01/22/2023

Programming Note: Further Blog Holiday
Michael Ramsey

I will be taking another sabbatical-related blog holiday this coming week.  Don't let anything happen while I'm gone.

01/21/2023

Anthony Bellia & Bradford Clark: The Constitutional Law of Interpretation
Michael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted The Constitutional Law of Interpretation (Notre Dame Law Review, Vol. 98, No. 519, 2022) (100 pages) on SSRN.  Here is the abstract:

The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal texts (such as statutes, treaties, contracts, etc.). The distinctive function of the Constitution—often forgotten or overlooked—renders these analogies largely unnecessary. The Constitution was an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the “States” as separate sovereigns with residual authority. Thus, constitutional interpretation necessarily entails ascertaining the extent to which the Constitution transferred sovereign rights from the States to the newly created federal government. The law of nations prescribed rules that governed both the formation and the interpretation of instruments used to transfer sovereign rights. Under these rules, legal instruments (regardless of their form) could transfer sovereign rights only if they did so in clear and express terms, and those terms were to be given their ordinary and customary meaning as of the time of adoption. Because the Constitution was an instrument used for this purpose, the Founders recognized that the applicable rules were “clearly admitted by the whole tenor of the instrument.” Accordingly, these rules became an inextricable part of the legal content conveyed by the text of the Constitution. Not surprisingly, the Supreme Court used these rules to interpret the Constitution from the start. Recovering this constitutional law of interpretation has at least two important implications. First, by “admitting” the background rules of interpretation, the Constitution requires interpreters to employ some form of originalism in constitutional interpretation. Second, the nature of the Constitution and the rules governing its interpretation confirm that the Supreme Court has properly employed three doctrines to uphold the States’ residual sovereignty—namely, sovereign immunity, the anticommandeering doctrine, and the equal sovereignty doctrine.

The authors presented an earlier version of this paper at the February 2022 Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the University of San Diego School of Law.

01/20/2023

New Supreme Court Cases of Originalist/Textualist Interest
Michael Ramsey

Last week the U.S. Supreme Court agreed to hear eleven new cases, at least two of which have originalist/textualist significance.

(a)  Groff v. DeJoy is expressly a bid to overrule the preposterous holding of the Burger Court in Trans World Airlines v. Hardison that the phrase "undue hardship" in Title VII's protections against religious discrimination means just "more than a de minimis cost."  Josh Blackman comments at Volokh Conspiracy: "May the 'de minimis' test go the way of Trans World Airlines."  Agreed! (And I bet the Court will too.)

More generally I'd like to see the case cut back on the often-stated (but inconsistently followed) canon that overruling statutory precedent should carry an especially high burden.  The Court's obligation is to get the law right, subject to the usual constraints of precedent (whatever those may be), not any more or less than that.

(b) Tyler v. Hennepin County, Minnesota is a takings case that turns on the meaning on "property" in the Fifth Amendment.  Also at Volokh Conspiracy, Ilya Somin has a summary and discussion of the case, including this statement of the facts from Tyler's attorneys at the Pacific Legal Foundation:

As an elderly widow living alone, Geraldine Tyler was doing just fine in the one-bedroom condo she owned in Minneapolis. That is, until 2010, when a rise in neighborhood crime and frightening incidents near her home alarmed Geraldine and her family and prompted her hasty move to a safer area, where she rented an apartment. 

Once Geraldine moved, she could no longer afford the property taxes on her condo in addition to the rent on her apartment. The taxes piled up, and Tyler accrued a $2,300 debt. In 2015, when the total tax debt, including penalties, interest, and fees, was $15,000, Hennepin County, Minnesota, seized the condo and sold it one year later for $40,000. Instead of keeping the $15,000 it was owed and refunding Geraldine the sale surplus, the county kept all of the $40,000. 

The county and the lower court relied on a state statute abolishing property rights in this situation, arguing that the Constitution only protects property as defined by state law (so there was no taking because Tyler had no property interest in the residual equity).  Professor Somin notes that the Sixth Circuit reached a conflicting result in a similar case, and comments: 

[The Sixth Circuit] ruling is part of a longstanding debate over the extent to which the property rights protected by the Takings Clause are purely defined by state law (in which case the state can often avoid takings liability simply by redefining them), or whether they are also defined by some combination of general legal tradition and natural law. The Sixth Circuit  is right to conclude that broader legal principles constrain the states here. But I would add that, at least as a matter of original meaning, states are also constrained by natural law understandings of property rights. I briefly cover this point in this article (pp. 52-53), and also in Chapter 2 of my book The Grasping Hand.

