Randy Barnett on the Declaration of Independence
Michael Ramsey

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

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


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


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


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

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

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

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

Via Larry Solum at Legal Theory Blog, who comments:

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


Eric Segall: Is Living Constitutionalism our Law?
Michael Ramsey

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

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

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

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

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

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

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

And from the core of the argument:

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

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

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

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

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


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

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

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

Other articles in this very valuable series by Professor Maggs:

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

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

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

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

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

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


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

I think maybe they are.

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

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

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

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

And repeating this point later:

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

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

And expanding on the political philosophy behind this structure:

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

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

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

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

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

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

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

And in addition:

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

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

Thus, this key summary:

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

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

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

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

And later:

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

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

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

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

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


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

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

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

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


Habeas Corpus Originalism in DHS v. Thuraissigiam
Michael Ramsey

In Department of Homeland Security v. Thuraissigiam, decided Thursday, the Supreme Court (Per Justice Alito, writing for himself, Roberts, Thomas, Gorsuch and Kavanaugh) held that the writ of habeas corpus didn't protect Mr. Thuraissigiam, who sought to challenge DHS's rejection of his asylum claim.  Josh Blackman comments here

The majority required the Thuraissigiam to identify a specific case that supports his claim for relief. A close analogy is not enough.

Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here. The dissent instead contends that "the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent," and then discusses cases that are not even close to this one.

In dissent, Justice Sotomayor writes that Boumediene does not require such a close historical fit:

But as the Court implicitly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never demanded the kind of precise factual match with pre-1789 case law that today's Court demands.

At Dorf on Law, Michael Dorf is critical of Justice Alito's originalism: Justice Alito's Opinion in Dep't of Homeland Security v. Thuraissigiam Reveals Why "Custody" in the Narrow Sense Should Not Be a Requirement for Habeas.  From the core of the argument:

Much of the disagreement between Justices Alito and Sotomayor looks like a debate over "clearly established law" for purposes of overcoming qualified immunity or the characterization of a "new rule" for purposes of unavailability in the context of habeas as a collateral remedy for state prisoners. Justice Alito says that Thuraissigiam's lawyers failed to produce any cases from the relevant period that are sufficiently like his to serve as precedent; Justice Sotomayor responds that an exactly analogous case is unnecessary. I agree with Justice Sotomayor on this point, but that's not just because I take a broader view of precedent than the Court does in those other contexts too. It's also because Justice Alito's argument should fail on its own premises. Originalism--its champions have been telling us for a quarter century or more now--seeks the original public meaning of the constitutional text. The absence of an exactly analogous or even somewhat analogous case might have some bearing on the expectations or intentions of the framing generation, although then again it might not, but it certainly would not limit the application of the constitutional text to new or even unanticipated circumstances. Here as in many other contexts, originalists talk the original-public-meaning talk when defending originalism against theoretical critique but walk the concrete-intentions-and-expectations walk when it comes time to decide cases.
I agree that there shouldn't be a requirement of an exactly analogous case, for the reasons Professor Dorf says.  But Professor Dorf (per the title of his post) wants to say that "'Custody' in the Narrow Sense Should Not Be a Requirement for Habeas." So it seems to me that the burden is on him (and thus the claimant) to show that there is some historical foundation for the habeas writ applying beyond "custody in the narrow sense."  And I think Justice Alito's claim is that there is no pre-1789 evidence of habeas applying beyond "custody n the narrow sense."  Assuming Justice Alito is right on this point (and Professor Dorf provides no reason to think otherwise), then Justice Alito's originalism seems methodologically right to me.  It's correct that "[o]riginalism ... seeks the original public meaning of the constitutional text." But the constitutional text here is "the writ of habeas corpus." And if the "writ of habeas corpus" was never applied except to challenge wrongful custody, that seems pretty decisive to me that  "the original meaning of the constitutional test" is that "the writ of habeas corpus" is a procedure to challenge wrongful custody and nothing else (as Justice Alito says).  I see no originalist methodology problem here.


Jack Balkin: The Great Debate in the Conservative Legal Movement
Michael Ramsey

At Balkinization, Jack Balkin: The Great Debate in the Conservative Legal Movement.  From the introduction:

There is a great ferment among conservative legal intellectuals these days. This post is summary of what I think is happening, written from the perspective of an outsider. Although I am an originalist, I am also a political liberal. But I have many friends in the conservative legal movement and because of my scholarly agenda, I watch developments in the movement with great interest.

Since the second half of the 20th century, American conservatism has been a fusion of different approaches, including libertarians, small government conservatives, business interests, national security hawks, social conservatives, religious conservatives and paleo-conservative or "Old Right" nationalists who tended to be anti-immigration and isolationist. People often fell into multiple camps, and their ideas sometimes shifted over time.

The conservative legal movement arose of of this fusion. Together and separately, these various groups in the conservative constellation sought and pushed for a jurisprudence that would promote their values and show why their political opponents' legal views were incorrect. This is hardly surprising. Every jurisprudential movement that I can think of has been associated with a politics. And the very idea of a conservative legal movement should be a tip-off that the goal of the movement was to promote... well, conservatism.

By the 1980s or so, originalism had become the lingua franca of the conservative legal movement, with textualism (especially in statutory construction) following shortly thereafter. One didn't have to be either an originalist or a textualist to be a conservative legal intellectual, but the language of originalism and textualism was a convenient shorthand to describe what conservatives were for (and, equally important, what they opposed). Over the years, conservative judges and legal intellectuals developed jurisprudential theories designed to promote and apply both originalism and textualism.


Each part of the conservative movement, in other words, saw something to gain from originalism and textualism. The logic of originalism and the logic of the different forms of conservatism (more or less) converged.

Several things happened in the past twenty years that have upset those assumptions and created tensions within the conservative legal movement. Today's intellectual ferment is the result of those changes. ...


Jennifer Mascott: Early Customs Laws and Delegation
Michael Ramsey

Jennifer Mascott (George Mason University - Antonin Scalia Law School, Faculty) has posted Early Customs Laws and Delegation (George Washington Law Review, Vol. 87, No. 6, 2020) (64 pages) on SSRN. Here is the abstract:

This past Term the Supreme Court reexamined the nondelegation doctrine, with several justices concluding that in the proper case, the Court should consider significantly strengthening the doctrine in its contemporary form. Adherents to the doctrine question whether Congress has developed a practice of improperly delegating to administrative agencies the legislative power that Congress alone must exercise under the Vesting Clause of Article I of the Constitution. Many scholars have debated the extent of the historical or textual basis for the doctrine. Instead, this Article examines interactions between executive and legislative actors during the first congressional debates on the Impost, Tonnage, Registration, and Collection of Duties Acts. In addition to revealing Congress’s central role early on, this story shows the relevance of state and congressional district interests to the legislative agreements concerning customs laws. The rich depth of these varied interests suggests that nondelegation limitations might not be inherent in the Vesting Clause alone, but may be innate to the federal government’s tripartite and federalist structural design itself.

The Constitution carefully provided significant protection for state interests through diverse representation schemes in the House and the Senate. Beyond the textual limitation of exclusive vesting of the legislative power in Congress, separation of powers principles help ensure all people’s interests are represented in a way that would not be possible via a singular, centralized administrative entity. The acts of such administrative entities are accountable, if at all, to just one centralized elected official, not to multiple elected decisionmakers representing states and regional interests. Consequently, enforcement of relatively strict nondelegation principles may be critical to preserving the structural constitutional principle that the federal government must reflect the interests of both individual members of the electorate as well as the states and regional electoral districts.


Zachary Price: Congressional Authority Over Military Offices
Michael Ramsey

Zachary Price (University of California Hastings College of the Law) has posted Congressional Authority Over Military Offices (Texas Law Review, forthcoming) (71 pages) on SSRN.  Here is the abstract:

While scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, recent scholarship has largely neglected parallel questions regarding military office-holding. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President as Commander in Chief holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers.

