and carried into mature development by Justice David Souter. As Justice Elena Kagan said famously a few years ago, “We’re all textualists now.”

While consequentialists think about ideal results (best policies for the future) and purposivists think about broad legislative purposes (what Congress had in mind), textualists consider the words actually adopted. As Justice Oliver Wendell Holmes declared in a 1930 opinion, “There is no warrant for seeking refined arguments to show that the statute does not mean what it says.”


This approach is old-fashioned. The conventional view has always been that to interpret is to do a finite number of things relating to understanding what words mean in their context. Some activities exceed its ambit: to expand, to twist, to contort, to stretch, to interpolate, to restrict, to bend, to make exceptions to, to ignore, to evade, to flout, to repeal, to nullify, to abrogate. Judges are often urged to engage in these activities, but they aren’t interpretation.

The 18th-century view, as expressed by the commentator John Raithby, was that “our laws ... have been framed ... by the suggestions of deliberative wisdom.” Although these laws may sometimes prove imperfect, “our judges ... are not at liberty to dispense with them, or to alter them.”

Another scholar of the period, Francis Sullivan, explained why he thought judges, “the dispensers of justice,” must “follow the strict letter of the positive laws; lest, under the pretense of explaining and extending them, the most valuable privileges of the people might be betrayed or rendered illusory.” In sum, departing from the enacted words is a stratagem that can be used for any possible political end...

(Via How Appealing).


Christopher Green: Justice Gorsuch and Moral Reality
Michael Ramsey

Christopher R. Green (University of Mississippi - School of Law) has posted Justice Gorsuch and Moral Reality (70 Alabama Law Review 635 (2019)) (33 pages)  on SSRN.  Here is the abstract:

Despite his advanced academic training in ethics, Justice Gorsuch has stoutly, repeatedly, and properly denied that officers today have any power to override the original meaning expressed in statutory or constitutional text in the name of contemporary moral considerations. However, moral reality can still be relevant to interpretation if we acknowledge—as we should—a gap between textually expressed meaning and the fact-dependent collection of tangible applications falling under that meaning. Moral reality can also be important as an empirical guide to original meaning to the extent that we attribute moral virtue to the Framers and as a consideration for when we should overrule precedents. This Essay considers what Justice Gorsuch’s first year and a half on the Court tells us about his understanding of the relationship between interpretation and moral considerations. His deep respect for tradition as an ethical guide frequently makes it difficult to tell whether he reads the Constitution as referring directly to tradition, right or wrong, or instead reads it to refer to moral reality, which he then uses tradition to fill out. Either way, Justice Gorsuch’s willingness to go his own way interpretively will render his methodological approach of lasting concern to our constitutional culture.

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


John Mikhail: James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws'
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws' (Georgetown Journal of Law & Public Policy, Vol. 17, No. 1, 2019) (66 pages) on SSRN.  Here is the abstract:

Many commentators have questioned whether the interpretation of the term “ex post facto laws” in Calder v. Bull, which restricted that term to retroactive criminal laws, is historically accurate. Most prominently, over seventy years ago Professor William Winslow Crosskey argued not only that this “criminal-only” reading of “ex post facto laws” departed from the original understanding, but also that Justices Chase, Iredell, and Paterson adopted that erroneous interpretation in order to assist James Wilson, who by 1798 had fled from his creditors and needed retroactive bankruptcy protection. Drawing on new evidence related to legal disputes involving three land companies with which Wilson was associated, which eventually gave rise to Hollingsworth v. Virginia, Fletcher v. Peck, and Johnson v. M’Intosh, this Article contends that Crosskey was likely correct about the original meaning of “ex post facto laws,” but likely mistaken about the Justices’ motivations in Calder. In fact, Wilson’s land speculation, conflicts of interest, and aggressive pursuit of his companies’ interests were probably a source of embarrassment to his fellow Justices. Nonetheless, there is a clear discrepancy between the construal of “ex post facto laws” in Calder and how that term was widely used in the founding era, which merits further investigation. A better historical understanding of these land disputes also raises new doubts about the reliability of the discussion of ex post facto laws in James Madison’s Notes of the Debates in the Federal Convention. 