Given the high value the Founders placed on property rights, it would be strange—to say the least—if these constitutional rights were left entirely at the mercy of state governments to redefine as they please, because state law protects them and plays a key role in defining their scope. 

Sounds right to me, and I would think (without having looked at it too closely) that the Court is likely to agree.  Otherwise states could save themselves a lot of money by declaring that no one has a property right in any land the state decides it needs.

01/19/2023

Cass Sunstein: Experiments of Living Constitutionalism
Michael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard Kennedy School) has posted Experiments of Living Constitutionalism (forthcoming, Harvard Journal of Law & Public Policy) (11 pages) on SSRN.  Here is the abstract:

Experiments of Living Constitutionalism urges that the Constitution should be interpreted so as to allow both individuals and groups to experiment with different ways of living, whether we are speaking of religious practices, family arrangements, political associations, civic associations, child-rearing, schooling, romance, or work. Experiments of Living Constitutionalism prizes diversity and plurality; it gives pride of place to freedom of speech, freedom of association, and free exercise of religion (which it would protect against the imposition of secular values); it cherishes federalism; it opposes authoritarianism in all its forms. While Experiments of Living Constitutionalism has considerable appeal, my purpose in naming it is not to endorse or defend it, but as a thought experiment and to contrast it to Common Good Constitutionalism, with the aim of specifying the criteria on which one might embrace or defend any approach to constitutional law. My central conclusion is that we cannot know whether to accept or reject Experiments of Living Constitutionalism, Common Good Constitutionalism, Common Law Constitutionalism, democracy-reinforcing approaches, moral readings, originalism, or any other proposed approach without a concrete sense of what it entails – of what kind of constitutional order it would likely bring about or produce. No approach to constitutional interpretation can be evaluated without asking how it fits with the evaluator’s “fixed points,” which operate at multiple levels of generality. The search for reflective equilibrium is essential in deciding whether to accept a theory of constitutional interpretation.

01/18/2023

Seth Barrett Tillman has some Biden-Related Questions
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Some Biden-related questions no one seems to be asking?  Here are some of the ones relating to the Constitution:

For the purposes of the Impeachment Clause (Article II, Section 4), and the allegations surrounding Biden’s VP duties, is President Biden a current office-holder or a former office-holder? 

And if President Biden is not a current office-holder for the the purpose of the Impeachment Clause ... Given that President Biden’s woes stem from a position which he formerly held, and that there was a break in his government service between his being VP and P, one asks: “Are former officers impeachable?”

Is there any statute of limitations defense for impeachable offenses? Should the statute of limitations during impeachment proceedings mimic the statutory statutory statute of limitations where the alleged impeachable offense is a federal criminal offense? (Tillman: my tentative answer is “yes.” See also Josh Blackman & Seth Barrett Tillman, ‘Can President Trump be Impeached and Removed on the Grounds of Incitement?,’ Reason—Volokh Conspiracy (Jan. 8, 2021, 3:57 AM), <https://tinyurl.com/y5vz3d6o>.)

Is there any implied statute of limitations arising from the Constitution itself? 

My answers are (a) he is a current office holder and so subject to impeachment including for offenses in a former office [the impeachment clause says the President can be impeached for high crimes and misdemeanors, not just for high crimes and misdemeanors in his current office], and (b) there's no constitutional version of a statute of limitations [there's nothing about a limitations period in any of the impeachment-related clauses, and that's good enough for me: whether a remote past event is grounds for impeachment/removal is up to the House/Senate].

Note that these answers would also apply to President Trump if he were re-elected President and then re-impeached (if that's a word) for the January 6 events.

01/17/2023

Let’s Not Overthink the National Popular Vote Compact Which is Clever but Cannot Work
Andrew Hyman

This is a very late reply to a blog post here by Michael Ramsey about the proposed National Popular Vote Compact (“NPV Compact”).  This compact would oblige each state to choose presidential electors based entirely upon who wins the national popular vote.