This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the constitutional text and structure, read in light of longstanding historical practice, give Congress extensive power to structure offices, chains of command, and disciplinary mechanisms through which the President’s authority is exercised. In particular, just as in the administrative context, Congress may vest particular authorities—authority to launch nuclear weapons or a cyber operation, for example, or command over particular units—in particular statutorily created offices. In addition, although the Constitution affords Presidents removal authority as a default disciplinary mechanism, Congress may supplant and limit this authority by replacing it with alternative disciplinary mechanisms, such as criminal penalties for disobeying lawful orders.

By defining duties, command relationships, and disciplinary mechanisms in this way, Congress may establish structures of executive branch accountability that promote key values, protect military professionalism, and even encourage or discourage particular results, all without infringing upon the President’s ultimate authority to direct the nation’s armed forces. These conclusions are relevant pending Supreme Court cases regarding military discipline and presidential removal authority. They also bear directly on pending legislative proposals to vest authority over cyber weapons, force withdrawals, or nuclear weapons in officers other than the President. From a broader perspective, they shed new light on separation-of-powers debates over the “unitary” executive branch, conventions of governmental behavior, the civil service’s constitutionality, and Reconstruction’s historical importance.


Further Programming Note
Michael Ramsey

I'm back.  All's well.  I will resume posting tomorrow morning.


Programming Note
Michael Ramsey

I will be taking a brief hiatus from blogging for personal reasons starting tomorrow.  I hope to return shortly.

John Stinneford: Is Solitary Confinement a Punishment?
Michael Ramsey

John F. Stinneford (University of Florida Levin College of Law) has posted Is Solitary Confinement a Punishment? (Northwestern University Law Review, Vol. 115, 2020) (29 pages) on SSRN.  Here is abstract: 

Nulla poena sine lege — no punishment without law — is one of the oldest and most universally accepted principles of English and American law. Today, thousands of American prisoners are placed in long-term solitary confinement despite the fact that such placement is authorized neither by penal statute nor by judicial sentence. Is solitary confinement “punishment without law,” or is it a mere exercise of administrative discretion?

In 1890, in a case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades. Part I of the Essay that follows describes the Supreme Court’s existing case law governing prison officials’ discretion to impose harsher conditions on inmates. Part II analyzes English and American constitutional history relating to the need to limit discretion over punishment, the danger of executive discretion in the infliction of punishment, and the distillation of a standard relevant to determining whether a given government action is a punishment. Finally, Part III checks the accuracy of the Supreme Court’s conclusion in Medley that the harshness of solitary confinement makes it a new punishment by examining historical and modern empirical data relating to the effects of solitary confinement, and concludes that the Medley court was correct.

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


Textualism in the Bostock v. Clayton County Decision: Two Views
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Textualism and Purposivism in Today's Supreme Court Decision on Discrimination Against Gays, Lesbians, and Transsexuals.  From the introduction:

[The] Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 forbids employment discrimination against gays, lesbians, and transsexuals is well-justified on the basis of textualism—a theory of legal interpretation usually associated with conservatives. By contrast, it is less clearly right from the standpoint of purposivism, more often associated with liberals, such as Supreme Court Justice Stephen Breyer. The Court's opinion in Bostock v. Clayton County was written by Justice Neil Gorsuch, a conservative known for his adherence to  textualism and joined by four liberal justices, as well as the conservative Chief Justice John Roberts. Three conservative justices dissented.

The relevant text of Title VII states that it is "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

Justice Gorsuch's majority opinion effectively explains why discrimination on the basis of sexual orientation qualifies as discrimination "because of…sex" under the plain text of the law:

From the ordinary public meaning of the statute's language at the time of the law's adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn't matter if other factors besides the plaintiff 's sex contributed to the decision. And it doesn't matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred.

The statute's message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague….

At NRO Bench Memos, Ed Whelan: A ‘Pirate Ship’ Sailing under a ‘Textualist Flag’.  From the introduction:

In his dissent [in Bostock], Alito memorably likens Gorsuch’s majority opinion to a “pirate ship”:

It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

As someone who had much higher expectations for Gorsuch (and for the Chief Justice), I’m sorry to say that I completely agree with Alito. In this post, I will highlight some of the reasons why. Let me first acknowledge, though, that I do not view the path to the correct statutory answer as a simple one. It requires care to avoid some pitfalls.

1. Gorsuch’s majority opinion “proceed[s] on the assumption that ‘sex’ … refer[s] only to biological distinctions between male and female” (Majority at 5), but contends that “homosexuality and transgender status are inextricably bound up with sex”: “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” By his account, if an employer is okay that a female employee is attracted to men, that employer is discriminating on the basis of sex if he penalizes a male employee for being attracted to men. Ditto if the employer retains a self-identifying female “who was identified as female at birth” but fires a person who now identifies as female “who was identified as a male at birth.” (Majority at 10-11.)

As a technical matter, Alito points out that it is indeed “quite possible for an employer to discriminate on those grounds [i.e., sexual orientation or gender identity] without taking the sex of an individual applicant or employee into account”—e.g., through a blanket policy against hiring gays, lesbian, or transgender individuals. Indeed, he observes, employees’ counsel conceded the point at oral argument. (Dissent at 8-9.)


Jed Shugerman on the Imaginary Unitary Executive
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted two new papers (or, Parts I and II of one paper) on SSRN: The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) (61 pages) and The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II) (52 pages). Here is the abstract:

Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions:

1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. Madison's switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity, and the House debates show the presidentialist/unitary view was held by only one third of the House...

2) …and a Senator’s diary indicates the Senate sponsors, in order to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A comment by a House member who supported the presidentialist view hinted at this strategy on the day of the pivotal vote.

3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.”

4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy.

5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate.

6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years.

7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power.

For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability.

Without having yet read the whole paper, I would only say quickly that the core of the unitary executive theory is that the President has removal power, not necessarily that the President has exclusive removal power.  So I'm not sure I see that point (6) above is "[m]ost problematic" (or even really problematic at all) for the unitary theory.  The process described does seem of questionable constitutionality, but that is because of the impeachment clause, not the executive power clause.


More Utah Originalism from Justice Thomas Lee
Michael Ramsey

From the Utah Supreme Court's unanimous decision in Mitchell v. Roberts (June 11. 2020), per Associate Chief Justice Thomas Lee: 

We would thus uphold the legislature’s decision if the question went merely to the reasonableness of its policy judgment. But that is not the question presented for our review. We are asked instead to interpret and apply the terms of the Utah Constitution (in particular, the Due Process Clause). We take a solemn oath to uphold that document—as ratified by the people who established it as the charter for our government, and as they understood it at the time of its framing. That understanding is controlling.

The original meaning of the constitution binds us as a matter of the rule of law. Its restraint on our power cannot depend on whether we agree with its current application on policy grounds. Such a commitment to originalism would be no commitment at all. It would be a smokescreen for the outcomes that we prefer.

Our laws are written down for a reason. And a key reason is to establish clear, fixed limits that the public may rely on—unless and until the law is repealed or amended by established procedures for doing so. The people of Utah retain the power to amend the Utah Constitution to alter the legislature’s authority in this area if they see fit. But the document as it stands (and as originally understood) forecloses the legislature’s power to enact legislation that retroactively vitiates a ripened statute of limitations defense.

And from later in the opinion:

In the latter part of the nineteenth century the principle of due process was viewed at least in part through the lens of the separation of powers and the concept of vested rights. Due process thus flavored the original understanding of the “legislative power” throughout the country and specifically in Utah. And the original understanding of the ratifying public dictates our answer to the questions presented in this case.

