The Gundy Project
Michael Ramsey

In the Wall Street Journal, David Rivkin and Lee Casey celebrate the possible revival of the nondelegation doctrine in Gundyv. United States:  Alito Teases a Judicial Revolution-- His concurrence suggests the dissenters will soon prevail in restoring the ‘nondelegation’ doctrine.

Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.


Justices Gorsuch’s and Alito’s opinions, together with Justice Kavanaugh’s strong separation-of-powers jurisprudence as an appellate judge, suggest that a majority of justices are prepared to reimpose proper constitutional restraints on congressional delegations. All they need is a suitable case.

But at Prawfsblawg, Rick Hills  (echoing earlier thoughts by Adrian Vermeule and Gerard Magliocca) is skeptical: Gundy, Constitutional Coalitions, and the Credible Commitment Problem of Constitutional Doctrine.

There is a high probability that the SCOTUS will, some time in the near future, strike down some statute as a way of sending the message that the Non-Delegation Doctrine remains a part of the judicially enforced Constitution — but that opinion will later be quietly nullified by lower courts just as Lopez itself was quietly nullified prior to Raich — with the SCOTUS’s tacit blessing of repeated cert denials. As [Gerard Magliocca] notes, the problem is that “it's simply too hard for the Court to create a sensible distinction between valid and invalid delegations.


The problem with unintelligible doctrines like the “intelligible principle” doctrine is coalitional instability. As I suggested in a different context back in 2015, “neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes.” Aided by a swing vote in the center, liberals plus the swing vote will invoke the mushy doctrine against conservative statutes; conservatives (plus the swing) will invoke it against liberal ones, and the doctrine itself will become little more than a marker for the essentially legislative discretion of the SCOTUS. 

Professor Hills elaborates the argument in a followup post:  Institutional Flip-Flops and Mushy Doctrine: Why Gorsuch’s Non-Delegation Revolution Won’t Happen (noting the absence of a "hard-edged, crisp, defection-proof doctrine" of nondelegation).

I agree this is a problem, and the vast academic writing about the nondelegation doctrine doesn't much help (and in fact may exacerbate it).  What's needed is indeed a clear rule that limits delegations in accordance with the founding design that Justice Gorsuch sketches in his dissent.  Justice Scalia thought it couldn't be done -- hence his majority opinion in Whitman v. American Trucking Association largely declaring the nondelegation doctrine non-justiciable.  It seems like a worthy academic challenge.  I even have a title: "An Originalist Rule for Delegations." I hope someone (other than me) will undertake the project.

Julian Davis Mortenson: The Executive Power Clause
Michael Ramsey

Julian Davis Mortenson (University of Michigan Law School) has posted The Executive Power Clause (University of Pennsylvania Law Review, Vol. 119) (93 pages) on SSRN.  Here is the abstract:

Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth-century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security.

This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives — including not just records of drafting, legislative, and ratification debates, but also committee files, private and official correspondence, diaries, newspapers, pamphlets, and other publications—this article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive affirmative account of the clause that is both historically and theoretically coherent.

The Founding generation understood “executive power” to mean something both simple and specific: the power to execute law. This authority was constitutionally crucial, but it extended only to the implementation of pre-existing legal norms and directives that had been created pursuant to some other authority. It wasn’t just that the use of executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.


Why the Full Faith and Credit Clause Supports the Supreme Court's Decision in Hyatt
Andrew Hyman

In the recent case of California v. Hyatt, the U.S. Supreme Court said that one state must respect the sovereign immunity of another.  That decision has been criticized for not relying upon any particular text of the Constitution.  I commented on May 26 at this blog that the decision in Hyatt could have and probably should have been supported by the Full Faith and Credit Clause (FFC Clause).  Now I’d like to elaborate about the FFC Clause which is at Article IV, Section I:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The second sentence is not directly pertinent here, because Congress has not made any laws substantively addressing interstate sovereign immunity in a context like the Hyatt case.  The main federal statute about full faith and credit is 28 USC 1738 which deals with establishing credence of acts, records and judicial proceedings in sister states (“credence” is basically synonymous with “credit”), without saying whether the sister states must ever be faithful to those acts, records and judicial proceedings (the word “faith” often suggests loyalty, allegiance, or fidelity).  That’s why I’ve put in bold the first sentence above, which is self-executing.  The FFC Clause derived from the following clause in the Articles of Confederation:  

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

This older clause did not clearly cover acts of state legislation like the FFC Clause does, and so this older clause would not address a state’s legislative declaration of sovereign immunity as in Hyatt.  Likewise, the addition in 1787 of a second sentence to the FFC Clause empowered Congress, which suggests that the framers were not entirely satisfied with how states had previously treated the clause just block quoted above.  For these reasons, one should not assume that a settled pre-1787 understanding would control the first sentence of the FFC Clause, and in fact the matter was unsettled during the Confederation period.

Professors Will Baude and Steve Sachs argued in their Hyatt amicus brief that the 1781 case of Nathan v. Virginia shows that the precursor of the FFC Clause in the Articles of Confederation did not guarantee interstate sovereign immunity.  But in that case, it was decided that states had sovereign immunity in the courts of sister states automatically by the law of nations unless waived, so there was no need in that case to address whether the “full faith and credit” language in the Articles of Confederation would have done something similar. 

Another event in 1781 is often overlooked: a committee of the Continental Congress reported that “execution” of that clause in the Articles of Confederation required a congressional declaration of two different things: “[1] the method of exemplifying records and [2] the operation of the Acts and judicial proceedings of the Courts of one State contravening those of the States in which they are asserted….”  Thus, the clause was often understood during the Confederation period as going beyond evidentiary matters, and the second sentence that was later added in 1787 addressed the exact two things that the committee had pointed to in 1781, including not just the method of authentication but also the effect of items authenticated. 

In Federalist 42, Madison called that older clause in the articles of Confederation “extremely indeterminate,” and yet the constitutional convention deemed it sufficiently determinate in 1787 to include in Article IV, at least as a default rule when Congress does not act.  An article by David Engdahl discussed various court cases from the Confederation period suggesting that the duty of “full faith and credit” mainly referred to authenticating actions of sister states, without any substantive duty to respect the stuff that was authenticated, but Engdahl acknowledged that the matter “remained in some dispute” as of 1787.  

Contrary to what several state courts opined before 1787, the words “faith” and “credit” should not be treated as redundant, and the word “credit” would have been sufficient if the only purpose was authentication.  An article by James Sumner (34 OR. L. REV. 224, 226 (1955)) pointed to evidence that this potential “repetition of meaning was apparently recognized by the members of the Constitutional Convention.”  In ordinary speech, the phrase “faith and credit” probably means “loyalty and credence,” and the preceding word “full” probably refers to a particular body of law or custom instead of referring to some maximum hypothetical extent.  After all, it would be ridiculous to force one state to fully obey every statute made by another state.  Sure enough, a pertinent body of law or custom was discussed at the constitutional convention by James Wilson: “what now takes place among all independent nations.”  

It is tempting to suppose that the word “full” in the FFC Clause instead means (per a 1790 statute quoted at length by Engdahl) “such faith and credit…as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”  That supposition is problematic though, because the 1790 statute confined that use of the word “full” to records of judicial proceedings rather than acts of legislatures.  So, that 1790 statute was modifying (rather than elaborating) the default rule provided by the first sentence of the FFC Clause.  Engdahl confirms that this point “caused confusion among lawyers, judges, and even legislators.”

In sum, absent congressional modification of the default rule, states very probably must be faithful to a sister-state’s legislative claim of sovereign immunity.   This was the prevailing rule among the states and among nations in 1787, and is therefore essential for “full” faith and credit.  As Baude and Sachs wrote, “both parties in Nathan understood the case to turn directly on the law of nations."  Indeed, the law of nations was so clear that there was no need to use the proto-FFC clause, which at that time did not cover state-legislative assertions of sovereign immunity anyway.


Michael Dorf on Originalism in Gamble v. United States
Michael Ramsey

At Dorf on Law, Michael Dorf highlights a small but interesting issue of originalist methodology in the Supreme Court's recent opinion in Gamble v. United States (the double jeopardy case).  He writes: 

Justice Alito [in the majority opinion] notes that the petitioner's argument based on original understanding relies extensively on a single 1677 case involving a fellow named Hutchinson but that there is no surviving report of the case and that much of what we do know about the case suggests that it and subsequent cases cut in favor of the separate-sovereigns principle. He then takes note of an argument made by the petitioner. Justice Alito writes for the Court:

[Petitioner argues that] [w]hatever the English courts actually did prior to adoption of the Fifth Amendment, by that time the early English cases were widely thought to support his view. This is a curious argument indeed. It would have us hold that the Fifth Amendment codified a common-law right that existed in legend, not case law.

But why is this argument curious as a matter of original public meaning? Suppose you are reading a journal of the proceedings of an astronomical society from 1791 and you come across a calculation of the orbit of "the outermost planet in the solar system." You wonder whether the astronomers were discussing Neptune or Pluto, but find yourself puzzled, because the calculations are way off for either one. Then it hits you. In 1791, the most distant known planet was Uranus, which was discovered ten years earlier. Neptune would not be discovered until 1846. The most sensible reading of "outermost planet in the solar system" in this context is Uranus.

That's not a perfect analogy, of course, but it underscores a basic point that a reconstruction of original public meaning properly takes account of what the public thought, not necessarily of what was true.

I partly agree and partly don't.  I agree as to Gamble.  The question is what the enactors of the Fifth Amendment understood the double jeopardy right to be.  It's possible that they understood the Amendment to prohibit double jeopardy as defined in English common law, however it was defined.  But it's more likely that they understood the Amendment to prohibit double jeopardy -- at least as to its major contours -- as they (the enactors) defined it, which in turn was likely their understanding (right or wrong) of English common law.  If there was not common understanding of the double jeopardy right in America at the time of enactment, then I would think the actual rules of English common law should be decisive.  But if it could be established that there was a consensus understanding of double jeopardy in America a the time of enactment, I think that should be close to conclusive as to the Amendment's meaning, and not at all undermined by a showing that Americans misunderstood English law.  (This argument seems particularly significant in the free speech area, where it may well be that the enactors adopted "a common-law right that existed in legend, not case law."