Many provisions of the U.S. Constitution are elegantly simple and straightforward, and that includes this one: “Each State shall appoint…a Number of Electors….”  It seems straightforward, and it is what it seems.  No combination of states can appoint the electors of another state.  Each state establishes who its electors are, the word “appoint” meaning to establish.

Even if the Constitution did not mention any role for a state’s legislature, such a role would be fine, because a state legislature is part of the state.  Likewise, a state’s citizens are part of the state.  Perhaps a legislature may also consider anyone lawfully within its borders to be part of the state.  But one state is obviously not part of another state, just as the United Nations General Assembly is obviously not part of any U.S. state, and so each state must decide by itself who to appoint as electors.  The state decides the manner of appointment, the state decides who to appoint, and the state carries out the appointment.  Simple.

It doesn’t matter whether Congress approves the NPV Compact.  It doesn’t matter whether the compact says state legislatures are free to withdraw from it at any time.  It doesn’t matter whether the compact is a “treaty” versus a mere “agreement.”  It doesn’t matter whether the NPV Compact would allow each state to appoint electors based upon votes cast nationwide under a patchwork of unequal voting procedures.  It doesn’t matter whether the NPV Compact tramples upon protection given to smaller states.  All of that is perhaps worth pondering a little bit, but none of it is really important here.  

The NPV Compact violates these plain words: “Each State shall appoint…a Number of Electors….”  If those words are not empty or trivial, then each state has the power and responsibility to decide who to appoint.  The Constitution elaborates upon that appointment power, but in doing so never involves any other states or nations.

The appointment power of a U.S. president is instructive.  The Constitution involves the U.S. Senate in that process, but once the Senate has confirmed a nominee, then the appointment power allows the president complete power to either appoint the confirmed nominee, or else not appoint the confirmed nominee and instead nominate someone else.  No federal statute (or treaty or executive agreement or congressional-executive agreement) could require the president to do one or the other, much less to do one or the other based upon what the U.N. General Assembly or some other entity wants.

The appointment power is not merely ministerial, and it cannot be made ministerial by any compact. Yet that is exactly what would happen if the NPV Compact requires a state to robotically name electors based upon a choice made outside the state. Let’s not overthink this.

When the Constitution was being drafted and ratified, it was understood that appointment did not merely refer to the ultimate presidential designation of a nominee for a particular office, but rather appointment included as well the broader process leading up to that designation.  For example, Thomas McKean in the Pennsylvania Ratification Convention, on 10 December 1787, said “The Senators have a share in the appointment of certain officers….”  Likewise, the writer known as the Federal Farmer wrote on 17 January 1788  that the Senate will “share in the appointment of officers….”  So, when the Constitution says each state will appoint its electors, that refers to more than the ultimate designation of particular people, and includes the selection of those people.

Jed Shugerman: The Bi-Partisan Enabling of Presidential Power
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted The Bi-Partisan Enabling of Presidential Power: A Review of David Driesen's 'Specter of Dictatorship: Judicial Enabling of Presidential Power' (Syracuse Law Review, Vol. 73, 2022) (20 pages) on SSRN.  Here is the abstract:

In "The Specter of Dictatorship: Judicial Enabling of Presidential Power," [Ed.: Stanford University Press 2021, book description here] David Driesen questions the unitary executive theory and other doctrines of unchecked executive power. He offers primarily a critique of purposivism, a mix of original public meaning and more recent history illuminating those purposes: the Founders’ anti-tyranny purpose and then the rise of European tyranny from Nazi Germany to contemporary Hungary, Turkey, and Poland.

This review first focuses on Driesen’s approach to Congress: He identifies the broad congressional delegation of powers to the president as a source of expansive executive power, but he does not entertain that doctrines of deference to agencies and executive power may be a problem, nor whether some doctrines (e.g., limiting Chevron or expanding non-delegation) may be potential solutions. Second, the problem of enablement is not just judicial: Presidents use the appointment process to stack the courts with lawyers who had significant experience exerting and/or expanding executive power: a pipeline from Article II lawyers to Article III judges. Third, on the question of anti-tyranny from the Founding to more modern European examples, some of Driesen’s evidence (especially Poland) may be counter-evidence in favor of stronger separation of powers as a check against ambitious party leaders. Driesen’s account of the Founding is more accurate than the unitary theorists’ account, but he assumes that the anti-unitary position is the pro-liberty position. The unitary advocates have their own good-faith theory of liberty, even if that theory is a reflection of 1980s Republican ideology, more than of the 1780s republican ideology.