In the era of the framing of the Utah Constitution, the public understood the principle of “due process,” at least in part, as a matter relegating certain functions to the courts and not the legislature. Nathan S. Chapman & Michael W. McConnell, Due Process As Separation of Powers, 121 YALE L.J. 1672, 1781–82 (2012). The legislature was viewed as prohibited from exercising judicial functions—in interpreting and applying the law to the disposition of a case in which a party’s rights or property were in dispute. “This meant the legislature could not retrospectively divest a person of vested rights that had been lawfully acquired under the rules in place at the time.” Id. at 1782. The legislature “could enact general laws for the future, including the rules for acquisition and use of property, but [it] could not assume the ‘judicial’ power of deciding individual cases.” Id. Retroactive divestment statutes were viewed as judicial in nature (in the nature of “deciding individual cases”) because these laws were backward looking and operated to deprive individuals of rights and property “acquired under the rules in place at the time” of acquisition. Id. at 1782; id. at 1738 (“[C]ourts invalidated legislative acts to protect vested rights because the acts were quasi-judicial ‘sentences’ rather than genuine ‘laws.’”). Thus, valid legislative acts, in contrast to retroactive divestment statutes, stated the law going forward rather than “determin[ing] specific applications of law or . . . punish[ing] past acts”—functions relegated to the judiciary.14 Id. at 1719. Because divestment statutes operated to confiscate or vitiate previously vested rights, the nineteenth-century public viewed these laws as “judicial decrees in disguise.” Nathan N. Frost et al., Courts over Constitutions Revisited: Unwritten Constitutionalism in the States, 2004 UTAH L. REV. 333, 382 (2004) (citation omitted). And the public viewed such legislative encroachment into the domain of the judiciary as unconstitutional both as a matter of the principle of separation of powers itself and under the due process clause, which was understood as policing the division of powers between coordinate branches of government.

(Via How Appealing.)


Robert Pushaw: Comparing Literary and Biblical Hermeneutics to Constitutional and Statutory Interpretation
Michael Ramsey

Robert J. Pushaw (Pepperdine University - School of Law) has posted Comparing Literary and Biblical Hermeneutics to Constitutional and Statutory Interpretation (Pepperdine Law Review, Vol. 47, No. 2, 2020) (30 pages) on SSRN.  Here is the abstract: 

Interpreters determine the meaning of language. To interpret literary and biblical texts, scholars have developed detailed rules, methods, and theories of human understanding. This branch of knowledge, “hermeneutics,” features three basic approaches. First, “textualists” treat words as directly conveying their ordinary meaning to a competent reader today. Second, “contextualists” maintain that verbal meaning depends on generally shared linguistic conventions in the particular historical and cultural environment of the author—and that therefore translations or commentaries are necessary to make the writing intelligible to a modern reader. Third, “hermeneutic circle” scholars argue that texts have no objective meaning. Rather, a person’s subjective perspectives and norms affect his or her understanding of a text, which then generates new meanings that in turn may influence future readers. These three methodologies have parallels in the legal field. Most importantly, judges and scholars have interpreted the United States Constitution by employing (1) textualism, (2) originalism—discerning the meaning of constitutional provisions in historical context, or (3) subjective “living constitutionalism.” Similarly, federal statutes have been analyzed by applying textualism, contextbased pragmatism, or freewheeling “dynamic interpretation.” In this Essay, I will begin by summarizing the three main approaches to literary and biblical hermeneutics. I will then explore their analogues in federal constitutional and statutory interpretation.


Josh Blackman & Seth Barrett Tillman on Territorial Officers
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman:  The PROMESA Board Members Are Not "Officers of the United States." So What Are They?  From the introduction:

Recently, the Supreme Court decided Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC. This case considered the status of members of the Financial Oversight and Management Board for Puerto Rico, who are appointed by the President without the Senate's advice and consent. These positions were created by The Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA).

All nine Justices agreed that the appointment of these board members is not subject to the strictures of the Appointments Clause: that is, appointment by the President, with advice-and-consent by the Senate. All nine Justices also agreed that these board members are not "officers of the United States." However, the Justices parted company on the next question: what precisely are the PROMESA board members? The majority opinion by Justice Breyer punts on this question. Justice Thomas's concurrence hints at the answer. And Justice Sotomayor's concurrence suggests these board members occupy some other type of position in a "zone of twilight." This case illustrates that the precise characterization of federal positions is important. We cannot simply presume that the Constitution indiscriminately refers to different types of "offices" and "officers." Our taxonomy provides a better answer: Article IV Territorial Officers Hold "Office[s] under the Authority of the United States," and are bound by the Sinecure Clause.

And from later on:

Article IV territorial officers are not "officers of the United States." They are not appointed pursuant to the Appointments Clause. Moreover, we think these territorial officers do not hold "office . . . under the United States." These positions exist outside the three branches of the federal government. Justice Thomas's concurrence alludes to this point in the passage we quoted above. According to Justice Thomas, the power to authorize territorial positions comes from Article IV; therefore such positions are not within the three branches of government. But there is another phrase in the Constitution that provides a more natural fit for Article IV territorial officers.

The Ineligibility Clause, also known as the Sinecure Clause, states, "[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time. . . ."  This Clause is the only provision in the Constitution that uses the phrase "civil Office under the Authority of the United States." Who holds such an office? In our view the phrase "civil Office under the Authority of the United States" encompasses all officers of the United States, but also refers to a broader category of irregularly appointed officers. 


Barzun on Originalism and Living Constitutionalism
Mike Rappaport

Over at Balkinization, Charles Barzun criticizes originalism.  I am not sure that I understand his argument entirely, so I will just give some specific responses.  Barzun’s words are indented.  Mine are not indented.

It is an essential feature of the Constitution that it is the kind of thing that is amenable to different but proper interpretations over time, and it is in virtue of that amenability to change that (at least in part) it compels our obedience to it as our fundamental law.

I mainly disagree with this, especially the first part of the sentence (the nonitalized part).  The Constitution is the kind of thing that is correctly interpreted only in one way.  It is true that sometimes the answers are not clear.  And in those situations, a court may make a mistake, and later courts may follow that interpretation.  But that is not because the mistaken interpretation was “different but proper.”  Rather, it is because our precedent rules sometimes require that we follow mistaken interpretations in order to protect other interests such as reliance.

My suggestion is that this last, italicized phrase [ed, the italicized portion above] contains the essential nugget of living constitutionalism.  In philosopher’s lingo, it amounts to the claim that the Constitution’s adaptability to changed circumstances—precisely its “living” quality—is what grounds (at least in part) its normative claim on us.  I qualify it with “at least in part” because the Constitution (and its interpretations) must clearly satisfy some minimal threshold of moral adequacy in order to compel obligation.  But the basic idea is to stress the moral significance of the Constitution’s responsiveness to social, political, and economic change.  Let’s call this claim the adaptability claim.

I agree that, as a normative matter, the adaptability of the Constitution to changing values and circumstances is important.  But Barzun completely ignores the Amendment Process.  That is how the Constitution is to be adapted to new values and circumstances, when such adaptation is needed.  In fact, as John McGinnis and I show, living constitutionalism undermines the Amendment Process, largely preventing it from operating.       

At first blush, the adaptability claim seems to be nearly the opposite of what originalists argue, which is that the Constitution’s current authority derives primarily from the continuity it establishes between the law today and the founding (though they, too, would likely acknowledge the need for some minimum moral threshold).  Thus, the adaptability claim seems to be a meaningful claim and a genuine rival to originalism.

Yes, I agree with that, although Barzun will take it back in his next paragraph.

But it’s not hard to see that the adaptability claim just restates the traditional theory of the common law, according to which the law evolves through case-by-case adjudication.  If that’s right, then even originalists are committed to the adaptability claim, for every time a judge decides a constitutional case (or refuses to do so) the Constitution has either adapted or failed to adapt.  And who would deny that the Court should respond properly rather than improperly in such cases?  Surely Chief Justice John Marshall had something like this idea in mind when he famously insisted that “we must never forget that it is a constitution we are expounding.”  And that’s true even if the proper response was to rule the Bank of the United States unconstitutional.

Unless I am misunderstanding Barzun here, I believe he is mistaken here.  First, even assuming that the common law has this adaptability quality, the Constitution is not the common law.  It is a controversial, and I think erroneous claim, to view the written Constitution as common law.

Second, Barzun’s interpretation of Chief Justice Marshall’s statement that “we must never forget that it is a constitution we are expounding,” while a common one, is by no means clearly correct.  As John McGinnis and I argue in this article:  “While Marshall certainly addresses the problems of allowing future decision makers to respond to new circumstances, his argument is not that the Constitution should be adapted to mean whatever those future decision makers believe it should mean. Instead, he argues that this problem of anticipating future circumstances requires that Congress be given broad authority so that it can choose among the means.”  Moreover, we add that “it is significant that the . . . interpretation [followed by Barzun] was not one that was followed by the courts at the time.  During the nineteenth century, this quote was never cited to support the view that the meaning of the Constitution could change over time.”  It was only during the New Deal that it came to mean what Barzun thinks it means.  