Mark Pulliam’s Defense of Slaughterhouse: A Response
Mike Rappaport

After Mark Pulliam responded to my post, I replied with the post below

Mark Pulliam has graciously responded to my post on the Slaughterhouse Cases. As readers will remember, Pulliam argued that the Slaughterhouse Cases should continue to be followed out of fear of the mischief that would be produced by overruling it. I argued that the originalism requires us to follow the original meaning even if we are concerned about the consequences of following it for certain provisions.

I want to pursue this debate a bit longer. The point of debates is to clarify disagreement and move the parties closer. Hopefully, we can achieve one or both of these objectives.

Pulliam defends the Slaughterhouse Cases on a number of grounds. But I find it hard to sympathize. To me, the strongest argument for his position is the following. If one is seeking to overturn a precedent as inconsistent with the original meaning, then one ought to have some good notion of the original meaning of the relevant provision. If we do not, then we should not overturn the case.

While the strongest argument for his position, this argument is not inevitable. After all, there are various alternatives to Slaughterhouse: Kurt Lash’s view that the Privileges or Immunities Clause mainly incorporates the Bill of Rights, John Harrison’s view that the Clause prohibits arbitrary discrimination, Randy Barnett’s view that the Clause protects natural and other individual rights, and Chris Green’s view that the Clause protects individual common law rights that largely prevail throughout the country (with which I agree). I believe each of these views is superior to Slaughterhouse. So it is a bit strange to keep Slaughterhouse on the ground that no one of the competitors is accepted by everyone, even though all of these competitors are superior to Slaughterhouse. In other words, it would be odd to keep Slaughterhouse even though it is the worst interpretation of all of the theories.

The interesting thing here is that not all of these contending views would be uncongenial to Pulliam. Harrison’s view would allow him to avoid both incorporation of the Bill of Rights and protection of unenumerated common law rights. Lash’s view would allow him to mainly avoid unenumerated rights, although it would require him to accept incorporation. If I were Pulliam, I would adopt one of these views (if I became sincerely convinced it was correct).

But doing so would require that Pulliam read the recent literature on these issues and make an informed decision. That may not be how he wants to spend his time, although I would note that this literature is quite interesting. But if Pulliam does not read the literature, I think it becomes much more difficult for him to reject these positions as hopelessly conflicted. If he read it, he might conclude that one of the approaches—perhaps Harrison’s, which might be most congenial to him—is correct.

In the end, his position would be more convincing if he adopted one of these theories. He could defend the courts not protecting unenumerated rights based on a supported interpretation of the Constitution rather than based on a case regarded as wrong by virtually everyone. It is true that Robert Bork argued that the Amendment could not be understood, but we have come a long way since Bork looked at these matters. Pulliam could benefit from this scholarship.

Jeffrey Pojanowski: Neoclassical Administrative Law
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) has posted Neoclassical Administrative Law (Harvard Law Review, Vol. 133, 2019, forthcoming) (54 Pages) on SSRN.  Here is the abstract:

This article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, inclined to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists who would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critics of contemporary administrative law, it seeks to integrate those more formal commitments with the administrative state we have today—and will have for the foreseeable future.


Mark Pulliam and the Old Originalism
Mike Rappaport

I have been a little late in publishing some posts on Privileges or Immunities, so Mike Ramsey has reported on some responses to my posts (on the Liberty Law Blog) before I even published the posts here.   Today and tomorrow I will be publishing two posts that were early parts of the conversation.  Below is the post where I criticized Mark Pulliam for being an old originalist.  Mark responded here.  

Mark Pulliam, who is a frequent contributor to the Liberty Law site, has written a new essay at American Greatness, entitled “The Pernicious Notion of ‘Unenumerated Rights,’” that attacks judicial activism from an originalist perspective. Mark sets his sights on various deserving targets and I agree with many of his criticisms.

Here is a taste of the essay:

Many Americans properly scoff at the idea that there are constitutional rights to things that are not actually set forth in the Constitution, such as the “right to a climate system capable of sustaining human life,” as Judge Ann Aiken, appointed by President Bill Clinton, ruled in Juliana. But once judges free themselves of the constraints of constitutional text, anything is possible.

But despite my agreement with some of the essay, I do take exception with the overall theory underlying it. Pulliam writes as an originalist and criticizes others as faux originalists. While I agree that we should be originalists and that some people are faux originalists, I don’t agree with Pulliam’s understanding of the idea. In fact, some people might regard Pulliam’s originalism as the false one.