Unsurprisingly, I disagree with the review's assessment of the unitary executive theory (which is delivered much more strongly and at greater length in the review than the abstract suggests).  But I agree that the chief culprit in the modern expansion of executive power is congressional delegation, and especially the ability of the President and the agencies to claim delegated power from statutory language that is (at best) ambiguous.  And yet most modern commentators who purport to abhor the overreach of executive power at the same time oppose any attempt to rein in claims of delegation.  Professor Shugerman is a notable exception.

01/16/2023

Eric Segall on Baude and Sachs on Vermeule on Originalism [Updated with my Thoughts] [and a Response]
Michael Ramsey

At Dorf on Law, Eric Segall: Of Vermeule, Baude and Sachs, and Saving Originalism by Destroying It (commenting on this review of Adrian Vermeule's Common Good Constitutionalism). From the introduction:

One of the recurring themes of both Vermeule's critiques of originalism and my own is that once judges are allowed to discard the expected applications of those who ratified the relevant constitutional text, which most of today's originalists say is permissible, then originalism is essentially irrelevant to constitutional litigation and becomes a smoke screen for the imposition of modern-day judicial value judgments--they very thing originalists says they don't want. ...

Baude and Sachs react quite harshly to the "illusion" language but their defense of originalism proves the point Vermeule, I, and many others have been making for a long time. The reason today's originalism is an illusion according to Vermule, in the words of Baude and Sachs, is because so "long as it’s 'possible' to 'contradict[] the unanimous expectations of the enacting generation,' Vermeule argues, then 'original’ meaning is ‘fixed’ in only the most nominal sense." Baude and Sachs respond to this critique not by denying that originalism allows judges to discard well-known expected applications of constitutional text but by confirming that originalism allows this move. They say the following:

This issue...has been solved, as one can discover by reading the works cited in the book’s endnotes. A 'familiar feature of legal rules is that the same rule can produce changing outcomes over time....' As Professor Christopher Green has described, legal norms often operate as functions from facts to legal outcomes. As their designated inputs change, the outputs change accordingly. But the rules themselves remain the same, because not every change in facts affects a designated input.

In plain English, Baude and Sachs argue that a vague and imprecise text such as the equal protection clause may lead to different and updated judicial applications over time--applications that may contradict what the ratifiers of the equal protection clause thought it meant as to a specific problem--if the facts change. They approvingly cite Village of Euclid v. Ambler Realty Co., for the proposition that "while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions." And furthermore, according to Euclid, “a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles." Baude and Sachs apparently believe that this description of constitutional law is "originalist."

And in conclusion:

Originalism has no real purchase in the cases that we care most about because they involve open-ended constitutional language that calls for judges to make contemporary judgments about circumstances, facts, and perceptions of facts that have changed in numerous ways since 1791 or 1868. Arthur Machen knew this in 1900 and most of us know it today. If originalism is our law, as Baude and Sachs say, that's only because their version of originalism is effectively living constitutionalism. In order to save originalism, they had to destroy it.

ADDED: My thoughts --

I've objected to this line of argument many times and so won't repeat my views at length.  I'll only say this: Consider the leading recent Supreme Court cases, Bruen and Dobbs.  In my view, in neither case does the correct originalist analysis depend at all on "contemporary judgments about circumstances, facts, and perceptions of facts that have changed in numerous ways since 1791 or 1868."  As to Dobbs, the originalist question is whether there was a broad understanding in 1868 that abortion was a core right that was viewed as one of the "privileges or immunities of citizens of the United States."  The answer is (so far as I can see from the historical record), clearly not.  Dobbs is a hard case because of precedent, not because of the difficulties of understanding or applying the original meaning.  As to Bruen, the originalist question is whether the sort of discretionary licencing program for firearms that New York had in place had any counterparts in mid- to late-nineteenth century practice.  And the answer depends on whether one thinks Saul Cornell is right about the history.  There's no living constitutionalism to any of this.

ERIC SEGALL responds:

The reality is that the Dobbs Court did not ask what the original meaning of the word liberty was or the phrase privileges or immunities but even asking that question isn’t really originalist for the same reasons Bruen is not originalist: constitutional law in 1791 and 1868 was not all or even mostly about history. It was balancing the importance of the right against the states’ interest. By not conducting that analysis in Dobbs or Bruen, the Court was using history but not in an originalist manner as Noah Feldman explained here.