More from Charles Barzun on Originalism and Nonoriginalism
Michael Ramsey

At Balkinization, Charles Barzun: An Unoriginal Joke (Part II), or Why We are all Living Constitutionalists. From the introduction: 

In Part I of this post [Ed.: noted here], I sought to explain the point of a joke tweet I had made in which I offered a theory of living constitutionalism as a satire.  The point was to pose a question to the new generation of originalists.  It asked, given how potentially capacious an understanding of originalism they defend, what’s at stake for them in defending it?  Why does it matter to them to prove originalism true if its substance has become so diluted?
This Part puts the same question to the other side of the debate.  The worry is that originalism has become so drained of substance that it’s no longer worth resisting.  If Jack Balkin can be an originalist, why can’t we all?  Is there any essential idea at the heart of living constitutionalism to which even a very ecumenical form of originalism fails to do justice?
I think the answer is both yes and no.  I think that there is such an essential idea but that it’s one even originalists accept or should accept.  Once we see why that is, it becomes possible to reframe the traditional debate in a way that, in my view, shows more clearly the question at the heart of what Larry Solum has called The Great Debate.
In my view the supposed convergence of originalist and nonoriginalist approaches and outcomes is greatly overstated, although it seems to be assumed among some (nonoriginalist) constitutional theorists.  Consider, for example, the "faithless electors" case, discussed by John McGinnis here.  The question is whether states can punish or replace electors who vote (or plan to vote) for persons other than the candidate who received the most votes in their respective states.  As Professor McGinnis recounts, some Justices at oral argument seemed concerned that a ruling against the states would have unfortunate modern consequences.  That seems an appropriate concern as a matter of nonorignalism but (as Professor McGinnis says) an inappropriate concern as a matter of originalism.  And whether the Justices take that concern into account or not may well be determine the outcome of the case.  So I remain unpersuaded that there's no real difference between originalism and nonoriginalism.


Robert Post: Tension in the Unitary Executive
Michael Ramsey

Robert Post (Yale Law School) has posted Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States (Journal of Supreme Court History, 2020) on SSRN.  Here is the abstract:

This article is excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which covers the period 1921-1930 when William Howard Taft was Chief Justice. The article will be published in an upcoming issue of the Journal of Supreme Court History.

The article offers for the first time a detailed account of the process by which William Howard Taft authored his pathbreaking opinion in Myers v. United States, the first Supreme Court decision ever to hold a statute of Congress unconstitutional because incompatible with Article II prerogatives of the President. The decision was six to three, featuring strong dissents by Brandeis, McReynolds, and Holmes. Using archival sources, the article discusses competing views within Taft’s majority coalition of six, as well as Taft’s own independent views about the question of the presidential power of removal.

Analyzing the reasoning of Myers in detail, the article argues that the decision is neither an example of originalism, as Justice Antonin Scalia has claimed, nor is it compatible with contemporary understandings of the “unitary” executive.


An Originalist Argument for Overruling Employment Division v. Smith
Michael Ramsey

In Fulton v. City of Philadelphia, the Center for Constitutional Jurisprudence filed this amicus brief in support of the petitioners, addressing the question whether the Supreme Court should overrule its reading of the free exercise clause in Employment Division v. Smith, 494 U.S. 872 (1990) (per Justice Scalia).  Here is the summary of argument: 

Amicus agrees with Petitioners that the Court should overrule Employment Division v. Smith, 494 U.S. 872 (1990). Courts applying Smith frequently deny relief even when the law imposes a substantial burden on the exercise of religion—a situation as intolerable as if the controlling standard for free speech routinely allowed censorship. Thirty years’ hardship under a faulty constitutional standard is long enough.

Without Smith, the Court can restore the Free Exercise Clause to its full vigor. Deciding how to do that depends on two questions. What does the Clause mean? And how should it be applied?

This brief addresses only the question of original public meaning—not the separate question of contemporary application. We argue that the Free Exercise Clause was originally understood to protect the unqualified right to exercise religion, free from government interference. Another amicus brief explains that the Free Exercise Clause should be applied through a combination of recognized categorical rules and strict scrutiny. See Brief of The Church of Jesus Christ of Latter-day Saints, et al. as Amicus Curiae Supporting Petitioners, Fulton v. Phila., No. 19-123.

A serious effort to determine the  meaning of the Free Exercise Clause begins with the “duty to interpret the Constitution in light of its text, structure, and original understanding.” N.L.R.B. v. Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in judgment). Although Smith is criticized for not considering the history of the Free Exercise Clause, it is hardly alone in that respect. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 575 (1993) (Souter, J., concurring in part and concurring in judgment). No opinion of the Court has explored that history since the nineteenth century, id. at 574, though Justices Scalia and O’Connor debated rival historical interpretations while advocating for and against Smith. For Justice Scalia, history denied that “accommodation was understood to be constitutionally mandated by the Free Exercise Clause.” City of Boerne v. Flores, 521 U.S. 507, 541 (1997) (Scalia, J., concurring). For Justice O’Connor,  “the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.” Id. at 555 (O’Connor, J., dissenting).

Our review of historical evidence—including materials that are frequently overlooked—suggests a different approach. Americans in 1789 understood the Free Exercise Clause as a guarantee that the new federal government would not make laws curtailing the exercise of religion. Decades later, the Fourteenth Amendment was added on the understanding that the right to exercise religion also would be unqualified against the states. Those who enshrined these provisions in our Constitution understood them as a pledge that all Americans could exercise their religion freely. It is that original understanding that ought to weigh heavily in the balance as the Court decides how to honor that pledge now—and in the future.

This reading of the Free Exercise Clause is consistent with the place that the constitutional founders assigned religious freedom. Preserving it was one of the grand aims of the Revolutionary War. Religious freedom was widely understood at the time as an inalienable right and as a condition of maintaining a republican form of government. New York and other states refused to enter the Union without an assurance that the Constitution would be amended to protect religious freedom. Every state ratifying convention that proposed a religious freedom amendment gave the free exercise of religion unqualified protection.

Interpreting the Free Exercise Clause as an unqualified right is also consistent with the constitutional text and legislative history, as well as early legal treatises. A categorical right to exercise religion attracted broad consensus because none of the federal government’s enumerated powers included the authority to regulate religious activity. The Fourteenth Amendment extended that unqualified right as a shield against infringement by state governments.

This interpretation holds significant implications.First, Smith should be overruled as irreconcilable with the original understanding of the Free Exercise Clause. An unconditional right to exercise religion cannot be squared with Smith’s holding that a law is valid if it satisfies the bare-bones criteria of neutrality and general applicability. See 494 U.S. at 879. Second, an unqualified protection of religious exercise should be the constitutional baseline from which to assess any judicial standard replacing Smith.

Strict scrutiny looks different from that perspective: it allows the government to carry out its most essential purposes even when it imposes a substantial burden on the exercise of religion. That standard no doubt furnishes the most plausible modern solution for vindicating the Free Exercise Clause despite the manifold conflicts that arise in a society governed under today’s regulatory state. See also Bowen v. Roy, 476 U.S. 693, 732 (1986) (O’Connor, J., concurring in part and dissenting in part) (“The rise of the welfare state was not the fall of the Free Exercise Clause.”). But the historical baseline we describe suggests that strict scrutiny is a compromise with the Constitution’s pledge of religious freedom—and ought to be acknowledged as such. Far from granting religious people and institutions a gratuitous benefit, strict scrutiny gives the exercise of religion less protection than the Constitution was originally understood to guarantee.

Note: whether to revisit Employment Division v. Smith is specifically one of the questions on which cert was granted.

(Thanks to James Phillips, who is one of the attorneys on the brief, for the pointer.  Prominent originalist scholar John Eastman of Chapman University Law School and the Center for Constitutional Jurisprudence is also on the brief.)