One problem with Pulliam’s notion is that he builds constraint into originalism. While there are many versions of new originalism these days, Pulliam’s is a clear example of the old originalism. The old originalism rejects interpretations of the Constitution that it regards as conferring too much discretion on judges. But this is problematic and not real originalism.

The old originalism says: generally interpret the Constitution in accord with its original meaning, but do not follow the original meaning when it would confer excessive discretion on judges—that is, discretion that might allow “nonoriginalist” or “willful” judges to import their values into the Constitution. We can all understand why an originalist would be suspicious of such excessive discretion, especially in a world where such importation regularly occurs.

But that suspicion of excessive discretion, however reasonable, cannot justify an originalist ignoring the original meaning. That suspicion is a moral principle. If a “non-excessive-discretion principle” is not in the Constitution, then judges have no more right to follow it than they do to follow moral rights that are also not in the Constitution.

Let me take an example. The Slaughterhouse Cases misinterpreted the Privileges or Immunities Clause of the Fourteenth Amendment. Virtually every legal scholar, no matter of what viewpoint, believes the majority opinion in this case was mistaken. But Pulliam writes that the justices should not overturn the case because it would give willful judges the opportunity to make up rights.

That is not originalism. The Slaughterhouse Cases also raise another issue relevant to Pulliam’s essay. He talks of “enumerated” and “unenumerated” rights. That is an important distinction, but we should not ignore that the key distinction for originalism is something else—between rights that are protected by the Constitution and those that are not. The Constitution can protect rights without those rights being enumerated.

For example, the Constitution says “No State shall . . . abridge the privileges or immunities of citizens of the United States.” But the Constitution does not enumerate what those privileges or immunities are. Some of them may be enumerated by the Bill of Rights (and thus allow incorporation which Pulliam decries), but I believe that the privileges and immunities of citizens extended far beyond the Bill. Judges should protect those rights, even though they are not enumerated, because they are expressly protected by the Constitution.

If one wants to treat Privileges or Immunities Clause as an inkblot, one can certainly do it. The Supreme Court has largely done that for 150 years. But that ain’t originalism.

Devin Watkins Responds to Kurt Lash on Privileges or Immunities
Michael Ramsey

At Law and Liberty, Devin Watkins:  The Unenumerated Rights of the Privileges or Immunities Clause.  From the introduction:

Does the Fourteenth Amendment’s Privileges or Immunities Clause include unenumerated rights, like the right to earn an honest living or make contracts? Professor Kurt Lash argued in a recent article that it does not. But that seems to be contradicted by the textual and historical foundation of the clause.

To understand the meaning of the Privileges or Immunities Clause in the Fourteenth Amendment, requires understanding the meaning of Article IV’s Privileges and Immunities Clause, which came first. We must start with the definition of each word according to the dictionaries of the era.[1] According to the relevant definitions in those dictionaries:

privilege” meant some particular advantage or right not universal

“immunity” meant freedom (in a more universal sense).

In other words, a “privilege” refers to the positive rights granted by government to some individuals, while an “immunity” referred to the general or universal rights of freedom for individuals. Together, they meant all rights. This has been demonstrated in many other contemporaneous contexts by Eric Claeys.[2]

While Article IV’s Privileges and Immunities Clause is stated in the affirmative (of what citizens are entitled to) and the Fourteenth Amendment’s Privileges or Immunities Clause is stated in the negative (of what cannot be taken away), what’s significant is that other parts of the text are different.

The Privileges or Immunities Clause speaks of the right of “Citizens of each State” being entitled to the rights “in the several States.” The citizen of one state cannot be denied by another state the same rights that state recognizes for its own citizens.

Meanwhile, the Privileges or Immunities Clause protects the rights “of citizens of the United States.” A state cannot refuse to recognize the rights recognized by the federal government. If there is a right against the federal government’s power, that same protection is applied against the state’s power. . . .