But I don't agree with Professor Dorf's planetary analogy.  Suppose a law is enacted that no one may travel "beyond the outermost planet in the solar system."  At the time of enactment, Planet X is the most distant known planet in the solar system.  Later, a more-distant planet in the solar system, Planet Y, is discovered.  Does the law now prohibit travel beyond Planet X, or beyond Planet Y?  I say, at least presumptively, only beyond Planet Y.  Context indicates that the enactors were not thinking of a specific planet, but rather of the outer bounds of the solar system, wherever that might be.  Indeed, if the law had instead said no one may travel "beyond the outer bounds of the solar system," it seems obvious that that means beyond the outer bounds of the solar system as we understand it from time to time, not the outer bounds of the solar system as known at the time of enactment.  The non-specific reference to the outermost planet has the same character, and should be interpreted the same way.

Nonetheless, I concede this is often a difficult methodological issue for originalism, because it seems clear that sometimes it should go one way and sometimes the other based on context, and there will often be cases in the middle.  Thus I agree that Justice Alito was wrong to dismiss the petitioner's argument out of hand (though it seems likely he was right to conclude that the petitioner had not established a common understanding as of the time of enactment).


A Small Step Forward in Knick
Michael Ramsey

After criticizing the Supreme Court for allowing several constitutional messes to persist on Thursday, I should congratulate the Justices (or rather 5 of them) for cleaning up a small mess on Friday in Knick v. Township of ScottIlya Somin, who filed an excellent amicus brief, celebrates at Volokh Conspiracy: Supreme Court Overrules Precedent that Created "Catch-22" for Property Owners Attempting to Bring Takings Cases in Federal Court. As he explains the case: 

The main point at issue in Knick was whether the Court should overrule Williamson County Regional Planning Commission v. Hamilton Bank  (1985). Under Williamson County, a property owner who contends that the [state or local] government has taken his property and therefore owes "just compensation" under the Fifth Amendment [ed.: actually, under the Fifth Amendment as incorporated by the Fourteenth], could not file a case in federal court until he or she first secured a "final decision" from the relevant state regulatory agency and "exhausted" all possible remedies in state court. Even then, it was still often impossible to bring a federal claim, because various procedural rules preclude federal courts from reviewing final decisions in cases that were initially brought in state court.

The majority, per Chief Justice Roberts, overruled Williamson County and held for the claimant, Knick.

This not really an originalism issue, because it doesn't turn on the original public meaning of a particular phrase.  It is a textualist issue, because Williamson County wasn't based on anything in the text, but was rather something the Court made up.  Williamson County said that a property owner hasn't suffered a constitutional violation until state remedies are exhausted, but that's not what the text says.  As Justice Roberts explained for the majority:

Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it. The Clause provides: "[N]or shall private property be taken for public use, without just compensa­tion." It does not say: "Nor shall private property be taken for public use, without an available procedure that will result in compensation." If a local government takes private property without paying for it, that government has violated the Fifth Amendment [ed.: actually, the Fifth Amendment as incorporated by the Fourteenth; also I'm going to stop making this correction now]—just as the Takings Clause says—without regard to subsequent state court proceedings….

The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner. That principle was confirmed in Jacobs v. United States, 290 U. S. 13 (1933), where we held that a property owner found to have a valid takings claim is entitled to compensation as if it had been "paid contemporaneously with the taking"—that is, the compensation must generally consist of the total value of the property when taken, plus interest from that time.

Or as Justice Thomas wrote in concurrence (quotations and citations omitted):

The Fifth Amendment does not merely provide a damages remedy to a property owner willing to shoulder the burden of securing compensation after the government takes property without paying for it. Instead, it makes just compensation a prerequisite to the government’s authority to take property for public use.  A purported exercise of the eminent-domain power is therefore invalid unless the government pays just compensation before or at the time of its taking. If this requirement makes some regulatory programs unworkable in practice [as the United States argued as amicus] so be it—our role is to enforce the Takings Clause as written.

(It's worth noting that the decision in Knick vindicates Justice Thomas' dissent from denial of certiorari in Arrigoni Enterprises, LLC v. Durham, 136 S.Ct. 1409 (2016), in which he made these arguments and called for overruling Williamson County.  One may assume the Court denied cert. in Arrigoni because there were not five votes to overrule Williamson County at that time.)

Chief Justice Roberts also makes this structural point:

The state-litigation requirement relegates the Takings Clause "to the status of a poor relation" among the provisions of the Bill of Rights. Plaintiffs asserting any other constitutional claim are guaranteed a federal forum under §1983, but the state-litigation requirement "hand[s] authority over federal takings claims to state courts." San Remo, 545 U. S., at 350 (Rehnquist, C. J., concurring in judgment). Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.

Finally, since the standards for overruling precedent has been in the news, I'll add that Williamson County seems to meet Justice Thomas' "demonstrably erroneous" standard.  I think, despite what some commentators have said, that standard could (and perhaps should) be applied in a demanding way.  But even with a demanding standard, Williamson County is pretty hard to defend on textual and structural grounds.  (It got four votes in dissent, though -- mostly on stare decisis grounds, and because I suspect the dissent didn't have much sympathy for the claimant).


A Disappointing Day at the Supreme Court
Michael Ramsey

I'm guessing most people were disappointed by the major opinions yesterday from the Supreme Court (Gundy v. United States on non-delegation and American Legion on establishment). Neither resolved much of anything.  The silver lining, I suppose, is that originalist progress may still be possible.

(A) In the American Legion case, pretty much everyone seems to agree that the Court's approach to establishment clause cases lacks coherence.  One might therefore think that developing a theory of the original meaning of the establishment clause would be a good place to start.  But the Court's multiple opinions in the case don't make any progress.  (Ed Whelan has a good summary here at Bench Memos).  The majority says the memorial cross at issue in the case doesn't violate the establishment clause because it's old.  I do not understand this at all -- either the clause allows municipalities to display large crosses in major highway intersections or it doesn't.  The Court's explanation seems mostly pragmatic (and, as Justice Gorsuch says in concurrence, subject to substantial line-drawing problems: how old is old enough?).  Justice Thomas in concurrence is the only one to grapple with the original meaning, and he largely repeats points he's made before.  Also, Thomas is distracted by his somewhat idiosyncratic view (even among originalists, I think) that the establishment clause isn't incorporated against the states.  Perhaps it isn't, but precedent plainly says it is, and I don't think Thomas has shown that precedent to be "demonstrably erroneous."

This all seems a mess to me, but the silver lining is that it seems self-evidently a mess, so perhaps the pressure will remain to clean it up.  Also, congratulations to my colleague Steven D. Smith, whose article -- saying that the establishment clause cases are a mess -- was cited approvingly by the majority.  (Depressingly, that article was written in 1986).

(B)  At first glance Gundy v. United States looks even worse: the Court rejects a nondelegation doctrine challenge to a law giving effectively unlimited discretion to the President, and apparently thereby foreclosing any hope of reviving originalist constraints on delegation.  But it's not as bad as it seems.  With only 8 Justices voting (it was argued before Justice Kavanaugh joined the Court), there were three clear votes to revisit the doctrine (Justice Gorsuch's originalist dissent, joined by Chief Justice Roberts and Justice Thomas).  Four were opposed.  Justice Alito could have made it an evenly divided court, but he concurred separately to uphold the statute.  Here's the concurrence in full:

The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to delegate them to another branch of the Government. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001). Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. See ibid.

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment. Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years, I vote to affirm.

This sounds like an invitation to try again once Justice Kavanaugh can break the tie.  (Of course, we don't know what he thinks but there are reasons for optimism.)  To me, the most significant point is that the Chief Justice joined Gorsuch's dissent -- previously, I think it was far from obvious that he would support a re-thinking of the nondelegation doctrine.  

Ilya Somin has a somewhat optimistic take here: A Troubling Supreme Court Decision on Non-Delegation.  Adrian Vermuele has a more cynical (but sadly realistic) take at Notice and Comment blog, Never Jam Today, which begins: 

Ever since I started law school in 1990, almost thirty years ago, I’ve been hearing that the Court’s libertarian-legalist conservatives would definitely invalidate some statute or other on nondelegation grounds, any day now, without question. This eschatological hope isn’t some recent development. It’s the ordinary state of conservative jurisprudence, the perpetual “Soon! But not yet” of conservative constitutional parousia. At a certain point, one saw a sign in the East — Justice Rehnquist’s concurrence in the Benzene case, combined with certain dicta in the majority opinion! At another point, one saw a portent in the West — Justice Scalia’s powerful dissent in Mistretta! And at every one of these points, people insisted that this time it’s all different, the ground is shifting, it’s really happening!

And yet somehow, when push came to shove, when it was a question of actually assembling five votes to declare a federal statute unconstitutional on grounds not invoked for decades, grounds that would threaten to destabilize much of the modern administrative state — when it came time to act, as opposed to venting one’s constitutional frustrations in concurrence and dissents — well, it never did quite happen. Justice Scalia’s Mistretta dissent became his brusque opinion in Whitman v. American Trucking, sweeping aside a serious nondelegation challenge to the Clean Air Act. Jam yesterday (yesterday being 1935), and jam tomorrow, but never jam today.


Adam White Reviews Myron Magnet's "Clarence Thomas and the Lost Constitution"
Michael Ramsey

At Commentary, Adam J. White: Lest Ye Be Judged -- Review of 'Clarence Thomas and the Lost Constitution' By Myron Magnet.  From the introduction: 

In nearly two and a half centuries of American constitutionalism, from 1776 to today, the words that are most difficult to understand yet crucial to our republic are found in Abraham Lincoln’s first inaugural address. Reflecting upon the Supreme Court’s infamous pro-slavery decision in Dred Scott v. Sandford (1857), Lincoln observed that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Here we find the fundamental paradox of American constitutionalism, which contains both republican self-government and the rule of law. The rule of law requires judicial power and independence. But republicanism requires that these powerful and independent judges be made the people’s servants, not their masters. Lincoln venerated the Constitution, willing even to wage war against the Southern states in order to preserve it. But Lincoln rejected the suggestion that judges are our final arbiters in announcing the Constitution’s meaning; that obligation fell to the people themselves, for the sake of both republican self-government and the rule of law. 