Michael Morley: Article III and the History of Nationwide Injunctions
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted Article III and the History of Nationwide Injunctions: A Response to Professor Sohoni (Alabama Law Review, Vol. 72, 2020) (19 pages) on SSRN.  Here is the abstract: 

In a recent article in the Harvard Law Review entitled, “The Lost History of the ‘Universal’ Injunction” [Ed.: available here], Professor Mila Sohoni contends that Article III permits federal courts to issue nationwide injunctions because they have issued such orders since the early 1900s. She offers 15 main examples of federal cases from between 1894 and 1943 in which she contends that the court issued nationwide injunctions. These historical precedents, she argues, legitimize the continued constitutionality of nationwide injunctions today.

This Essay demonstrates that the Article III objection to nationwide injunctions survives Professor Sohoni's critique for three main reasons. First, the only case that "Lost History" discusses in which the Supreme Court expressly addressed the validity of nationwide injunctions, Perkins v. Lukens Steel Co., largely rejected them. Perkins' express consideration of such orders carries far greater weight than inferences drawn from a handful of other cases, many from lower courts, that do not consider potential Article III concerns.

Second, most of the orders on which "Lost History" focuses are not the type of nationwide injunctions at the heart of most modern debates over the issue. The term "nationwide injunction" is ambiguous, encompassing up to five fundamentally different type of orders that each raise distinct jurisdictional, rule-based, fairness-related, prudential, and structural concerns. The ongoing controversy concerning so-called nationwide injunctions involves a type of order that I call a "defendant-oriented injunction." A defendant-oriented injunction prohibits a governmental defendant from enforcing a challenged legal provision against anyone, anywhere in the nation, including third-party non-litigants in other jurisdictions.

Most of the orders that "Lost History" cites are not defendant-oriented injunctions. Instead, they have materially different characteristics and are properly classified as completely distinct types of nationwide injunctions. These orders do not establish that federal courts have a lengthy history of issuing broad nationwide or statewide defendant-oriented injunctions aimed at enforcing the rights of third-party non-litigants.

Finally, even treating all 15 orders as relevant examples, they prove very little. In most cases, the scope of the order was neither contested by the parties nor addressed by the Supreme Court. To the contrary, in several cases, the Government implicitly or explicitly consented to the requested relief on an interim basis, alleviating the need for the Court to consider their propriety. Perhaps more importantly for the examples involving constitutional challenges to state laws, most federal districts in the period had only one or two district judges, who adjudicated such matters as part of three-judge trial-court panels. Whether a district court granted a statewide defendant-oriented injunction was usually irrelevant as a practical matter, since any future constitutional challenges to that state law were virtually certain to be heard by the same judge. Thus, even if such orders were technically improper, it is entirely understandable under the circumstances that defendants would not have wasted time challenging them.

In short, the history of nationwide injunctions does little to establish the constitutionality of defendant-oriented injunctions. Particularly in light of Article III precedent as it has evolved over the decades since, the Article III objection to such orders remains compelling.


Tammy Gales & Lawrence M. Solan on Church of the Holy Trinity v. United States
Michael Ramsey

Tammy Gales (Hofstra University) & Lawrence M. Solan (Brooklyn Law School) have posted Revisiting a Classic Problem in Statutory Interpretation: Is a Minister a Laborer? (Georgia State University Law Review, Vol. 36, p. 491, 2020) (44 pages) on SSRN.  Here is the abstract:

This study presents a new analysis of an iconic United States Supreme Court case, Holy Trinity Church v. United States (1892). The question in Holy Trinity Church concerned whether a law making it illegal to pay the transportation of a person entering the U.S. under contract to perform “labor or service of any kind” applied to a wealthy Manhattan church that had paid to bring its new rector from England to New York. The Supreme Court unanimously ruled that the law did not apply to the church’s contract, relying first on the ordinary meaning of “labor” and second on the legislative history of the single construction “labor or service.”

Highlighting the use of corpus linguistic methods, this study tests the arguments presented by the Court and reveals new insights through an analysis of historic and contemporary reference corpora and a specialized corpus of U.S. statutes. The results demonstrate that the disjunctive phrase labor or service appeared to be a legal term of art with narrow interpretation that would exclude clergy, but around the time of Holy Trinity Church, slight variations on the phrase (e.g., pluralization, conjunction, and modification) applied to contexts with broader meaning. When examining “labor” as an independent term, those who labored were generally not clergy and the description of the activities of clergy was typically not described as labor, although examination evidenced instances of both. The findings demonstrate the importance of consulting corpora in the evaluation of statutory and ordinary meaning and considering the socio-historical contexts in which it occurs.

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


Gregory Ablavsky on Territorial Appointments and FOMB v. Aurelius Investment
Michael Ramsey

At Balkinization, Gregory Ablavsky (Stanford), guest-blogging: PROMESA and Original Understandings of the Territories’ Constitutional Status.  From the introduction:

[Financial Oversight and Management Bd. v. Aurelius Investment] presented another iteration of the Court’s long-running attempts to make sense of the constitutional status of the territories. The question was whether congressional appointments of territorial officials to Puerto Rico’s financial oversight board required presidential nomination and Senate confirmation consistent with the Appointments Clause.  A unanimous Court said no.  A seven-Justice majority reasoned that the fact that federal law created the office did not transform the appointee into an officer of the United States, pointing to long-standing practice, although it noted that some high-level territorial officials did seem to require federal appointment.
Justice Thomas, however, would have gone further.  Arguing for a very sharp distinction between territorial and national power, he insisted that Congress reenacted the Northwest Ordinance to conform with the Appointments Clause because St. Clair and other territorial governors were also superintendents of Indian affairs, they wielded “powers of the National Government,” not the local government.  The First Congress, he insisted, “recognized the distinction between territorial and national powers.”
Unfortunately, this just-so story doesn’t fit the history....
And in conclusion:
So who does have it right?  I think the majority is on the right track when it recognizes both that a line between “territorial” and “national” power existed but that it was not always cleanly or neatly drawn.  But I actually think Justice Sotomayor’s concurrence—although it focused much more on the history of Puerto Rico—more accurately reflects how many in the territories would have thought about the relationship.  Sotomayor’s argument was that we should see territorial authority in the instances when the people of the territories themselves play a role in conferring that authority. That, in fact, was what those in the first territories clamored for—a chance to choose their own officers themselves, a view consistent with the Court’s own statements about democratic accountability in the context of commandeering. And Congress eventually listened: ironically, in contrast to the celebrated Northwest Ordinance, which created one of the least democratic forms of governance in U.S. history, later territorial governments provided for much greater popular input and control. In my view, this more functional test—rather than a formalist divide anachronistically thrust onto the First Congress’s unexplained actions—better captures what early Americans were arguing about when they argued over the territories.


Justin Aimonetti: The Intellectual Incubator of Judicial Review
Michael Ramsey

Justin W. Aimonetti (University of Virginia School of Law, J.D. '20) has posted Colonial Virginia: The Intellectual Incubator of Judicial Review (106 Va. L. Rev. 765 (2020)) (46 pages) on SSRN.  Here is the abstract:

What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics of disallowance is sparse. This limited exploration is surprising. Not unlike modern judicial review, the guiding question imperial overseers considered when disallowing colonial legislation was whether it was ‘repugnant’ to the laws of England. In response, this Note’s first contribution is to explain the process by which the so-called repugnancy principle was enforced against inferior colonial law. Even fewer scholars have attempted to connect the ultimate repugnancy assessment to the historical context surrounding disallowed colonial laws. This Note’s second contribution is thus to augment existing literature by exploring colonial Virginia’s specific experience under imperial supervision. Among the scholars that have explored the connection between colonial disallowance and the origins of judicial review, some have documented the link between imperial legislative review of colonial legislation and James Madison’s proposed constitutional solution to the problem of unrestrained state legislatures in the aftermath of independence. What remains to be explored, however, is how Madison explicitly drew on the history of imperial review of colonial Virginia’s laws as he argued at the Constitutional Convention for a federal power to “negative” state laws. Accordingly, this Note’s third contribution is to reveal that the historical practice of imperial review in Madison’s native Virginia animated his proposed solution to check the unrestrained popular will of state legislators. Although his proposed solution was ultimately rejected at the Convention, that rejection was conditioned on the judiciary possessing the power of judicial review. By exposing this hidden link, this Note demonstrates that colonial Virginia rightly may be regarded as the intellectual incubator of judicial review.