Will Foster on Eric Segall on First Amendment Originalism
Michael Ramsey

Will Foster comments: 
I noticed you commented on Eric Segall's positive review of Jud Campbell's natural rights work on your blog. Admittedly, I have not yet had time to do more than skim Prof. Campbell's work, but I am already very skeptical of his conclusions (largely for the reasons you mention), thoroughly-supported though they may be. 
One historical document that I think supports your skepticism: James Madison's speech introducing the Bill of Rights (I am not sure if Prof. Campbell mentions it in his articles). Due to length I added some ellipses but I believe this excerpt accurately represents the full quote; emphasis is mine:

The first of these amendments, relates to what may be called a bill of rights ... I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great-Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source, were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite ... 

But altho' the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find that altho' some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least controul; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

Given all this discussion of protecting the minority from the majority, preventing the people from legislative abuses of power, etc., I find it very hard to believe Campbell's claim that the protection of natural rights was thought to lie entirely or almost entirely with the legislature -- the very body Madison was afraid of. Of course, Madison was not the only person who spoke on this topic in the Founding era. Maybe his views were idiosyncratic (although I somewhat doubt it). Unlike Prof. Campbell, I haven't done very much research on the topic.


Mark Pulliam Responds to Originalist Critics
Michael Ramsey

Originalist commentator Mark Pulliam has been drawing some originalist criticisms.  Here are his responses: 

At Misrule of Law, Making Constitutional Law Great Again (responding to Edward Ehler, Don’t Read the Constitution the Way Robert Bork Did).  From the introduction:

Claremont-trained political philosophers represent some of the strongest voices in conservative intellectual circles, but many of them share a flawed view of the Constitution, expressed vigorously—and sometimes splenetically—by the late Harry V. Jaffa.  Edward Erler’s recent essay, “Don’t Read the Constitution the Way Robert Bork Did,” channels both Jaffa’s truculent spirit and the doctrinaire position of West Coast Straussians, complete with familiar—albeit irrelevant–references to Abraham Lincoln and the Declaration of Independence. Unfortunately, Erler’s essay illustrates why the Left’s conception of constitutional law is ascendant while conservatives continue to dither: Unlike progressives, discordant conservatives have been largely ineffective in articulating—let alone advancing—a coherent vision of constitutional law. 

As I explained at greater length elsewhere (here and here), conservatives are all over the map when it comes to constitutional interpretation, and spend as much time in internecine feuds as they do in battle with liberal activists. Jaffa notoriously picked fights with respected conservative legal figures such as Robert Bork and Antonin Scalia, and espoused fanciful theories that have never been embraced by mainstream originalists (and almost certainly will never be adopted by a majority of Supreme Court justices).

And at Law and Liberty: The Many Flavors of “Originalism” (responding to Mike Rappaport, Mark Pulliam and the Old Originalism).  From the introduction:

Commenting on a piece I wrote for American Greatness, my colleague Mike Rappaport agrees with me in certain respects but chides me for being a proponent of “the old originalism,” which he regards as “false,” “problematic,” and “not real originalism.” Rappaport considers himself a “new originalist,” which means that he would follow the original meaning of the Constitution wherever it takes him, even if doing so would create more opportunities for “willful” (or non-originalist) judges to make up rights (as they often do). I accept Rappaport’s criticism in the spirit in which was given, and concede that my piece cited the “privileges or immunities” clause of the 14th Amendment, moribund since the Slaughter-House Cases (1873), as a provision that the Supreme Court should not resuscitate, as many legal scholars now advocate, in part because of the jurisprudential mischief it would likely inspire.

Does that make me a “faux” originalist? I confess to favor leaving a 150-year old precedent in place, despite considerable sentiment that it was wrongly decided—although critics differ greatly in their reasoning—but contend that my position is consistent with “real” originalism. My explanation follows a brief digression on the current state of originalism.

And in conclusion:

Accordingly, my position that the Slaughter-House Cases should be left alone is based on a combination of reasons: I agree with Bork, et al. that the majority was correct, or at least that the meaning of “privileges or immunities” is unclear enough to warrant a restrained interpretation; I strongly disagree with the notion of unenumerated rights (not because it will lead to mischief, but because it is mischief); and, at this point, the precedent is so old and well-established (even if not universally accepted) that, pursuant to stare decisis, it would undermine public confidence in the Court to overrule it. If that disqualifies me as a “new originalist,” so be it.

The original goal of originalism, it must be remembered, was to restore constitutional law to the task of interpreting the Constitution. As Bork famously remarked in 1982, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” Hewing to the constitutional text necessarily grounds—or “constrains”—judges, which is the whole point of having a written constitution. It is a fallacy to assume that “constraint” is incompatible with originalism.