01/15/2023

Aditya Bamzai & Samuel Bray: Debs and the Federal Equity Jurisdiction
Michael Ramsey

Aditya Bamzai (University of Virginia School of Law) & Samuel L. Bray (Notre Dame Law School) have posted Debs and the Federal Equity Jurisdiction (98 Notre Dame Law Review 699 (2022)) (revised final version) (42 pages) on SSRN.  Here is the abstract:

The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties, presidential addresses, and enormous academic commentary. In the early twentieth century, Congress enacted several pieces of labor legislation that reduced Debs’s importance in the specific context of strikes. But in other contexts, the question whether the United States can bring suit in equity remains disputed to this day. The United States has expressly invoked, or implicitly relied on, Debs in some of the most high-profile cases in recent years, including United States v. Texas.

This Article explains the equitable principles at work in Debs and shows how these principles still have a normative basis today. Collecting materials from traditional equity practice and historic treatments of Debs that have escaped the attention of the recent academic literature, this Article especially considers the connection that the Debs Court draws between equitable relief and a proprietary interest. It shows how the equity-property connection works as an empowering and limiting principle for the ability of the United States to bring a suit in equity. And it offers guidance to the federal courts by explaining and defending the traditional contours of their equity jurisdiction.

I have the feeling (without thinking about it too closely) that Debs just has to be wrong.  But these are the experts.

01/14/2023

A Poem on Constitutional Originalism
Mike Rappaport

My apologies for posting another work by the AI ChatGPT, but I really liked this.  Perhaps that is because I am particularly challenged as a poet and so it seemed better than other efforts by ChatGPT.  

I asked ChatGPT to write a poem on constitutional originalism.  Here was the result (in seconds time of course). 

 

The Constitution, a guiding light,

Originalism, a principle bright.

From the founders' words, we must not stray,

Their intent, in all we do, must stay.

 

A document of laws, etched in time,

To keep our nation in its prime.

A framework for freedom, strong and true,

Guided by original intent, anew.

 

We must not twist the words they wrote,

To suit our own, a different coat.

The Constitution's meaning, clear and pure,

Originalism, our nation's cure.

 

So let us honor the founders' call,

And keep the Constitution, standing tall.

With originalism as our guide,

Our nation's future will abide.

 

Update: Eric Segall writes a poem expressing a negative view of originalism. 

John Connolly: Maryland's Historical Firearms Restrictions and What They Mean After Heller, McDonald, and Bruen
Michael Ramsey

John Connolly (independent) has posted Maryland's Historical Firearms Restrictions and What They Mean After Heller, McDonald, and Bruen (38 pages) on SSRN.  Here is the abstract:

Historical state laws regulating firearms have become relevant to modern firearms legislation after the Supreme Court’s decisions in Heller, McDonald, and Bruen. This article tries to catalog and analyze all historical firearms laws in one of the original 13 states, Maryland, and considers how those laws might affect modern legislative efforts to regulate firearms.

01/13/2023

The Year in Review: Originalism-Oriented Articles of 2022 (Part 3) -- Articles of Particular Interest (to me)
Michael Ramsey

My final post in this series is entirely subjective: I picked 25 originalism-oriented articles from 2022 (that weren't on my other 2 lists, see here and here), that were featured on the Originalism Blog, and that I thought were especially interesting.  (This is my similar post from last year.) But probably I forgot some.  Here they are:

Evelyn Atkinson (Chicago), Frankenstein’s Baby: The Forgotten History of Corporations, Race, and Equal Protection (Virginia Law Review)

Evan D. Bernick (Northern Illinois), Fourteenth Amendment Confrontation (Hofstra Law Review)

Nikolas Bowie (Harvard) & Norah Rast (Harvard Law School J.D. '21), The Imaginary Immigration Clause (Michigan Law Review) 

Maureen E. Brady (Harvard), Uses of Convention History in State Constitutional Law (Wisconsin Law Review)

John C. Harrison (Virginia), Federal Judicial Power and Federal Equity Without Federal Equity Powers (Notre Dame Law Review)

Janine Young Kim (Chapman), What is an Unreasonable Search? (Oregon Law Review)