The Supreme Court, FOMB v. Aurelius Investment, and the Insular Cases
Michael Ramsey

At Slate, Kyla Eastling, Danny Li & Neil Weare: The Supreme Court Just Passed Up a Chance to Overrule Appallingly Racist Precedents.  From the introduction:

The Supreme Court just can’t seem to quit the Insular Cases, a series of controversial decisions from the era of Plessy v. Ferguson that established a doctrine of “separate and unequal” status that has justified denying basic constitutional rights and protections to the nearly 4 million Americans living in Puerto Rico and other U.S. territories.

On Monday, the Supreme Court unanimously upheld [ed.: in Financial Oversight and Management Board v. Aurelius Investment LLC] the constitutionality of the Financial Oversight and Management Board for Puerto Rico—an undemocratic, federally appointed body with near-total authority over Puerto Rico’s budget and finances. In doing so, the court once again avoided the opportunity to finally overrule the Insular Cases. Parties on both sides called on the court to expunge this shameful remnant of America’s imperialist past from our body of constitutional law. Yet the most the court could muster was an acknowledgment that the Insular Cases are “much criticized” and that “whatever their continued validity,” the justices “will not extend them in these cases.”

It’s easy to see why the justices would distance themselves from the Insular Cases. Issued at the height of America’s imperialist expansion in the early 20th century, these controversial decisions broke from prior precedent to create the doctrine of territorial incorporation, allowing Congress to govern residents of so-called unincorporated territories outside the usual constitutional limitations on its power. The expressly stated justification for this discriminatory doctrine was the racist belief that these newly acquired overseas territories were populated by “alien races” and “savages” who could not comprehend American “Anglo-Saxon principles.”

And in conclusion:

The Supreme Court missed a ripe opportunity to turn the page on the Insular Cases and extend the principle of equal justice under law to residents of U.S. territories. It is long past time to recognize that the Constitution protects all Americans equally, wherever they live.

Agreed.  The Insular Cases are an abomination.  But it should be emphasized that they are a nonoriginalist abomination.  The "territorial incorporation" doctrine has no basis in the Constitution's text or any context or pre- or early post-ratification history.  As originalists Gary Lawson and Guy Seidman put it in their great book Constitution of Empire (pp. 196-197):

[T]here is nothing in the Constitution that even intimates that express constitutional limitations on national power apply differently to different territories once that territory is properly acquired.  Nor is there anything in the Constitution that marks out certain categories of rights as more or less “fundamental” than others…. The doctrine of “territorial incorporation” that emerged from the Insular Cases is transparently an invention designed to facilitate the felt need of a particular moment in American history.

A leading (and to my mind the strongest) argument against originalism in constitutional adjudication is that it can lead to bad outcomes (not always, but perhaps in enough cases to be worrisome).  But as the Insular Cases illustrate, nonoriginalism also can lead to bad outcomes.  Freeing judges from original meaning to follow their policy-driven intuitions is no guarantee of good (or even consistently better) outcomes.

As to the future of the Insular Cases, I hope litigants will continue to press the Court to re-examine the territorial incorporation doctrine.  It seems like something originalists and nonoriginalists should be able to agree on.

RELATED:  On originalism in the Aurelius case specifically, see here from Chris Green.


Does the President Have Power to Combat "Domestic Violence"?
Michael Ramsey

A number of commentators have recently argued that the President should (or at least can) use the U.S. military to suppress the ongoing riots and disorder in major cities.  (For example, Andrew McCarthy at NRO: The President Has the Constitutional Power to Restore Order. He Must Act. Also here from Marc Thiessen.)

I think, though, as a constitutional matter this authority is somewhat limited.  Assume the President has statutory approval to act from a combination of the Insurrection Act and the Posse Comitatus Act (as McCarthy argues in the essay linked above).  As a constitutional matter the President surely has authority -- especially if authorized by Congress but probably even if not -- to use the military to enforce federal law and protect federal institutions.  (President Buchanan was wrong about his lack of authority in the run-up to the Civil War.)  But does the President have power to suppress violations of state law arising from disorder, such as looting and vandalism?

The key constitutional provision is Article IV, Section 4:  "The United States ... shall protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."  One could read this language only as a duty of the United States (when requested by a state, the United States must protect against domestic violence), saying nothing about whether the United States can otherwise choose to protect a state even without a request.  But I think it is better read as both a duty and a limit.  The negative implication is that the United States can act against domestic violence if but only if a state (through its legislature or executive, as appropriate) asks for help.

The clause's relatively high hurdle for state requests suggests that the clause is a limit as well as a duty.  The point of requiring an application from the state legislature (in the ordinary case) or the state executive is to protect the state from premature (or pretextual) federal intervention.  That is why this requirement applies only to federal interventions against domestic violence and not to federal interventions against invasions.  In the case of invasion, it's clear that the federal government should act.  But states may well prefer to handle domestic violence on their own rather than accept federal intervention, and the clause makes clear that this choice is for the state -- ordinarily through its legislature -- to make.

Admittedly I haven't researched founding-era materials to confirm this reading, and no doubt there are historical instances that don't conform to it, but it appears to be the best reading from the text alone.

Applied to the current situation, I think the President -- even assuming congressional authorization -- can use federal power to enforce federal law and protect federal institutions but cannot use federal power in general to suppress domestic violence unless requested by individual states in accordance with Article IV, Section 4.


Financial Oversight and Management Board v. Noel Canning
Chris Green

Justice Breyer’s opinion yesterday for the Court in Financial Oversight and Management Board v. Aurelius Investment, finding that certain bankruptcy-related officers in Puerto Rico are not “officers of the United States” under the Appointments Clause, made a few comments about the interpretive relevance of subsequent practice that strike a much more originalist tone than Breyer’s comments on the same issue for the Court six years ago in NLRB v. Noel Canning.

One big issue for originalist use of subsequent practice is whether it is epistemic (i.e., shedding light on the meaning expressed by the text in its original context) or instead constitutive (i.e., filling in a gap that was left because that original meaning was incomplete). An old joke about three umpires illustrates the difference. The first says “There’s balls and strikes, and I call them as I see them.” The second says “No—there’s balls and strikes, and I call them as they are.” The third says, “No, you’re both wrong. There’s balls and strikes, but they aren’t anything until I call them!”

In a constitutional setting, the first umpire’s attitude, rather than the second or third, is what most originalists want out of officeholders after the Constitution is adopted. Officeholders should do their best, though their decisions neither constitute the constitutional subject matter—the Constitution—nor do they capture it infallibly.

The recess-appointments-clause case from 2014, Noel Canning, though, included some comments on subsequent practice that sounded a bit like the approach of the third umpire: “[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” It is much easier to see the interpretive relevance of practices that began in the 1820s if those practices are meant to fill in gaps, constitutively, rather than shed light, epistemically, on the meaning expressed in the original context. Preferring William Wirt in 1823 to Edmund Randolph in 1791 doesn’t make a lot of sense if we are looking for reliable early observers of the meaning conveyed by the text in its original context. Only if we are looking for reliance interests instead of reliable guides might the 1820s trump the 1790s.

Breyer’s opinion yesterday talked again about subsequent practice. His language at page 11, though, was more encouragingly epistemic: “Like Justice Thomas, we think the practice of the First Congress is strong evidence of the original meaning of the Constitution. We find this subsequent history similarly illuminates the text’s meaning.” At page 21 he repeated that the Court looked to find “the test established by the Constitution’s text, illuminated by historical practice.” To follow such a test was to be “more faithful to the Clause’s original meaning.”

It is encouraging to see seven justices—not even including Justice Thomas!—take the “original meaning of the Constitution” as their touchstone for interpretation. The notions of “evidence” and “illumination” likewise give subsequent practice a refreshingly epistemic subordinate role. The FOMB Court takes subsequent history as a guide to original meaning, not as an independent truthmaker for constitutional requirements.