Kurt Lash: The Enumerated Rights Reading of the Privileges or Immunities Clause
Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted The Enumerated Rights Reading of the Privileges or Immunities Clause: A Response to Randy E. Barnett and Evan D. Bernick's 'The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment' (106 Pages).  Here is the abstract:

In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York. In a recent article, Randy Barnett and Evan Bernick canvass more than two decades of my historical work on the Fourteenth Amendment and claim that I have failed to present a persuasive argument in favor of what they call the “Enumerated Rights Only” reading of the Privileges or Immunities Clause. In particular, they argue that (1) antebellum evidence suggests that the term “privileges and immunities of citizens of the United States” was understood to include unenumerated rights, (2) the man who drafted the Privileges or Immunities Clause, John Bingham, described the clause as protecting unenumerated absolute rights, (3) the debates of the Thirty-Ninth Congress suggest that most members would have understood the Privileges or Immunities Clause as transforming the relative rights of Article IV, Section 2 (the Comity Clause) into absolute unenumerated rights, (4) Reconstruction-era references to the “Bill of Rights” as representing the rights of national citizenship are unreliable due to that fact that there was no fixed meaning to the term at that time and (5) because my account fails to explain how the Privileges or Immunities Clause authorized the 1866 Civil Rights Act, it cannot stand as a persuasive reading of the Clause. 

In this article, I respond to all of these arguments and synthesize the evidence I have gathered over the years which I believe supports the Enumerated Rights reading of the Privileges or Immunities Clause. In brief: The only antebellum voices describing the rights of national citizenship as including unenumerated absolute rights were proponents of slavery who insisted they had an unenumerated “right” to own slaves. The abolitionist voices most likely to influence Reconstruction Republicans uniformly described the rights of national citizenship as enumerated constitutional rights. The most significant of these Republicans, John Bingham, always described the privileges or immunities of citizens of the United States as involving constitutionally enumerated rights, and never as unenumerated absolute rights. Bingham’s colleagues in the Thirty-Ninth Congress were well-informed about, and shared a consensus view of, Article IV, Section 2 and cases like Corfield v. Coryell as protecting nothing more than the relative rights of equal treatment in regard to a limited set of “fundamental” rights. Thus, when Jacob Howard named Corfield and the enumerated rights of Article IV as “privileges or immunities of citizens of the United States,” he and his audience understood the limited relative nature of those rights. On the other hand, when members like Bingham and Howard referred to the federal Bill of Rights as privileges and immunities of citizens of the United States, listeners in and outside of Congress would have understood this to be a reference to enumerated constitutional rights. In particular, this is how the public would have understood Bingham’s insistence that he sought to enforce the Bill of Rights against the states and nothing more. Finally, there is no need to force a reading onto the Privileges or Immunities Clause that authorizes the Civil Rights Act. As John Bingham explained, the Civil Rights Act represented an effort to enforce the equal right not to be deprived of life, liberty or property without due process of law—rights covered by the final two clauses of Section One.

(See also my post from yesterday and Professor Lash's recent post at Law and Liberty.)


Apodaca, Ramos, Incorporation and Kurt Lash
Michael Ramsey

At Josh Blackman's suggestion, I took a closer look at Apodaca v. Oregon, the 1972 Supreme Court case that found the unanimous jury requirement not to apply to the states, even though the Court had previously found the Sixth Amendment to apply such a rule to the federal government.  (As noted here, the Supreme Court recently agreed to revisit Apodaca in Ramos v. Louisiana).  Professor Blackman also observed that all of the Justices in Apodaca found the unanimous jury requirement to be deeply rooted in U.S. and English history but five of them still managed to find it inapplicable to the states.

So I took a closer look and on further review, I agree: wow, what an embarrassment.  Justice White's plurality (for himself, Burger, Blackman and Rehnquist) acknowledges that the unanimous jury is a long-standing tradition, but in an expressly non-originalist move finds that "Our inquiry must focus upon the function served by the jury in contemporary society."  From that starting point, the plurality concludes that the protected "interest of the defendant [is] in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him" and declares (with essentially no analysis) that this interest "is equally well served" by a non-unanimous jury.  (It seems painfully obvious to me -- even granting that the defendant's interest is properly identified -- that the judgment of the defendant's peers is much more effectively interposed with a unanimity requirement than without one.  But in any event, if the Constitution adopted unanimity as part of its jury requirement, it shouldn't be for Justice White to second-guess that decision, at least not without very powerful reasons.)