Jesse Snyder: How Textualism Has Changed the Conversation in the Supreme Court
Michael Ramsey

Jesse Snyder (independent) has posted How Textualism Has Changed the Conversation in the Supreme Court (University of Baltimore Law Review, Vol. 48, No. 3, 2019) (23 pages) on SSRN.  Here is the abstract: 

This paper argues that Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22 (2018) is a sleeper decision that should receive greater appreciation and reflection because the method of statutory interpretation on display seemingly caped a transition of displacement from divining intent through a variety of sources — including legislative history — to wholesale reliance on the statutory text. That Mount Lemmon passed without comment shows how far textualism has come in 30 years. In two parts, this article first introduces how textualism as an interpretative method began to shape and take hold as a dominate approach to legal reasoning in the Supreme Court. This article then examines how appellate courts, without the benefit of the Supreme Court’s conclusive endorsement of textualism, have approached the question presented in Mount Lemmon. The final section studies Mount Lemmon and observes what the decision means for litigants. Mount Lemmon enshrines a break from decisions dating from the founding era through the 1970s, making risible in the Supreme Court usage of once-unexceptionable advocacy based on pragmaticism and extratextual considerations. The decision shows that, for the mine-run of cases, the interpretative process in the Supreme Court begins — and unless compelling reasons counsel otherwise — ends with the text. The pendulum has swung, and the movement appears to have reached a near-apex resting point. Whether that resting point comes an inflection point toward something else remains unanswered. Yet it should not be lost that Mount Lemmon delivered a viable progressive victory to aggrieved employees. So while textualism is generally extolled as a conservative appellation, the right arguments can, in some cases, produce victories no matter the cause.

Agreed!  (But it's not quite true that the Mt. Lemmon decision "passed without comment"!)


George Will and the Ninth Amendment
Andrew Hyman

I agree with Mark Pulliam that George Will has adopted an erroneous interpretation of the Ninth Amendment "hook, line, and sinker," in Will’s new book The Conservative Sensibility.  As I understand Mr. Will, he thinks the Ninth Amendment means this:
The Constitution shall not be construed to deny or disparage natural rights of the people, including but not limited to natural rights that it enumerates.

If that’s what the Ninth Amendment really said, then I agree it would authorize the judiciary to identify and protect any and all unenumerated natural rights, as enforceable limitations upon the powers of Congress.  In reality, though, the Ninth Amendment is not a rule about how to construe the whole Constitution, and instead is only a rule about how to construe the rights (not the powers) listed in the Constitution:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

The whole point of enumerating powers is to deny and disparage certain legal rights, and it would have been silly to prevent that, though very easy for the framers to do.  As the Supreme Court has said, “If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."  This is not to say that the Ninth Amendment recognizes and protects no unenumerated rights at all; it certainly does, but only unenumerated rights that Congress has no power to infringe.  In other words, the intention of the Ninth Amendment is to counteract the notion that listing a series of legal rights means no other legal rights are likewise beyond the reach of a Congress that dislikes them.

The best way to legitimately protect the unenumerated rights recognized by the Ninth Amendment is to make sure Congress stays within its enumerated powers.  Even then, there will inevitably be abuse by Congress, but, as Madison once said, "No Constitution could be lasting without a habitual distinction between an abuse of legitimate power and the exercise of a usurped one."  A big part of legislating is distinguishing between right and wrong, and if a method of selecting legislators is not conducive to that goal, then it can be improved, rather than surrendering to a judicial usurpation of all fundamental issues.
Mr. Will warns at page 209 against the notion that "the framers were slapdash draftsmen...."  Fair enough.  However, Mr. Will’s description of Robert Bork is inaccurate; Bork did not rule out that the Ninth Amendment may have been well-drafted to accomplish a clear purpose (it was).  Here is what the Ninth Amendment is very clear about: if some prosecutor alleges that a defendant has no right to drive a car because that right is not listed in the Constitution, or if another crazy prosecutor alleges that Congress may bar everyone nationwide from wearing hats because there is no such right listed in the Constitution, then clearly the Ninth Amendment rebuts those prosecutors.  The framers easily could have —- but did not —- establish in the Ninth Amendment a rule for construing the original enumeration of powers in the Constitution, either by expanding or narrowing those original powers.
Mr. Will discusses the right to wear hats at page 209 of his new book, and it looks to me like he favors federal judicial control of governmental power over that issue, and many other issues that the framers actually left to local governments and their citizens.  I agree with Mr. Will to a certain extent: judges ought to restrain Congress from forbidding the wearing of hats that were manufactured inside the state or lawfully brought into the state.  But no hat-right is generally enforceable in the District of Columbia if Congress has endorsed a hat-wearing prohibition, because Congress has plenary power in the District.  Likewise, a hat-right is not generally enforceable by federal courts against state governments, given that such a right is neither enforceable against Congress nationwide, nor enumerated in the Federal Constitution. Of course, a hat-right is sometimes enforceable against both the states and Congress as an exercise of religion or of free speech, but Congress and the states still have legal power to ban hat-wearing under some circumstances; it’s laudable that they have never tried to make the most of that power, which goes to show that majority-rule often reinforces liberty (and other natural rights).  Mr. Will contends at page 266 that liberals wrongly seek to "give majority rule priority over liberty," but actually liberals love doing the opposite with regard to social issues, so that liberal judges can deploy "substantive due process" as a way of defeating pesky majorities. Giving priority to neither one seems like the best way to protect both.
Mr. Will’s book circumnavigates the real meaning of the Ninth Amendment, probably because he has given up on the idea of a Congress having limited and enumerated powers, which he calls (at page 27) "dead as a doornail...." It’s true that the economy of the United States has become interwoven across state boundaries in stark contrast to the economy of 1787, and so congressional power to regulate interstate commerce has unavoidably grown.  But a reasonable jurisprudence would still put much state legislation off limits to congressional interference, whereas Mr. Will’s ahistorical and atextual theory of the Ninth Amendment would allow federal judges to legislate natural rights without any textual limits on the judges, or any input by Congress or citizens.  Over the long run, such judicial coercion might win popular majorities, perhaps because the judges were wiser than the majority, or instead because socialization and conformity are more pleasant for citizens than futile anger and despair.

Dueling Originalists (and Justice Thomas on Stare Decisis) in Gamble v. United States
Michael Ramsey

The Supreme Court's decision Monday in Gamble v. United States confirms the validity of the "dual sovereigns" doctrine: that successive prosecutions in state and federal court for the same conduct do not violate the Constitution's double jeopardy clause because the clause only bars successive prosecutions by the same government.   The majority, by Justice Alito, and Justice Gorsuch's dissent are both strongly textualist and originalist, covering much of the same ground but drawing different conclusions on the original meaning of the clause.  Both seem to acknowledge that the evidence cuts both ways; for the majority, it seems, the main point is that the evidence is not strong enough to overcome existing Court precedent endorsing the doctrine.

Commentators may say that Gamble's outcome is problematic for originalism, but I think not.  Contrary to caricatures, originalism does not contend that there are always clear answers.  Sometimes, perhaps often, the textual and historical evidence will point in different directions.  That does not defeat originalism as a theory, because originalism at minimum only says that when the textual and historical historical evidence provides clear direction, they should be followed.

But nonetheless practical originalists need a way to approach a situation in which the textual and historical evidence does point in different directions.  The majority and especially Justice Thomas' concurrence point to part of the solution.  The majority says, not that Gamble's historical evidence carried no weight, but that it did not carry enough weight to justify overruling prior decisions.

Thomas' long concurrence is particularly significant.   Thomas begins:  "I agree that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine."  This in itself is a wise and appropriate position for an originalist.  One may have intuitions about the correct historical meaning of a clause, but without full investigation one cannot be sure, and often full investigation will lead to a different conclusion; it is surely appropriate to recognize and indeed celebrate this.

He makes the further point that successive state and federal prosecutions likely were not seen as a pressing problem in the founding era because relatively little overlap was anticipated:

As the Court suggests, Congress is responsible for the proliferation of duplicative prosecutions for the same offenses by the States and the Federal Government. By legislating beyond its limited powers, Congress has taken from the People authority that they never gave. ... And the Court has been complicit by blessing this questionable expansion of the Commerce Clause. ... Indeed, it seems possible that much of Title 18, among other parts of the U. S. Code, is premised on the Court’s incorrect interpretation of the Commerce Clause and is thus an incursion into the States’ general criminal jurisdiction and an imposition on the People’s liberty.
But he's just getting started: most of the concurrence addresses the Court use of stare decisis, and he advances the proposition that the Court should not and indeed constitutionally cannot give stare decisis effect to what the calls "demonstrably erroneous precedent" (taking the phrase from Caleb Nelson's article Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1 (2001)).  Thomas concludes: 
In sum, my view of stare decisis requires adherence to decisions made by the People—that is, to the original understanding of the relevant legal text—which may not align with decisions made by the Court. ... Thus, no “special justification” is needed for a federal court to depart from its own, demonstrably erroneous precedent.  Considerations beyond the correct legal meaning, including reliance, workability, and whether a precedent “has become well embedded in national culture,” S. Breyer, Making our Democracy Work: A Judge’s View 152 (2010), are inapposite. In our constitutional structure, our role of upholding the law’s original meaning is reason enough to correct course.
To this strong view he adds two important reservations.  First: 
I am not suggesting that the Court must independently assure itself that each precedent relied on in every opinion is correct as a matter of original understanding. We may, consistent with our constitutional duty and the Judiciary’s historical practice, proceed on the understanding that our predecessors properly discharged their constitutional role until we have reason to think otherwise—as, for example, when a party raises the issue or a previous opinion persuasively critiques the disputed precedent.
And second:
Although precedent does not supersede the original meaning of a legal text, it may remain relevant when it is not demonstrably erroneous. ... Written laws “have a range of indeterminacy,” and reasonable people may therefore arrive at different conclusions about the original meaning of a legal text after employing all relevant tools of interpretation. It is within that range of permissible interpretations that precedent is relevant. ... Of course, a subsequent court may nonetheless conclude that an incorrect precedent should be abandoned, even if the precedent might fall within the range of permissible interpretations. But nothing in the Constitution requires courts to take that step.
This is a powerful and important opinion that can't effectively be summarized in a few quotes.  I expect it will generate much commentary.