Lawrence Solum on Interpretation and Construction
Michael Ramsey

At Legal Theory Blog, Lawrence Solum has an updated entry in the Legal Theory Lexicon: Interpretation and Construction.  It begins:

Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex.  What does the text mean?  How does that meaning translate into legal doctrine?  And how does the doctrine apply in the context of the facts of the case?  One way to think more clearly about this process is to distinguish between interpretation and construction.  We can roughly define these two activities as follows:

  • Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text.
  • Construction: The activity of determining the legal effect (or legal content) of a legal text.

Those definitions sound pretty technical, but I hope you are starting to get the idea.  We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.

And on the relationship between originalism and the interpretation/construction distinction:

History of the Interpretation-Construction Distinction

My impression is that many legal scholars believe that the interpretation-construction distinction was introduced by Keith Whittington and popularized by Randy Barnett as as part of the emergence of the "new originalism" in the late 1990s.  The distinction did play an important role in the emergence of one strand of the new originalism--more on that in a moment.  But the distinction is an old one in American legal theory, going back to the first half of the Nineteenth Century in the work of Franz Lieber and playing an important role in the work of Arthur Corbin in the Twentieth Century.  Greg Klass has done important work on the history--some of which is linked to below.

The Interpretation-Construction Distinction and the New Originalism 

One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism."  One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction.  (This is especially clear in the work of Keith Whittington and Randy Barnett.)  The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation.  Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work.  New Originalists deny that this is true.  They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene. 

Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results.  We might call the view that original meaning and a living constitutionalism are consistent "compatibilism"--the case for this view has been made by Jack Balkin.

I've raised this objection before in the context of discussing New Originalism, but here it is again:  I think the account above doesn't adequately distinguish between two different divides in originalist theory.  One is the divide between original intent originalism (the "Old Originalism" associated with Robert Bork and modern scholars such as Larry Alexander and Richard Kay) and original public meaning originalism associated with Justice Scalia (and modern scholars such as Gary Lawson and Michael Paulsen).  The other is the divide between those who embrace a broad "construction zone" where the interpretation/construction distinction "opens the door for a partial reconciliation of originalism with living constitutionalism" (the "New Originalism" described in the excerpt) and those who do not.

It's important to keep these divides separate because a number of modern originalist scholars are neither "Old Originalists" (in the sense of embracing original intent) nor "New Originalists" (in the sense of embracing a broad "construction zone").  I call them "Scalian originalists" because Scalia was a pioneer of this position -- he adopted original public meaning instead of original intent as the touchstone of his inquiry (thus he was not an "Old Originalist") but he rejected the idea of construction in the sense of the excerpt above.

Mike Rappaport adds: I agree with the criticism that Mike Ramsey makes here.  I have written about this previously where I discuss the problem of the name of the New Originalism and of treating New Originalists as the only advocates of original public meaning.   


Charles Barzun on Originalism as Our Law
Michael Ramsey

At Balkinization, Charles Barzum (Virginia), guest-blogging:  An Unoriginal Joke, Part I.  He begins:

Sometimes parody reveals more truth than even the parodist intended.  Last week I tweeted what was meant as an offhand joke about originalism but which was taken seriously by some.  But those who did take it seriously sparked a debate that ended up being fruitful in a way I had not remotely foreseen.  Eventually I’d like to say more about that, but first I want to state more explicitly the point I was trying to convey.
The joke was this: I wrote, “I have a new theory of constitutional law. I call it ‘living constitutionalism.’ It claims that the Const. has been interpreted by the Court in different ways at different times.  It is thus a ‘living’ doc. Living Constitutionalism is our law and judges take an oath to support it.”  I then spelled out the syllogistic argument that proved we have a living constitution:
P1: Texts whose interpretations change over time are “living.”
P2: The Constitution is a text whose interpretation has changed over time.
C: Therefore, the Constitution is a living text.
The joke probably only made sense to those who have been following recent debates about constitutional originalism.  In case you have not been following them so closely, here’s a quick synopsis of the dialectic, which conveys something of its frustratingly shape-shifting quality:
Originalist: This just in: It turns out originalism is our law.
Critic: Huh? No, it’s not — it’s rejected by a majority of the Supreme Court and most federal judges!
Originalist: No, I don’t mean Bork’s or Scalia’s kind of originalism.  I just mean that we think our Constitution began at the founding and there have been no revolutions since.  Like in the way that Anthony Kennedy is an originalist.
Critic: Oh, okay, I guess, but then… what’s the point, exactly?  Besides, even that claim seems to require defending a theory of law.
Originalist: No worries, we’ve got that.  See Hart, etc.  Also, the judicial oath proves that originalism is true.
Critic: Wait, what?
Originalist: Well, judges swear to uphold “the constitution,” right?  And that’s the same Constitution President Washington swore to uphold, no?  So when judges swear to support and defend the Constitution, that is the same constitution as “this constitution” that Article VI makes the supreme law of the land. Therefore, originalism is true.
Critic: So judges who aren’t originalists are breaching their oaths and are thus impeachable?! That’s crazy! And question-begging and circular.  At the very least, it depends on what you mean by “same.”
Originalist: No, not impeachable, just mistaken is all.  To understand, you really oughta bone up on your philosophy of language, from Frege to David Chalmers’ latest work.  Anyway, all I’m saying is that IF originalism is our law, then judges have a duty to uphold it.
Critic: Oh, okay.  But then if living constitutionalism is our law, then judges have a duty to uphold a living constitution.  But that’s the whole issue in dispute.  So, to repeat, what’s the point of all this again?
And from later on:
I think originalists genuinely believe that it matters that even liberal judges and scholars pay lip service to the framers and strive, whenever possible, to render their constitutional views consistent with original understandings.  See, e.g., virtually every liberal law professor’s constitutional argument for impeaching Trump.  The originalists think it matters that there is an “official story” of our constitutional order that traces back to the founding and that judges promise to take that story seriously when they decide cases.
If that is right, then my question is not about the propositions these facts are marshalled to establish, but rather the perceived stakes involved in doing so.  Why does it matter that these features are part of our constitutional practice?  The answer cannot simply be that they reveal originalism to be true, because there are lots of truths that don’t generate articles, conferences, blog posts and op-eds devoted to establishing them.  Is it because the ideal of the rule of law requires a hierarchal structure of authoritative rules, without which there would be chaos?  Is it because the founders were particularly wise or virtuous and so deserving of deference, even if only superficially?  Is it because a constitutional order requires, for its survival, some consensus, however thin, about such origin stories?  Something else entirely?
I think what is frustrating to many observers of, and participants in, recent debates in constitutional theory is the sense that the answers to these questions (whatever they may be) are doing the real work in the arguments for originalism.  Yet they are rarely articulated.  They underlie the choice of premises but make no appearance in the syllogisms.  Maybe if they were brought out and acknowledged, the debate could be more meaningfully advanced.


A Reply to John Vlahoplus on Title VII
James Phillips

The Supreme Court has yet to release a decision in cases presenting the questions of whether Title VII’s ban on employment discrimination based on sex would also exclude discrimination based on sexual orientation and gender identity.  Those who think so have argued that the text is on their side.  I have shown that their putatively textualist argument violates an important linguistic (and hence properly textualist) principle:  the principle of compositionality.  Plaintiffs flout that principle when they fail to take the word “discriminate” together with its surrounding language as the semantic unit that it had become by the 1960s:  “discriminate against . . . because of . . . [one of several suspect classifications, including “sex”].”  In my piece, I read that whole phrase in light of the principle of compositionality, enactment-era dictionaries, and voluminous databases of English texts from that era.  I showed that properly read, Title VII’s ban on sex discrimination covers only those employment policies that reflect unfair attitudes or notions about some or all men in particular, or some or all women in particular.  I also showed that this reading is compatible with all of (and finds express support in many of) the Supreme Court’s precedents on Title VII.

In his brief response, John Vlahoplus doubts the last claim.  He suggests that my reading of Title VII contradicts one Supreme Court decision in particular: Ricci v. Destefano.  There a City administered a test to determine which of its firefighters to promote, but then threw out the test results when it noticed that racial minorities had scored lower than whites.  In its defense, the City said that it scrapped the test only to avoid a harmful disparate impact on minorities (and consequent liability for the City itself, under a statutory provision holding employers responsible for policies that have such impact).  Because this decision was motivated by a desire to avoid disparate impact liability, the City argued, it could not count as a violation of Title VII’s ban on direct discrimination.  But the Supreme Court determined that the City had indeed violated the latter ban.  Mr. Vlahoplus thinks that this holding disproves my theory that direct discrimination under Title VII must rest on unfair attitudes or generalizations based on a suspect classification.