Justice Powell's concurrence, providing the fifth vote, at least has a structural argument behind it -- that the Court should not micromanage state criminal procedure but instead let states experiment with different approaches.  That's fine, as long as the Constitution doesn't say otherwise.  But if one accepts incorporation, the point of that aspect of the Fourteenth Amendment was exactly to preempt some state approaches and ensure a national minimum of rights corresponding to the rights held against the federal government.

And Justice Douglas, of all people, wrote a devastatingly formalist dissent.  I predict Apodaca gets overruled 9-0.

From an originalist academic perspective, the bigger question is whether incorporation has adequate originalist foundations.  On this point Kurt Lash (Richmond) has a post at Law and Liberty (thanks to Mark Pulliam for the pointer) and a new article on SSRN.  From the post:

... Although the Supreme Court has been wrong to enforce [the incorporation] doctrine under the Due Process Clause, it would be entirely right to do so under the Privileges or Immunities Clause. Further, doing so would not require reversing Slaughterhouse or open the door to judicial construction of unenumerated rights.

The man who drafted the Privileges or Immunities Clause, John Bingham, could not have been clearer about his desire to enforce the Bill of Rights against the States. On February 28, 1866, when John Bingham submitted his first draft of the Privileges or Immunities Clause, he declared, “[t]he proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to-day. It “hath that extent—no more.” On March 9th, Bingham again declared that “the enforcement of the bill of rights [against the states] is the want of the Republic.” On May 10, following the submission of Bingham’s final draft, once again Bingham declared “There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply.” The Privileges or Immunities Clause would finally allow congress to enforce provisions like the eighth amendment’s protection against cruel and unusual punishments. Once again, Bingham assured his colleagues, “That is the extent that it hath, no more.”  Finally, in 1871, Bingham explained:

Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.  . . . They secured  . . . all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States. . . .

Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution.

I will link to Professor Lash's article separately, as it deserves a separate post.  The key point, though, is that full incorporation, or something close to it, has solid originalist foundations.  I think the modern center-right Justices -- unlike the center-right Justices of the Apodaca era -- are influenced by this view, as well as by the formalist sense that the Court should not be picking on policy grounds which Bill of Rights rights are incorporated and which aren't.  So again, I think Apodaca's days are numbered.  And originalists should be happy.

UPDATE:  Will Baude comments at Volokh Conspiracy: Unanimous Juries and Incorporation of the Bill of Rights.  

I assume that it is not a coincidence that the cert grant [in Ramos] happened shortly after the Court's decision in Timbs v. Indiana to unanimously incorporate the Excessive Fines Clause against the states. At oral argument in Timbs, Justice Gorsuch seemed to suggest that complete incorporation of the bill of rights was at this point a foregone conclusion. But in the decision in Timbs it became clear that the Justices may not have complete agreement on a theory of incorporation, with the majority extending the Court's current substantive due process precedents, while Thomas takes the more historically accurate path of applying the Privileges or Immunities Clause. As Justice Gorsuch noted in a concurring opinion, in Timbs, nothing turned on the Court's theory of incorporation. And that is probably true in Ramos too. But at some point, it might. ...


Anita Krishnakumar: Backdoor Purposivism
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) has posted Backdoor Purposivism (forthcoming, Duke Law Journal, Vol. 69, 2020) (67 pages) on SSRN.  Here is the abstract: 

It has become standard, among statutory interpretation commentators, to declare that “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court—including those considered purposivists—pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined compared to its heydey in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute—or, alternately, using purpose as a threshold consideration in determining whether a statute is ambiguous in the first place.

This Article breaks from the conventional “purposivism is dead or dying” wisdom in two important ways. First, it argues, based on empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not. Second, and perhaps more importantly, the Court’s textualist Justices quietly have been engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress in many cases. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent. The Article suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest—but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text-focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit, in order to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.

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

Related:  Michael Dorf's recent post noted here, Did Jam v. IFC Kill Purposivism?