Ken Kersch Responds to Symposium Commentary on "Conservatives and the Constitution"
Michael Ramsey

At Balkinization, Ken Kersch has several responses to the symposium on his book Conservatives and the Constitution:

The Other Side of the Mountain: Restoration, Redemption, and Originalism

Ayn Rand, Gary Lawson, and the Supreme Court

From the introduction to the latter:

Gary Lawson has contributed two provocative, engaging, and very interesting posts for the symposium on my book Conservatives and the Constitution.   What follows is a response to the first first, and the second second.
Gary’s first, more general post responds to Conservatives and the Constitution in light of his own significant experiences as a conservative legal movement insider at the highest levels, including as a clerk to Antonin Scalia on both the D.C. Circuit and on the Supreme Court, in the Office of Legal Counsel at the height of the Reagan administration, and as a founder of The Federalist Society.  Gary reports that he and his friends mostly had not read Leo Strauss, Richard Weaver, or John Courtney Murray.  This does not surprise me, nor is it inconsistent with the thesis of my book.  My argument is that the different parts of the movement had their own touchstones for their framings and political and economic philosophies (or, to touch base with Gary’s second post, their own metaphysics and epistemologies).   Gary’s deep background in Rand and Ludwig von Mises fit who he was.  That of Right-Wing Catholics would fit who they were.  And that of evangelical Christians would fit who they were.  I would not expect those from each of these different parts of the coalition to know the entire breadth and scope of the thought of the others.   That is why I argue that they came to coalesce around the common language of legalist originalism:  it came to serve as a common ground, and a basis for distinguishing their allies from their opponents, or even their enemies.  That is my argument, or at least an important part of it.    


Aaron Gordon: Nondelegation
Michael Ramsey

Aaron Gordon (Yale University, Law School, Students) has posted Nondelegation (NYU Journal of Law & Liberty, Vol. 12, No. 3, 2019) (68 pages) on SSRN.  Here is the abstract:

The U.S. Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.” Today, however, the foremost source of rules governing private conduct at the federal level is not Congress, but administrative agencies. The U.S. Code is replete with provisions authorizing agencies to issue regulations carrying the force of federal law, a fact about which the federal judiciary seems largely unconcerned. But this was not always so. Prior to its New-Deal era jurisprudential shift, the U.S. Supreme Court at least purported to take seriously the Nondelegation Doctrine, a principle of constitutional law holding that Congress violates the separation of powers when it delegates authority so open-ended as to be essentially “legislative” in nature. However, since the mid-1930s, the Court, while never explicitly abandoning the Nondelegation Doctrine, has effectively weakened it to the point of irrelevancy.

Here, I argue that the Nondelegation Doctrine has a firm foundation in the Constitution’s original meaning. While several commentators have undertaken similar projects, I contribute to existing literature by compiling the scattered historical evidence into a single comprehensive account, including a considerable amount of evidence that seems to have been overlooked in prior scholarship; and by responding to historical analyses expressing the contrary view. I then devise a historically-grounded judicial test for determining whether an unlawful delegation has occurred. Next, I present an argument in favor of the Nondelegation Doctrine based on constitutional structure and policy considerations. Finally, in recognition of the potential disruption a revived Nondelegation Doctrine would present for our system of government, I propose and evaluate a few compromise approaches in which courts would enforce a limited form of the Nondelegation Doctrine without a total upheaval of the modern administrative state.


New Book: The Conservative Sensibility by George Will
Michael Ramsey

At Law and Liberty: Borne Back to the American Founding: A Conversation with George Will (discussing his new book The Conservative Sensibility (Hachette Books 2019)).

Here is the book description from Amazon: 

From the Pulitzer Prize-winning columnist, an "astonishing" and "enthralling" (Booklist) new examination of how the Founders' belief in natural rights created a great American political tradition--"easily one of the best books on American Conservatism ever written" (Jonah Goldberg).

For more than four decades, George F. Will has attempted to discern the principles of the Western political tradition and apply them to America's civic life. Today, the stakes could hardly be higher. Vital questions about the nature of man, of rights, of equality, of majority rule are bubbling just beneath the surface of daily events in America. 

The Founders' vision, articulated first in the Declaration of Independence and carried out in the Constitution, gave the new republic a framework for government unique in world history. Their beliefs in natural rights, limited government, religious freedom, and in human virtue and dignity ushered in two centuries of American prosperity. Now, as Will shows, conservatism is under threat--both from progressives and elements inside the Republican Party. America has become an administrative state, while destructive trends have overtaken family life and higher education. Semi-autonomous executive agencies wield essentially unaccountable power. Congress has failed in its duty to exercise its legislative powers. And the executive branch has slipped the Constitution's leash. 

In the intellectual battle between the vision of Founding Fathers like James Madison, who advanced the notion of natural rights that pre-exist government, and the progressivism advanced by Woodrow Wilson, the Founders have been losing. It's time to reverse America's political fortunes. 

Expansive, intellectually thrilling, and written with the erudite wit that has made Will beloved by millions of readers, The Conservative Sensibility is an extraordinary new book from one of America's most celebrated political writers.

(Thanks to Mark Pulliam for the pointer, who comments: "George Will adopts the Barnett/Sandefur thesis on constitutional theory, hook, line, and sinker.")


Louis Fisher: Presidential Residual Power in Foreign Affairs
Michael Ramsey

Recently published, in the Capital University Law Review, Louis Fisher (Scholar in Residence at the Constitution Project, formerly Specialist in Constitutional Law at the Law Library of Congress): Presidential Residual Power in Foreign Affairs (47 Cap. U. L. Rev. 491 (2019)).  Here is the abstract: 

At times, Presidents have claimed “inherent” powers, but those assertions have been repudiated by both the Supreme Court and Congress. In Zivotofsky v. Kerry, Justice Clarence Thomas referred to another source of presidential power: a “residual foreign affairs power.” This article analyzes the origin and legitimacy of presidential residual powers, a term that has at least six different meanings.

I agree with a lot more of this article than one might expect, considering it is a critique of the residual powers theory that I endorse.  


William Baude & Stephen Sachs: Originalism and the Law of the Past
Michael Ramsey

William Baude (University of Chicago - Law School) and Stephen E. Sachs (Duke University School of Law) have posted Originalism and the Law of the Past (Law and History Review, Vol. 37, No. 3 (forthcoming 2019)) (12 pages) on SSRN.  Here is the abstract:

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law—which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might otherwise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught—and no more so—than applying Founding-era legal doctrines.

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


Northwestern Law Review Symposium "Originalism 3.0"
Michael Ramsey

Recently published: the Northwestern University Law Review's Symposium "Originalism 3.0" (Special Issue 2019, Vol. 113, No. 6).  Many of the essays have already been featured on this blog when posted to SSRN, but I think not these two:

Steven G. Calabresi, Originalism and James Bradley Thayer, 113 Nw. U. L. Rev. 1419 (2018).

This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s thesis on multiple levels, pointing out important aspects of the original understanding that the Framers would have had of the meaning and origins of the U.S. Constitution, as well as disputing Professor Thayer’s discussion of the history of American judicial review from 1790 to the publication of his book in 1893. I conclude that no person can be both an originalist and a Thayerian. The two theories contradict one another and cannot be jointly adhered to. I then explain why I prefer originalism to Thayerianism as a normative matter.

Bernadette Meyler, Originalism and a Forgotten Conflict over Martial Law, 113 Nw. U. L. Rev. 1335 (2018).

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated shaped discussions about rights in ways that originalism should address. In particular, colonists argued with colonial officials both explicitly and implicitly about the extent to which statutes as well as common law applied in the colonies. These contested statutory schemes should affect how we understand constitutional provisions: for example, they might suggest that statutes pertaining to martial law should be added to those treating habeas corpus as a backdrop against which to interpret the Suspension Clause. Furthermore, the conflict showed the significance to members of the Founding generation of the personnel applying law, whether military or civilian, rather than the substantive law applied; this emphasis could also be significant for how we interpret constitutional rights.

The other essays are:

John O. McGinnis and Michael B. Rappaport, Unifying Original Intent and Original Public Meaning, 113 Nw. U. L. Rev. 1371 (2018).

William Baude and Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455 (2018).

Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2018).

Thomas B. Colby, Originalism and Structural Argument, 113 Nw. U. L. Rev. 1297 (2018).


Scholars' Letter on the Yemen Conflict
Michael Ramsey

In a prior post, I referred to a scholars' letter regarding the conflict in Yemen: Is the Yemen Conflict Unconstitutional? The letter is now publicly available here, via Ilya Somin at Volokh Conspiracy, who has further comments: Legal Scholars' Letter on Initiating a Congressional Lawsuit to End Illegal US Role in the Yemen War.  In addition to me and Professor Somin, the signers are Bruce Ackerman (Yale), the principal drafter; Richard Albert (Texas); Rosa Brooks (Georgetown); Erwin Chemerinsky (Berkeley); Mary Dudziak (Emory); Michael Glennon (Tufts); Jon Michaels (UCLA); Mary Ellen O'Connell (Notre Dame); Aziz Rana (Cornell); Scott Shapiro (Yale); and Ruti Teitel (New York Law School).

From my prior post:

The hard question, I think, it whether the U.S. involvement in Yemen is a "war" for constitutional purposes.  Of course I think that under the Constitution's original meaning only Congress has the power to initiate war (or authorize the President to initiate it).  It seems implausible that Congress has authorized the Yemen action, both because of the recently vetoed bill but even more so because the Yemen rebels appear to have nothing to do with al Qaeda.  (Congress' 2001 authorization to use force against al Qaeda and its allies appears to be the only remotely plausible basis of congressional authorization).   I also think it is appropriate for courts to decide some (though not all) war powers questions, as discussed here.  So that leads back to the question whether the U.S. is engaged in "war" in Yemen.  And that depends both on facts on the ground (which may be somewhat uncertain) and on the difficult question of when military support for an ally becomes a war.  (It's much less clear in Yemen than, for example, with respect to President Obama's intervention in Libya, which I discussed in this article).  But in any event it seems entirely appropriate for Congress to raise objections.

Responses on Courts and Impeachment
Michael Ramsey

In a prior post I partially seconded Alan Dershowitz's suggestion that the courts might have a role in reviewing impeachments, despite the political question doctrine.  David E. Weisberg writes in response:

Scholars have argued that the Court has the constitutional power to review articles of impeachment with a view toward answering one narrow question: whether the acts or omissions cited in the articles qualify as “high Crimes and Misdemeanors” (abbreviated hereafter as “hC&M”) within the meaning of Article II, Section 4.  The question of the Court’s power under the Constitution is, I think, inappropriate and ultimately irrelevant.  What is relevant is whether, in light of the political question doctrine, that one narrow question is justiciable, that is, whether the Court should answer it.  The Court should not.  

Consider, first, the procedural posture in which the “hC&M” question might arise.  The supporters of Court intervention seemingly assume that that question would be considered by the Court immediately after the House adopts the articles of impeachment, but that probably would not be the case.  The president (perhaps having mistakenly predicted the Senate would acquit) might not file a petition until after conviction.  Moreover, from the standpoint of litigation tactics, waiting until after Senate trial would give the president two bites at the same apple: he could argue to the Senate that the articles do not allege “hC&M”, but, if he failed, he could still raise the same objection before the Court.  If he petitions the Court before trial, he gets only one bite. 