That is not so.  The City in Ricci threw out a test that benefitted white candidates because the beneficiaries were white.  But to treat the fact that a test benefits whites as a knock against it is to discount the interests of white candidates in particular (i.e., relative to others’ interests).  And this comes squarely within the definition of class-based discrimination that emerged from my analysis.  As I repeatedly described the conclusion of my research, Title VII’s operative language is best read to ban treatment that reflects “unfair attitudes” (or ideas) toward members of one group in particular, including the “discounting of interests” of members of that group (not only “outright antipathy” toward them).  Pp. 3, 6, 7.  This focus on a discounting of white candidates’ interests relative to others’ is reflected throughout Justice Kennedy’s majority opinion and Justice Alito’s concurrence.  In Justice Kennedy’s telling, for instance, the City’s discarding of the test denied “equal opportunity” for white candidates; thwarted their “legitimate expectations,” created by the administration of the test; and wasted white candidates’ investment of “substantial time, money, and personal commitment in preparing” for the test.  Justice Alito likewise emphasized his view that the City denied members of one racial group a “fair chance” at promotion.   

To be sure, if an employer’s action merely prevents a disparate impact, for the sake of compliance with federal law, it does not rest on unfair attitudes or ideas, and so cannot violate Title VII on my reading.  But the Ricci Court agreed, so there is no contradiction.  The problem in Ricci, according to the Court, was that it was unreasonable for the City to think that keeping the test results would create a cognizable disparate impact.  (“[T]here is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability[.]”)  And if the City’s action did not prevent a cognizable harm to one racial group, it could only “amount[] to the sort of racial preference [for another group] that Congress has disclaimed”—the sort that necessarily reflects a discounting of the interests of members of one group in particular; the sort covered by my reading of Title VII in light of the principle of compositionality.


John McGinnis on Faithless Electors and the Threat to Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: Faithless Electors and Faithful Judges.  Here is the introduction:

Two cases argued this month, Chiafalo v. Washington and Colorado Department of State v. Bacca, pose the most important questions this term for originalism. They concern the ability of presidential electors in the Electoral College to exercise their own legal discretion in the choice of President. In the first case, Washington has fined Mr. Chiafalo for refusing to vote for Hillary Clinton, the candidate to whom he was pledged. In the second, Colorado replaced Mr. Bacca before he could vote for a candidate other than Clinton, to whom he was also pledged. Both electors object to their treatment as violating their rights as presidential electors under the Constitution.

The cases’ significance for originalism stems from the absence of controlling Court precedent on the question of a presidential elector’s discretion. Most Supreme Court cases have prior cases that arguably dispose of the issue, but these do not. The only case about the obligations imposed on electors, Ray v. Blair, concerned moral pledges that parties required of the electors, not the very different question of whether the electors’ choice can be disciplined by law. In their lack of controlling precedents, these new cases resemble NLRB v. Noel Canning, in which the Court had to address, for the first time in its jurisprudence, certain important questions about the scope of the Recess Appointments Clause.

Unfortunately, if the oral argument for the cases about presidential electors is any indication, the Court may do grave damage to originalism by suggesting that the bad consequences of a constitutional provision or practice subsequent to the time of its enactment can override its original meaning.

Also from later on, this point:

Some of the justices, including Sotomayor, Kavanaugh, and Kagan, also suggested that common practices since the time the Electoral College was created might be considered in addition to the original meaning. But this method has many of the same problems as the consequentialist approach, and it is not akin to following judicial precedent. The scope of practices is generally less clear than the scope of judicial precedent because such practices do not come with a rationale laid out in a case. For instance, it has been the practice for some time for many states to require electors to pledge themselves to a candidate. But this practice of pledging has not carried with it any legal obligation, which is the relevant issue here.

Agreed.  I may be more sympathetic to the use of non-judicial precedent to qualify originalism than Professor McGinnis is.  But non-judicial precedent (like judicial precedent) needs to be used precisely and narrowly to fit with originalism.  (See my discussion of custom as a basis of law here, where I use the example of congressional-executive agreements).  In the faithless electors case, the relevant custom is imposing punishment on faithless electors (in the Washington case) and removing and replacing faithless electors (in the Colorado case).  My understanding, as informed by the briefs in those cases, is that neither practice is either longstanding or widespread.  So even if originalism is appropriately tempered by widespread longstanding practice, that isn't an appropriate guide here.


Gary Lawson: A Private-Law Framework for the Public-Law Puzzle of Subdelegation
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework for the Public-Law Puzzle of Subdelegation (forthcoming, American Enterprise Institute) (46 pages) on SSRN.  Here is the abstract:

In the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of private-law agency arrangements. There are good reasons to think that the Constitution draws on private-law background norms for much of its meaning, and the subdelegation problem is an excellent candidate for elaboration in private-law terms. Thus, when Chief Justice John Marshall in 1825 drew a distinction between impermissible grants of discretion on “important subjects” and permissible grants of discretion on matters of “less interest,” his approach was far more structured, grounded in precedent , and law-like than may appear at first glance. It drew on principles and case law developed in settings ranging from powers of appointment in wills, in which the holder of the power tries to designate another person to exercise it, to the lack of privity between merchants and subdelegees in the absence of express authority on the part of the agents to subdelegate power, to the lack of authority of factors and supercargoes to entrust sale of goods to subagents without the express consent of their principals. Thus, judges worried about the open-ended character of a non-subdelegation doctrine need not run away from Chief Justice Marshall’s classic formulation. They simply need to flesh out its private-law background. There was abundant law regarding subdelegation in the eighteenth and nineteenth centuries, and the Constitution’s subdelegation principle is grounded in that law.

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


Julian Davis Mortenson & Nicholas Bagley on Nondelegation
Michael Ramsey

In The Atlantic, Julian Davis Mortenson & Nicholas Bagley: There’s No Historical Justification for One of the Most Dangerous Ideas in American Law (drawing on their longer paper here).  From the introduction:

Most government activity in the United States rests on a simple idea: that it’s okay for the legislature to authorize the executive branch to regulate basically anything the legislature itself could reach—working conditions, pollution, elections, financial products, mask wearing, you name it. That idea is now under attack. Relying on a so-called nondelegation doctrine, conservative originalists insist that the Founders never intended for government to work this way. They call for courts to strike down any laws that delegate too much power—and much of the federal bureaucracy along with them.

Their argument is grounded in a cursory, selective review of the historical record; it simply falls apart under any kind of serious scrutiny. Americans in 1789 didn’t share the view that broad delegations of legislative power violated the Constitution. Indeed, they would have been baffled by the claim, because governments throughout the Anglo-American world had long relied on this very technique without controversy. There wasn’t any nondelegation doctrine at the founding, and the question isn’t close.

And on early practice:

Early Congresses followed suit. Though they often issued instructions in painstaking detail, they also delegated in sweeping terms. These delegations were neither ancillary nor of secondary importance. They were vital to the establishment of a new country—to shore up its finances, regulate its industry, govern its territories, secure its revenue, and guard against internal and external threats.

Here are a few examples, all drawn from the First Congress, which sat from 1789 to 1791:

    • Congress readopted the Northwest Ordinance, which gave to the appointed governor of the Northwest Territory and three federal judges the power to issue the territory’s entire civil and criminal code “as may be necessary and best suited to the circumstances of the district,” with no other guidance whatsoever.
    • To foster industrial innovation, Congress adopted a patent law giving the secretary of state, the secretary of war, and the attorney general the power to grant patents to new inventions whenever they “deem the invention or discovery sufficiently useful or important.”
    • Congress forbade trade or intercourse with American Indian tribes without a license—and required all licensees to be “governed … by such rules and regulations as the President shall prescribe.”

All of these laws, and others we discuss in the paper, empowered executive officials to adopt rules governing private conduct without meaningful guidance from Congress.

(Via How Appealing).

For some originalist counterarguments, see here from Ilan Wurman and here from Aaron Gordon.