Finally, even if the petition were filed before Senate trial, the Court, relying on a principle of exhaustion of remedies, should reject the petition as premature.  I assume (and fervently hope) the Court would be extraordinarily cautious about entering the impeachment arena.  If the Senate held a trial and rejected all articles, the “hC&M” issue would be mooted.  (It couldn’t credibly be argued that trial in the Senate itself irreparably injures the president; both Andrew Johnson and Bill Clinton discharged their duties after such trial.)  It’s therefore likely the president’s petition would be entertained only after conviction in the Senate.

So, would the political question doctrine prohibit the Court from deciding whether the articles alleged “hC&M” within the meaning of the Constitution?  Everyone begins with Marbury v. Madison and Chief Justice Marshall’s statement that it is the duty of the courts “to say what the law is.”  He goes on to say: “If two laws conflict with each other, the Courts must decide on the operation of each.  So, if a law be in opposition to the Constitution, … the Court must determine which of these conflicting rules governs the case.  This is of the very essence of judicial duty.”  (5 U.S. 177-178.)  Thus, a court is duty-bound “to say what the law is” where two laws conflict, and that is particularly the case where a law arguably conflicts with the Constitution. 

But, in adopting articles of impeachment, the House does not enact a law; in finding the president guilty of “hC&M,” the Senate does not enact a law.  In neither case is either body enacting legislation.  In reviewing the House’s articles of impeachment or the Senate’s verdict of guilt, the Court would not be exercising “the very essence of judicial authority.”  It does not follow, of course, that the Court may not undertake such reviews, but it is nevertheless true that those reviews would fall outside “the very essence of judicial authority.”

[N.B. The first sentence of Article II is: “The executive Power shall be vested in a President[.]”  The first sentence of Article III is: “The judicial Power of the United States shall be vested in one supreme Court[.]”  But the first sentence of Article I is: “All legislative Powers herein granted shall be vested in a Congress[.]”  The implication is that non-legislative powers are also granted in Article I.  The House’s impeachment power, and the Senate’s power to try impeachments, are certainly instances of non-legislative powers.]

The most important precedent regarding the political question doctrine is Baker vCarr, 369 U.S. 186, 217 (1962), where the Court summarized its findings as follows: 

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The summary lists six separate hallmarks of a non-justiciable political question.  The first three of the four hallmarks discussed below would be present whether the Court considered the “hC&M” issue before or after Senate trial; the last would apply particularly to post-trial consideration. 

The three-word phrase “the sole Power” appears exactly two times in the Constitution: “The House…shall have the sole Power of Impeachment” (Art. I, Sec. 2), and “The Senate shall have the sole Power to try all Impeachments” (Art. I, Sec. 3).  That phrase, used exclusively in connection with the impeachment process, is, I think, a “textually demonstrable constitutional commitment” of that process to the two houses of Congress, excluding the judicial branch entirely.

Secondly, the Court’s independent resolution of the “hC&M” question would necessarily disrespect the House. That disrespect would be compounded by disrespect for the Senate if the Court took up the question after the Senate had voted to convict.

Thirdly, there is always “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”  In adopting articles of impeachment, a majority of the House pronounces that those articles allege genuine “hC&M.”  In a finding of guilt, two-thirds of the Senate makes the same pronouncement.  If the Court decides otherwise, whether before or after trial, we have the “multifarious pronouncements” the political question doctrine seeks to avoid.

Finally, if considered after conviction in the Senate, the votes of a majority of the House and two-thirds of the Senate to remove the president engender “an unusual need for unquestioning adherence to a political decision already made.”  No president has ever been convicted in the Senate.  It would be folly for the Court to reverse (perhaps by a 5 to 4 vote) a political decision of such historic magnitude.

And this from Devin Watkins:

To me the word “sole” was clearly intended to withdraw such questions from judicial authority. And the reason for that is quite clear, impeachment is a check on the judiciary. What if the Supreme Court justices think that their own impeachment was improperly conducted (or that of their fellow justices)? It simply is not appropriate for the judiciary to be ruling on the authority to remove their fellow judges, and it is for that reason that the word “sole” was used to withdraw that from judicial authority. Most of the other uses of the so-called “political question” doctrine are often overused, but this is one situation in which the Constitution itself puts within the sole discretion of Congress. The words “high crimes and misdemeanors” are then standard for Congress to evaluate and decide if the President’s conduct meets that standard, but its decision is final.

I don’t see how anyone can read Federalist No. 65 and come to the conclusion that the Supreme Court has any role to play in an impeachment producing (besides the Chief Justice presiding over the trial). It repeatedly states that the Supreme Court could not be trusted with such a power, and that the Senate is the appropriate place for that power. For instance, “These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments.”

Also, at Lawfare, Keith Whittington responds to Professor Dershowitz: Alan Dershowitz Is Wrong About Impeachments.



Ilya Somin on Justice Stevens' Error in Kelo v. City of New London
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Justice Stevens Admits Error in the Kelo Case—but also Doubles Down on the Bottom Line.  From the introduction:

In his recently published memoir, The Making of a Justice: My First Ninety Four Years, retired Supreme Court Justice John Paul Stevens includes an extensive discussion of his majority opinion in Kelo v. City of New London (2005).  The  Takings Clause of the Fifth Amendment indicates that the government may only take private property for a "public use." In Kelo, a narrow 5-4 Supreme Court majority ruled that almost any potential public benefit qualifies as "public use," thereby permitting the City of New London to take fifteen residential properties for purposes of transfer to a new private owner in order to increase "economic development."


In his memoir, Stevens fortrightly acknowledges one [error]: serious misinterpretation of relevant precedent. Stevens' majority opinion in Kelo relies heavily on the claim that its very broad definition of "public use" is backed by "more than a century" of precedent. That assertion is false. The nineteenth and early-twentieth-century cases cited by Justice Stevens  as support for extreme judicial deference under the Public Use Clause in fact addressed public use challenges under the "Lochner-era" doctrine of "substantive" due process applying the Due Process Clause of the Fourteenth Amendment. During that period, the Supreme Court had not yet recognized that the Fifth Amendment applied against state governments. Thus, the only way for property owners to challenge a state or local government taking in federal court was under the Due Process Clause.

And from later on:

Despite this notable concession, Stevens continues to believe that Kelo was rightly decided. But his new rationale for the decision is completely different from the one offered in his majority opinion for the Court. He now argues that the Takings Clause of the Fifth Amendment does not constrain the purposes for which the government can condemn property, at all.

This rationale (previously advanced by a few legal scholars) is actually much more dubious than the broad definition of "public use" Stevens advocated in the Kelo decision. Among other things, it really is at odds with not just one century of judicial precedent, but two. While there is longstanding disagreement between advocates of  broad and narrow definitions of public use, two centuries of state and federal judicial precedent hold that "public use" imposes at least some constraint on the reasons for which government may condemn private property.

RELATED:  At Law & Liberty, John McGinnis reviews Justice Stevens' book: Stevens’ Jurisprudence of Facts Is No Substitute for One of Principle.  In conclusion:

In many ways, Stevens embodied both the qualities and blinds spots of one who came of age in Second World War. He possessed the devotion to duty that characterized his generation. But he also had an overconfidence that the consensus forged in World War II would carry on indefinitely. That consensus encouraged him to think that most everyone would regard the facts as he did, permitting him to believe that a jurisprudence of facts could substitute for a jurisprudence of principle.


Symposium on "Conservatives and the Constitution" by Ken Kersch
Michael Ramsey

At Balkinization, a symposium on Ken Kersch, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press 2019).

Of particular originalist interest:

Ann Southworth, The Power of Constitutional Frames

Mark Tushnet, Originalism in Political Science and Law

Gary Lawson, Right About the Constitution

From the latter: 

... I have spent the better part of forty years immersed, as a welcomed outsider, in the conservative legal world.  During that time, I have had extensive conversations, often spanning many hours at a time, with conservatives of numerous stripes and backgrounds.  This has happened in all kinds of settings, ranging from academic fora to clerkships to home life (I have been housemates with conservatives on multiple occasions).  These conversations have covered topics ranging from constitutional theory to public policy (including abortion, on which I am at least partially pro-choice) to religion (I profess none) to ethical theory (I’m a Randian) to epistemology and metaphysics (ditto).  I emerged from those forty years of spectacularly rich and high-level discussions knowing nothing at all about Leo Strauss, Harry Jaffa, Francis Schaeffer, John Courtney Murray, Bishop Sheen, Richard Weaver, Russell Kirk, Eric Voegelin, or just about any of the other luminaries who fill up Ken’s volume.  Yes, I had heard a few of those names (like Strauss and Voegelin) come up in passing in a few conversations, but until a few months ago I could not have written a coherent paragraph about any of them.  Even when discussion with my conservative friends turned to first philosophy or life-and-death issues, those names simply did not come up (though C.S. Lewis and Frank Meyer came up with some regularity, as I recall).
To be sure, I was hanging around with Federalist Society folks, who emphatically are not the subjects of Ken’s book.  But surely those folks, especially the generations of folks that I encountered in the 1980s and 1990s, when I had most of these conversations, would be familiar with the broad thrusts, and quite possibly the intricate details, of the intellectual threads that Ken chronicles.  And those folks are the people who became, might become, or had something to do with the coming and becoming of others as, judges.  They did not speak, even in private, the language that Ken describes.  Accordingly, when Ken predicts that “[i]t may soon be the case that we will not be able to understand even conservative judges and their approach to textual interpretation and judicial role and duty without an appreciation for the deeper restorationist or redemptivist visions in which they have long been embedded, and their elaborately constructed historical memories, principles, and philosophies” (363), I think he is mistaken – or at least the prediction is not supported by the available evidence.
Agreed.  The extent to which the conservative political science world does not interact with the conservative legal world, and vice versa, is astounding.


Bernadette Meyler: Common Law Confrontations
Michael Ramsey

Bernadette Meyler (Stanford Law School) has posted Common Law Confrontations (Law and History Review, forthcoming) (34 pages) on SSRN.  Here is the abstract:

Through the 2004 case of Crawford v. Washington and subsequent decisions, the U.S. Supreme Court transformed its account of the requirements of the Confrontation Clause of the Sixth Amendment of the Constitution. In doing so, the Supreme Court employed originalist methods and relied heavily on its assumptions about the Constitution’s common law backdrop. The Court and scholars defending its historical account claim, in particular, that, by the time of ratification of the Bill of Rights, any earlier exceptions to confrontation within common law practice had been eliminated unless a defendant enjoyed the opportunity to cross-examine the witnesses during a pretrial proceeding. 

The Court’s story neglects the possibility that the Confrontation Clause might protect values apart from cross-examination and, furthermore, relies almost exclusively on British rather than American eighteenth-century practice. This symposium essay examines archival records of pretrial proceedings in colonial New Jersey as well as the sessions of the Court of Oyer and Terminer in order to reconstruct colonial criminal practice in at least one jurisdiction. These historical materials contain many pretrial examinations lacking any indications of cross-examination. They also suggest that depositions taken before trial may have been used in court in various instances when the witnesses failed to appear. The essay thereby calls into question the Court’s assumptions about eighteenth-century common law and its resulting interpretation of the Confrontation Clause. 


Gregory Ablavsky: The Coming of Dual Federalism
Michael Ramsey

Recently published, in the Yale Law Journal: Gregory Ablavsky (Stanford), Empire States: The Coming of Dual Federalism (128 Yale L.J. 1792 (2019)).  Here is the abstract: 

This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization—a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.

In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, and separatist movements.

The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors—an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism—became questions of vertical federalism, issues of whether federal authority would vindicate states or their opponents.

Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.


Originalism and Article III Judicial Power
Mike Rappaport

One of the most difficult challenges for originalism is to determine to what extent the Constitution limits the adjudication of matters by entities other than Article III federal courts.

This is an especially timely issue, because there is an important debate about the administrative state, and a significant part of the administrative state involves adjudication in administrative agencies or in legislative courts.  While the language of the Constitution appears to place real limits on adjudication in these non-article III entities, government practice from the early years of the Constitution appears inconsistent with that interpretation of the constitutional language.

But here comes a new article by originalist scholar, Will Baude, who has employed his formidable talents to understand the Constitution’s original meaning in this area.  Baude provides an interpretation of the constitutional text that accounts for the government practice, but still understands the language as imposing significant limits on adjudication outside of Article III federal courts.

Text versus History   

The basic issue in this area is that the constitutional text seems to create no exceptions to requiring federal adjudications to be in Article III courts.  The Constitution provides that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”  This language seems to suggest that all adjudications made by federal entities need to be made by Article III courts.  Since the Constitution requires that judges of these courts be given independence and life tenure, this would render much adjudication by administrative agencies and Article I courts unconstitutional.

But historically federal adjudications outside of Article III courts appeared to exist from the beginning.  So, if the Framers’ generation understood the Constitution that they wrote, how could they have created these exceptions?

There are two extreme approaches to these matters.  Some people have argued that the Framers’ generation simply did not understand the Constitution they enacted.  Thus, the historical departures from the separation of powers are unconstitutional.  The other approach suggests that the historical departures are constitutional and that they allow for other departures as well.  Under this view, the judicial power vesting clause would not place significant limits on what adjudications must be put in Article III federal courts.

Baude avoids these two unattractive positions.  The main intellectual move he makes is to argue that “the judicial power of the United States” should not be understood as referring to a procedure that resembles adjudication.  Instead, the term is primarily about exercising a type of power.  Thus, the fact that administrative law judges or other non-article III actors are taking actions that appear similar to those taken by courts does not matter.  Instead, the question is what type of power government actors are exercising rather than the procedures that they are following.

Territorial Courts

One longstanding exception to the requirement that federal adjudications take place in Article III courts is territorial courts.  In the early United States, a large portion of the country was comprised of territories that were not yet states.  The Supreme Court opined that such courts did not need to be Article III courts, even though they were established by the federal government.  How could that be?

Baude argues that these territorial courts were exercising judicial power, but were not exercising the judicial power of the United States.  Instead, they were exercising the judicial power of their territory.  He presents historical evidence that this is how people understood these courts.  The courts of the territory of Florida were exercising the judicial power of Florida.  Thus, they did not need to be Article III judges.  This also explains why other courts, such as the D.C. Courts and the Indian Courts, do not need to have Article III judges.

Administrative Agencies

A second exception involves adjudications by administrative agencies.  These adjudications can involve government benefits and military tribunals.  Baude sees these type of adjudications as not exercising the judicial power at all.  Instead, they exercise executive power.

Baude argues that adjudications of government benefits, such as public lands or welfare benefits, do not need to be in Article III courts.  Either under the Due Process Clause or Article III, common law rights, such as property, contract, and tort, must be adjudicated in federal courts.  But government benefits do not need to be in such courts.  Thus, it was within Congress’s authority to choose to place the adjudication of such benefits in administrative agencies that exercise executive power.

A similar story applies to two other exceptions.  While military tribunals do not involve government benefits, adjudications involving the military were held in ordinary courts even prior to the Constitution.  And, thus, this historical exception was incorporated into our charter.  Similarly, Baude argues that temporary deprivations of common law rights also did not need to be in Article III courts.  For example, in the famous case of Murray’s Lessee, the government’s action against a collector did not initially need to be in federal court, because the collector could file an action in federal court that would fully review the government’s decision.

These exceptions are significant, but notice that they are limited.  The federal government cannot simply put any matter into an administrative agency.  In particular, common law rights, such as operating a business, cannot be adjudicated in administrative agencies, even though such administrative adjudications are today regularly conducted by agencies such as the SEC or the FTC.

Adjuncts and Consensual Adjudication

Baude argues that a third area where non-Article III judges have been used involves cases where no power is exercised.  Thus, adjudications in this area can be conducted by entities that cannot exercise the judicial power of the United States.

One way that an entity might not exercise power is if it acts as an adjunct that does not undertake judicial power.  During the 19th Century, commissioners might undertake tasks, such as accepting bail and affidavits, but they had no arrest or imprisonment powers and therefore did not exercise judicial power.

Another way that an entity might not exercise judicial power is if its decision was by virtue of the consent of the parties.   For example, magistrate judges adjudicate civil cases and criminal misdemeanors with the consent of the parties.  Similarly, consent underlies private arbitrators that substitute for federal courts.  Baude persuasively argues that while consent cannot confer judicial power, it can make judicial power unnecessary.


There is much more to the paper.  But the importance of Baude’s paper is that he makes a persuasive case for showing that there is an interpretation of the constitutional language that conforms to early government practice while at the same placing real limitations on the use of non-Article III courts.  Depending on how one resolves some additional issues, the Constitution might prohibit administrative agencies from adjudicating a large number of cases involving common law rights, such as adjudications by the FTC, the SEC, the NLRB, and EPA.

Under this interpretation, the Constitution’s assignment of the judicial power to Article III judges is a real (and not merely symbolic constraint) on government action.  And that is a significant accomplishment.

Michael Dorf on Corpus Linguistics and Dicta
Michael Ramsey

At Dorf on Law, Michael Dorf: Dicta and the Original Meaning of Article III.  From the introduction:

A recent order in a pending Sixth Circuit case asks the parties for supplemental briefing on the original meaning of the cases or controversies language in Article III and its relevance to the distinction between holding and dicta. The order is especially notable because it directs the attorneys to explain how the Corpus of Founding Era American English bears on the question. To my mind, the order raises numerous issues. Here, I'll address the following:

1) How useful is the corpus for discerning original meaning as a general matter?

2) Even assuming the answer to question 1) is "at least somewhat," should lawyers who haven't chosen to cite it be directed by courts to do so?

3) Even assuming the answer to question 2) is "yes, at least sometimes," is this such an occasion?

4) Does the original meaning of Article III determine the line between holding and dicta, even on originalist premises?

5) How should one translate that original meaning, given substantial changes in how federal courts function since the Founding?

On corpus linguistics and originalism:

... Scholars take a variety of views of [corpus linguistics's] utility. For a generally supportive view, I recommend the various scholarship and blog posts of attorney/scholar Stephen Mouritsen. Among other points he makes is that a corpus provides a better picture of the public meaning of a word or phrase than does a dictionary. Insofar as originalists have heretofore relied extensively on dictionaries, the move to a corpus is a step in the right direction. To similar effect is an excellent article by Neal Goldfarb.

Not everyone is persuaded. A recent paper by Kevin Tobia uses contemporary examples, M-Turk experiments, and empirical analysis to show that in many settings, a corpus fails to capture the ways in which non-elites use language and thus the way it would be commonly understood. Tobia finds that both dictionaries and corpora have relatively high error rates and, in addition, frequently disagree with one another. Tobia does not deny that there can be a relatively determinate public meaning of some term at some particular time, but he offers reasons to doubt that a corpus is a very reliable means of recovering it.

Notwithstanding Tobia's good points, I tend to think that a corpus can be at least somewhat useful. ...  Even non-originalists like me think original meaning is relevant to contemporary meaning, so material that improves our ability to accurately discern original meaning is helpful to just about everyone interested in such cases. True, we should be mindful of the substantial possibility of being misled by a corpus, as Tobia's article underscores. But that is probably best seen as a reason to proceed carefully when using a corpus, not a reason never to use one.


Caroline Mala Corbin: Opportunistic Originalism and the Establishment Clause
Michael Ramsey

Caroline Mala Corbin (University of Miami School of Law) has posted Opportunistic Originalism and the Establishment Clause (Wake Forest Law Review, Vol. 53, 2019) (44 pages) on SSRN.  Here is the abstract:

This Article argues that the Supreme Court’s use of originalism is opportunistic because sometimes the Court relies on it and sometimes it does not. This inconsistency is evident in its two most recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014), and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government’s policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a cash grant to a Christian church. The Court’s inconsistent application—even when dealing with a single clause—raises the possibility that the Court’s use of originalism is based less on principle than on desired outcomes. 

Part I offers a very brief primer on the Establishment Clause and on the theory of originalism. Part II performs a close reading of Town of Greece. It first examines the originalist reasoning that led the Court to uphold a predominantly Christian prayer practice. It then considers how the case might have been decided had the Court relied on conventional doctrinal tests. Part III turns to Trinity Lutheran Church. It first reviews the Court’s cursory treatment of the Establishment Clause question presented, and then considers what various originalist approaches might have made of the challenged funding.

Mike Rappaport adds:  I haven't read the article, but my impression is that the charge may be accurate.  And I agree that originalists should have principled reasons for when they don't follow originalism, such as principled rules governing precedent.  But that said, notice how this charge holds originalism to a tougher standard than nonoriginalism.  Under the plural methodologies approach of people like Phillip Bobbit, which is probably the leading nonoriginalist approach, a judge is allowed to use any of the accepted methodologies (of which originalism is one).  So using originalism some of the time and not other times is entirely acceptable within the plural methodologies approach, but is considered opportunistic when originalists do it.  Perhaps someone should write an article entitled "Plural Methodologies: Opportunistic at Its Core."  For more on this, see my Is Libertarianism the Law?


New Book in Honor of Professor Jeffrey Goldsworthy
Michael Ramsey

Recently published: Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy  (Lisa Burton Crawford, Patrick Emerton, & Dale Smith, eds.) (Hart Publishing, 2019).  Here is the book description from Amazon: 

Jeffrey Goldsworthy is a renowned constitutional scholar and legal theorist whose work on the powers of Parliament and the interpretation of constitutional and statute laws has helped shape debates on these topics across the English-speaking world. The importance of democratic constitutionalism is central to Professor Goldsworthy's work: it lies at the heart of his defence of Parliamentary supremacy and shapes his approach to both constitutional and statutory interpretation. In honour of Professor Goldsworthy's retirement, this collection provides new perspectives from a range of leading public law scholars and theorists on the legal and philosophical principles that govern the making and interpretation of laws in a constitutional democracy, and addresses some of the challenges to democratic constitutionalism that have arisen in light of contemporary developments in Australia, Canada, New Zealand, the United Kingdom and the United States.

Via Larry Solum at Legal Theory Blog, who comments:

The extraordinary lineup includes: Larry Alexander, Dale Smith, Patrick Emerton & Lisa Burton Crawford, Lawrence Solum, Nicholas Aroney, Heidi Hurd, Kevin Toh, Alison Young, Richard Kay, Richard Ekins, TRS Allen, and Jeffrey Goldsworthy.

Goldsworthy remains one of the most important figures in multiple fields, including constitutional interpretation, statutory interpretation, and parliamentary sovereignty.  His pioneering originalist work anticipated, influenced, and shaped many of the developments that are associated with the "New Originalism" in the United States.  I count him as one of the two or three most significant influences on my own work.

Highly recommended.


Can the Supreme Court Review Impeachments?
Michael Ramsey

At The Hill, Alan Dershowitz answers yes: Supreme Court could overrule an unconstitutional impeachment.  From the beginning:

President Trump has said that if the House were to impeach him despite his not having committed “high crimes and misdemeanors,” he might seek review of such an unconstitutional action in the Supreme Court. On April 24, he tweeted that if “the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court. Not only are there no 'High Crimes and Misdemeanors,' there are no Crimes by me at all.”


Commentators have accused Trump of not understanding the way impeachment works and have stated quite categorically that the courts have no constitutional role to play in what is solely a congressional and political process. Time magazine declared in a headline “That’s Not How It Works,” and Vox called the president’s argument “profoundly confused.” 

Scholars also echoed the derision. The influential legal blog Lawfare wrote confidently that “The Supreme Court Has No Role in Impeachment,” and my friend and colleague Larry Tribe, an eminent constitutional law scholar, called Trump’s argument simply “idiocy,” explaining that “the court is very good at slapping down attempts to drag things out by bringing it into a dispute where it has no jurisdiction.”

Not so fast. Our nonlawyer president may be closer to the truth than his lawyer critics. ...

And from later on:

The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.  

Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.

From an originalist perspective, I agree.  (At least in part.)

The Constitution does not permit impeachment for anything other than high crimes and misdemeanors.  Let's suppose that the House impeaches the President for something he claims is not a high crime or misdemeanor under the original meaning of those words.  (I'm assuming that the question is whether conduct X is a high crime or misdemeanor, not whether the President committed conduct X).  Is this the type of question a court ordinarily could hear?  Professor Dershowitz says yes, and I agree.  It's a pure (although perhaps difficult) legal question of the meaning of the Constitution's text.  A key case is the Supreme Court's decision in Zivotofsky v. Clinton, involving the scope of the President's recognition power.  The President objected that the case was a so-called "political question" and thus inappropriate from judicial review. (This is also the argument scholars are making against the idea of judicial review of impeachments).  But the Court in Zivotofsky rejected the political question claim, saying that since the case involved a pure legal question of the meaning of the Constitution's text (there, the scope of the President's power to receive ambassadors), it was something the courts could decide.  And I agree with Professor Dershowitz that this follows from Marbury v. Madison and the courts' Article III "judicial Power" to say what the law is.

The counterargument (made in the posts linked above) is that the Constitution's text gives Congress non-reviewable power over impeachments (in a way that it doesn't give non-reviewable power over other legal questions, like the one in Zivotofsky, to the other branches).  Specifically, Article I, Section 2 says that the House "shall have the sole Power of Impeachment."  I do think this gives the House substantial non-reviewable discretion over many aspects of impeachment (more on that below).  But deciding the meaning of the constitutional phrase "high Crimes and Misdemeanors" is not part of the "Power of Impeachment."  It is instead a prerequisite to the exercise of the power of impeachment.  And it is a pure question of law, not a question of the exercise of discretion committed to the House.

In contrast, much of the impeachment process does involve the exercise of the House's discretion.  Whether to initiate impeachment proceedings, how to conduct the proceedings, and what result to reach are all matters for the House to decide, employing the discretion committed to the House by Article I, Section 2.  In particular -- and here I disagree with Professor Dershowitz and the President -- the House has discretion to decide whether the facts establish that the President has committed an impeachable offense.  That is, if the question is not whether conduct X is a high crime or misdemeanor but rather whether the President has committed conduct X, I think that is a political question committed to the House and is not reviewable by the courts.  A key point of the impeachment clause is to shift the adjudicatory aspects of the impeachment process to the political branches.

Again, this distinction comes from Marbury, and I think it reflects the correct original power of the courts conveyed by Article III to say what the law is, but not to interfere with the exercise of discretion committed to the political branches.  In the part of  Marbury that is the foundation of the political question doctrine, Chief Justice Marshall explained that the courts could not review exercises of discretion by the executive branch.  Whether the executive made the correct answer or not, he was answerable in his political capacity to the people, not to the courts.  But where the question is the meaning of a law (including the Constitution), that matter is committed to the courts and does not involve any discretion in the executive.

For what it's worth, I've made a closely parallel argument regarding the justiciability of the President's war power in this article: War Powers Litigation after Zivotofsky v. ClintonMy argument there is that courts can review war powers questions that are pure questions of law, such as the scope of the declare war clause, but should not review questions regarding the conduct of war that involve matters of presidential discretion.

The impeachment context involves actions of Congress rather than actions of the President, but the principle should be the same.  If the question is what the Constitution's text means, the courts have the constitutional power to answer it.


Elliott Hamilton: Material Support for Terrorism as Seditious Libel?
Michael Ramsey

Elliott R. Hamilton (Independent) has posted Material Support for Terrorism as Seditious Libel? A Review of the Law After Humanitarian Law Project with Attention to Originalist Principles (NYU Journal of Law & Liberty, Vol. 12, No. 2, 2018) (41 pages) on SSRN. Here is the abstract:

This Note surveys First Amendment jurisprudence related to 18 U.S.C. § 2339B, colloquially known as the Material Support for Terrorism Statute, while drawing historical parallels to common law seditious libel. It highlights that Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), potentially invites a restoration of the original public understanding that common law seditious libel is not constitutionally protected under the First Amendment. This is significant because the Supreme Court has constructed a more libertarian conception of free speech over the past half-century that leaves little room for free speech restrictions like seditious libel laws and material support prohibitions.


John McGinnis on Fault Lines in Originalism
Michael Ramsey

At Law and Liberty, John McGinnis: The Three Fault Lines of Contemporary Originalism.  From the introduction:

As a jurisprudential theory becomes dominant, it tends to fracture. One reason is that academics are naturally both fractious and enterprising. They gain justified renown by recognizing subtle frailties as well as important difficulties in a major theory and by trying to improve both its content and articulation. Because there is so much at stake in these matters practically, litigants and politicians also try to reorient the theory to serve their own interests.

So it has been with originalism. Originalism began in opposition to the free form jurisprudence of the Warren Court and largely defined itself as a theory of judicial restraint with that restraint being the anchor of original intent of the Framers and subsequently the original meaning of the Constitution’s text. But with the disappearance of its original opponent, originalism had to offer a positive defense and definition of itself. Currently originalists address fundamental questions about originalism, such as normative ones like why one ought to be an originalist, and positive ones like how to find the original meaning. Three issues currently being debated represent fundamental fault lines in contemporary originalism, the resolution of which may shape the future of constitutional jurisprudence.

I won't spoil the suspense by saying what the three are (though I agree with the list).  I was struck, though, by one that is not on the list: the fault line between original intent originalism and original public meaning originalism.  Is this one omitted because Professor McGinnis thinks it's been resolved in favor of original public meaning?  (My colleague Larry Alexander would dispute that).  Or is it omitted because Professor McGinnis thinks it's not that important a fault line as a practical matter, in line with this article?


More from Seth Barrett Tillman on George Washington and Emoluments
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman has further evidence on George Washington's view of emoluments: DOJ Response to Office of Inspector General Report (and, by implication, to Jonathan Hennessey).  From the conclusion: 

That is, the land sold by the D.C. Commissioners was land donated to the United States and was public property when purchased by Washington. In addition, Washington stated that “the present Proprietors shall retain every other lot” beyond those ceded and would “be allowed at the rate of Twenty five pounds per acre” as payment “for such part of the land as may be taken for public use, for square, walks, &ca.” [Id.] Consistent with this understanding, one amicus has explained that although the Commissioners “did make certain payments to the landowners . . . , those payments were not [to pay] for auctioned land, such as the lots Washington bid on,” but were for land appropriated for public use at £25 per acre, and “[n]o payments were made to the proprietors for the land that was sold at auction. The proprietors gifted such land to the government in the expectation that their other properties in the new federal capital would become more valuable.” [quoting Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project at 14–16, DC & MD v. Trump, No. 18-2488 (4th Cir. Jan. 31, 2019), Doc. No. 31-1, 2019 WL 411728.]
In any event, the Court need not decide this disagreement as to the historical record. Again, for purposes of interlocutory appeal, it is enough that reasonable jurists could conclude that Washington received benefit from the federal government through the land sale transactions; that if Plaintiffs’ interpretation of “Emolument” were correct, then Washington likely violated the Domestic Emoluments Clause; and that this historical precedent therefore casts doubt on Plaintiffs’ interpretation.
[Note: this is an excerpt from the Department of Justice's Supplemental Reply and Motion to Stay Proceedings at 14–16, Blumenthal v. Trump, Case 1:17-cv-01154-EGS (D.D.C. May 28, 2019).]
For further earlier thoughts by Professor Tillman on Washington and emoluments, see here.
Especially in light of this evidence, it does seem quite plausible that an arm's length purchase-and-sale transaction was not understood as an emolument.


Is the Yemen Conflict Unconstitutional?
Michael Ramsey

At Vox, Tara Golshan:  Trump ignored Congress on war powers. Constitutional scholars want Democrats to take him to court. From the introduction:

A group of constitutional scholars and lawmakers want House Speaker Nancy Pelosi to take President Donald to the Supreme Court over the war in Yemen.

Their case is straightforward: Trump is unilaterally involving the United States in war, and that’s unconstitutional. For four years, the United States has participated in a war in Yemen that was never authorized by Congress and that Congress expressly told Trump to withdraw from. Trump ignored the directive. Now, as the White House escalates tensions with Iran, there’s growing concern that unless legal action is taken, Congress will cede more war powers to Trump.


“The president’s veto [of the bill to end involvement in Yemen] doesn’t end this conversation,” Bruce Ackerman, a constitutional law scholar with Yale University, told Vox. He’s one of a diverse group of legal experts who have sent Pelosi a letter urging her to take legal action.

And from further along:

The United States got involved in Yemen four years ago when Saudi Arabia and its allies began a military campaign in Yemen against Iranian-backed Houthi rebels. The US is providing Saudis with intelligence, arms and ammunition, and, until late last year, fuel for their warplanes.


“This is a moment of truth, both for the congressional war power and for the Supreme Court of the United States,” Ackerman said. “Does the Supreme Court of the United States — and its claim of originalism — is that supposed to be taken seriously?”

I signed the letter (which isn't public yet -- I'll provide a link once it is).  The hard question, I think, it whether the U.S. involvement in Yemen is a "war" for constitutional purposes.  Of course I think that under the Constitution's original meaning only Congress has the power to initiate war (or authorize the President to initiate it).  It seems implausible that Congress has authorized the Yemen action, both because of the recently vetoed bill but even more so because the Yemen rebels appear to have nothing to do with al Qaeda.  (Congress' 2001 authorization to use force against al Qaeda and its allies appears to be the only remotely plausible basis of congressional authorization).   I also think it is appropriate for courts to decide some (though not all) war powers questions, as discussed here.  So that leads back to the question whether the U.S. is engaged in "war" in Yemen.  And that depends both on facts on the ground (which may be somewhat uncertain) and on the difficult question of when military support for an ally becomes a war.  (It's much less clear in Yemen than, for example, with respect to President Obama's intervention in Libya, which I discussed in this article).  But in any event it seems entirely appropriate for Congress to raise objections.


Hernandez v. Mesa and the Extraterritorial Constitution Return to the Supreme Court
Michael Ramsey

Yesterday the Supreme Court granted certiorari (again) in Hernandez v. Mesa, the case of the border patrol agent (Mesa) who, while in the United States, shot across the border and killed a Mexican citizen (Hernandez) in Mexico.  The case reached the Court in 2017 but was remanded without a definitive ruling; after the Fifth Circuit reaffirmed its ruling for Mesa, it's back.

The core issue of originalist interest in whether the Constitution protects non-citizens outside the United States.  Here are two guest posts on that issue from Andrew Kent (Fordham) from the time that the Court first heard the Mesa case.

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa?

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa? Part 2

Unfortunately the Court isn't likely to reach this issue, as it has set itself up to decide the remedy first.  Specifically, the Court limited its grant to the question:

Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

And the Court's approach to Bivens questions has been strongly nonoriginalist, whatever one may think of its outcomes.  (Here is a post I wrote many years ago on originalism and Bivens).


New Book: "Fidelity and Constraint" by Lawrence Lessig
Michael Ramsey

Recently published, by Lawrence Lessig: Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (Oxford U. Press 2019).  Here is the book description from Amazon: 

The fundamental fact about our Constitution is that it is old -- the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. 

In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution of the translation process over time. In every new era, judges understand their translations as instances of "interpretive fidelity," framed within each new temporal context. 

Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls "fidelity to role." In each of the cycles of translation that he describes, the role of the judge -- the ultimate translator -- has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. 

The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates.

(With blurbs from Jack Balkin, Richard Fallon, Sanford Levinson, David Strauss and Cass Sunstein).


Abolish the Feres Doctrine
Michael Ramsey

In the New York Times, Stephen Vladeck (Texas): Congress Should End a ‘Harsh and Unfair’ Rule That Blocks Troops From Court.  From the introduction:

The Supreme Court justices Clarence Thomas and Ruth Bader Ginsburg don’t agree on much. On Monday, however, they both dissented from their colleagues’ decision to deny review of Daniel v. United States, in which Walter Daniel, whose wife, Rebekah Daniel, died four hours after giving birth to their daughter, had brought a suit for medical malpractice and wrongful death. He claimed that his wife’s death resulted from the negligence of the medical staff.

In any other context, this case would hardly attract the Supreme Court’s attention. But Mr. Daniel’s wife was a lieutenant in the United States Navy and was treated at a military hospital, and so his suit on her behalf was foreclosed by the Supreme Court’s 1950 decision in Feres v. United States. That unanimous decision bars any and all lawsuits brought by service members against the federal government for injuries that “arise out of or are in the course of activity incident to” their military service.

And from later on:

As Justice Antonin Scalia put it in 1987, “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.” Not only did the court in 1950 read into the tort claims act an exception with no textual support; subsequent decisions broadly construed Feres’s scope so that it is virtually impossible for service members to recover damages from the government for almost any negligence or other misconduct they suffer while serving. In the process, Feres treats service members more harshly than any other Americans, even in contexts that are entirely analogous to civilian life — like medical malpractice claims at stateside hospitals. It would be one thing if Congress had expressly required such an unjust and unfair result. But nearly every contemporary court and commentator agrees that it did not — and that the result of the decision, in Justice Scalia’s words, has been “unfairness and irrationality.”

Here's Justice Thomas, dissenting from denial of certiorari in Lanus v. United States (2013):

The [Federal Tort Claims Act (FTCA)] is a sweeping waiver of sovereign immunity that, under specified circumstances, renders the Government liable for money damages for a variety of injuries caused by the negligence of Government employees. 28 U. S. C. §1346(b)(1). As written, the FTCA “renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees.” United States v. Johnson, 481 U. S. 681, 693 (1987)
(SCALIA, J., dissenting). While the Act contains a number of exceptions to this broad waiver of immunity, “none
generally precludes FTCA suits brought by servicemen.” Ibid. Congress contemplated such an exception, Feres, supra, at 139, but codified language that is far more limited. See §2680(j) (excluding from waiver “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war” (emphasis added)).

Nevertheless, in Feres, the Court held that “the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U. S., at 146.  There is no support for this conclusion in the text of the statute, and it has the unfortunate consequence of depriving servicemen of any remedy when they are injured by the negligence of the Government or its employees.

And Justice Scalia, joined by Justices Brennan, Marshall and Stevens, dissenting in Johnson v. United States (1987):

[T]he Feres rule is now sustained only by three disembodied estimations of what Congress must (despite what it enacted) have intended. They are bad estimations at that.


Had Lieutenant Commander Johnson been piloting a commercial helicopter when he crashed into the side of a mountain, his widow and children could have sued and recovered for their loss. But because Johnson devoted his life to serving in his country's Armed Forces, the Court today limits his family to a fraction of the recovery they might otherwise have received. If our imposition of that sacrifice bore the legitimacy of having been prescribed by the people's elected representatives, it would (insofar as we are permitted to inquire into such things) be just. But it has not been, and it is not. I respectfully dissent.

Agreed on all counts.  But note that Feres is fundamentally a nonorignalist opinion.  It purports to find what the enacting Congress intended, but it does so not on the basis of text or historical evidence; rather it speculates about what Congress intended based upon the Court's assessment of what the best contemporary policy would be.  And somehow people keep supposing that turning the Court loose to decide cases on such grounds will more often lead to just results.


Hyatt I, II, and III
Andrew Hyman

On May 16, my co-blogger Michael Ramsey blogged here about the California v. Hyatt (Hyatt III) case involving a state’s sovereign immunity in the courts of other states, and did so again on May 22.  I agree with much of what Mike writes, for example that Hyatt III is very different from other SCOTUS precedents regarding sovereign immunity, which only restrict the federal government without restricting the states. But still (as he says) I am more sympathetic to Hyatt III than he is.
It’s the result rather than the rationale that I sympathize with in Hyatt III.  It seems absurd to read the Constitution as allowing citizens of one state to sue another state as long as the suit is not brought in a neutral federal forum.   Mike replies that, during the founding era, “States may well have thought that judgments from the new federal courts were more of a threat than judgments from the courts of other states (which would be less likely -- being subject to retaliation -- and much harder to enforce).”  Maybe, but I have another argument too.
The Full Faith and Credit Clause at Article IV, Section 1 says that, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”  Suppose State A decides that, as a general rule, it shall have sovereign immunity to the maximum extent possible in all future lawsuits.  State B should then be obliged to give full faith and credit to that prior enactment of State A.  And that’s basically the same result as in Hyatt III via a different rationale. Unfortunately, SCOTUS rejected this full-faith-and-credit-argument in  Hyatt I (2003): “We granted certiorari to resolve whether the Nevada Supreme Court's refusal to extend full faith and credit to California's statute immunizing its tax collection agency from suit violates Article IV; § 1, of the Constitution. We conclude it does not....”  I think Hyatt I was wrongly decided.
So what happened between Hyatt I and Hyatt III? Hyatt II (2016) of course.  In that case, the Court attempted to split the baby by giving California some immunity in Nevada courts under the Full Faith and Credit Clause, but less immunity than the Court would give in Hyatt III, though more immunity than the Court had given in Hyatt I (Chief Justice Roberts summarized Hyatt II in his dissent: “To comply with the Full Faith and Credit Clause, the Nevada Supreme Court need only afford the Board the same limited immunity that Nevada agencies enjoy”).
The Full Faith and Credit Clause may be more difficult to apply to states’ statutory law than to states’ court judgments, but in situations where the state law is a straightforward claim of traditional sovereign immunity then what’s the difficulty?