Kurt T. Lash (Richmond), The State Citizenship Clause (U. of Pennsylvania Journal of Constitutional Law)

Gary Lawson (Boston University), Equivocal Originalism (Texas Review of Law and Politics)

Lawrence Lessig (Harvard), The Brilliance in Slaughterhouse: A Judicially Restrained and Original Understanding of 'Privileges or Immunities'

Tyler B. Lindley (J.D. Chicago '21), The Writ-of-Erasure Fallacy, Remedial Limits, and the Balance of Powers 

Nelson Lund (George Mason), Bruen’s Preliminary Preservation of the Second Amendment (Federalist Society Review)

Jennifer Mascott (George Mason), The Ratifiers' Theory of Officer Accountability 

Michael W. McConnell (Stanford), Impeachment and Trial After Officials Leave Office (Missouri Law Review) 

Robert G. Natelson (Independence Institute), The Power to Restrict Immigration and the Original Meaning of the Constitution’s Define and Punish Clause 

Judge Andrew Oldham (Fifth Circuit) & Adam Steene (independent), The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma 

James Cleith Phillips (Chapman), Which Original Public? (Chapman Law Review)

Robert J. Pushaw (Pepperdine), The Original “Market” Understanding of the Commerce Clause: Insights From Early Federal Practice and Precedent (Brigham Young University Law Review) 

Micah Quigley (University of Chicago J.D. '21), Article III Lawmaking (Geoge Mason Law Review)

Jeremy Rabkin (George Mason), Commerce with the Indian Tribes: Original Meanings, Current Implications (Indiana Law Review) 

Andrea L. Roth (Berkeley), The Lost Right to Jury Trial in 'All' Criminal Prosecutions (Duke Law Journal)

Leonid Sirota (University of Reading), Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation (Queen’s Law Journal)

Chad Squitieri (Catholic), Towards Nondelegation Doctrines (Missouri Law Review)

Lawrence B. Solum (Virginia), The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning (Boston U. Law Review)

Seth Barrett Tillman (NUI Maynooth) & Josh Blackman (South Texas), Offices and Officers of the Constitution, Part II: The Four Approaches (South Texas Law Review) 

Ilan Wurman (Arizona State), Reconstructing Reconstruction-Era Rights (Virginia Law Review)

01/12/2023

The Year in Review: Originalism-Oriented Articles of 2022 (Part 2) – The Top 25 Most Downloaded New Papers
Michael Ramsey

This post continues the retrospective on originalism scholarship in 2022 - see here (books) and here (articles part 1) for the first two posts.  These are the 25 (actually 26 due to a tie) most downloaded originalism/textualism-oriented new papers posted on SSRN in 2022, as featured on the Originalism Blog.  (Here is the list for 2021).

Of course this measure has substantial limitations, including that it favors papers posted early in the year; that not all important papers are posted on SSRN; and that number of downloads does not really prove anything about a paper except how many times it was downloaded.  (Also I disregarded book reviews, as they are already noted in the books post).  But with those caveats, here's the list:

1.  David B. Kopel (Independence Institute), Restoring the Right to Bear Arms: New York State Rifle & Pistol Association v. Bruen

2.  J. Joel Alicea (Catholic), The Moral Authority of Original Meaning

3.  Alex Reinert (Cardozo), Qualified Immunity's Flawed Foundation

4.  Carolyn Shapiro (Chicago-Kent), The Independent State Legislature Claim, Textualism, and State Law

5.  Conor Casey (Liverpool) & Adrian Vermeule (Harvard), Myths of Common Good Constitutionalism

6.  Nikolas Bowie (Harvard) & Daphna Renan (Harvard), The Separation-of-Powers Counterrevolution

7.  Cass R. Sunstein (Harvard), 'This'

8.  Orin Kerr (Berkeley), Katz as Originalism

9.  William Baude (Chicago), Severability First Principles

10.  Stefan Th. Gries (University of California, Santa Barbara Department of Linguistics); Michael Kranzlein (Ph.D. candidate, Georgetown University Department of Computer Science); Nathan Schneider (Georgetown University, Linguistics and Computer Science); Brian G. Slocum (McGeorge) & Kevin Tobia (Georgetown), Unmasking Textualism: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond

11.  Danielle D'Onfro (Washington University in St. Louis) & Daniel Epps (Washington University in St. Louis), The Fourth Amendment and General Law

12. Julian Davis Mortenson (Michigan) & Nicholas Bagley (Michigan), Delegation at the Founding: A Response to the Critics

13.  Kevin Tobia (Georgetown), Brian G. Slocum (McGeorge) & Victoria Nourse (Georgetown), Ordinary Meaning and Ordinary People

14.  David Gans (Constitutional Accountability Center), Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion

15.  Robert J. Delahunty (St. Thomas) & John Yoo (Berkeley), Who Counts: The 12th Amendment, the Vice President, and the Electoral Count

16 (tie).  Katie R. Eyer (Rutgers), Disentangling Textualism and Originalism 

16 (tie).  Philip Hamburger (Columbia), Nondelegation Blues

17.  Evan D. Bernick (Northern Illinois) & Christopher R. Green (Mississippi), There Is Something that Our Constitution Just Is

18.  Mark W. Smith (Ave Maria), “Not all History is Created Equal”: In the Post-Bruen World, the Critical Period for Historical Analogues is when the Second Amendment was Ratified in 1791, and not 1868

19.  William Baude (Chicago) & Stephen E. Sachs (Harvard), The Official Story of the Law

20.  Marc O. DeGirolami (St. John's), Traditionalism Rising

21.  Lawrence B. Solum (Virginia) & Max Crema (Georgetown J.D. '20), The Original Meaning of “Due Process of Law” in the Fifth Amendment

22.  Tara Leigh Grove (Texas), The Misunderstood History of Textualism

23.  Kurt T. Lash (Richmond), Roe and the Original Meaning of the Thirteenth Amendment

24.  Owen Gallogly (Harvard), Equity's Constitutional Source

25.  Tara Leigh Grove (Texas), Testing Textualism’s 'Ordinary Meaning'

01/11/2023

The Year in Review: Originalism-Oriented Articles of 2022 (Part 1)
Michael Ramsey

Continuing my 2022 originalism retrospective (see here for the first post on 2022 books), I turn to originalism-oriented articles featured on the blog in the past year.  I plan to highlight some of the most important articles (in my view), but to avoid conflicts of interest, I'll first note originalism-oriented articles from my Originalism Blog co-bloggers and USD law school colleagues, posted on SSRN in 2022. 

Evan D. Bernick and Christopher R. Green, There Is Something that Our Constitution Just Is

Steven Douglas Smith, The Constitution, the Leviathan, and the Common Good (Constitutional Commentary) (reviewing Adrian Vermeule, Common Good Constitutionalism)

Steven Douglas Smith, Presently Absent, or Absently Present? The Curious Condition of Natural Law (American Journal of Jurisprudence)

Mila Sohoni, The Major Questions Quartet (Harvard Law Review)

Mila Sohoni, Equity and the Sovereign (Notre Dame Law Review)

John Vlahoplus, Living Recipes . . . and Constitutions (Notre Dame Law Review Reflection)

01/10/2023

Chad Squitieri on Adrian Vermeule and John Henry Newman
Michael Ramsey

At Law & Liberty, Chad Squitieri (Catholic): Is the Administrative State a "Faithful Development"?  From the introduction:

Throughout his career, Harvard Law Professor Adrian Vermeule has been a vocal defender of the administrative state. He continues that defense in Common Good Constitutionalism. There, he contends that “[a]ny theory of law that does not take account of” the administrative state “is, merely for that reason, grievously defective.” Unsurprisingly, he concludes that his theory of law—Common Good Constitutionalism—successfully accounts for the administrative state, which he describes as “the main locus and vehicle” for translating “the goods of peace, justice, and abundance . . . . into modern forms such as health, safety, a clean environment . . . and economic security.”

Vermeule contrasts his theory of constitutionalism (including its account of the administrative state) with progressive constitutionalism. Both theories seek to develop principles over time. But for Vermeule, progressive constitutionalism goes too far in that it leads to both “genuine” and “corrupt” developments. Vermeule thus acknowledges a need for “an account of which developments are genuine and which are corrupt.” For such an account, he turns to St. John Henry Newman’s Essay on the Development of Christian Doctrine.

In that essay, Newman articulates seven “notes” for distinguishing genuine “developments” from “corruptions.” Vermeule contends that an application of these notes demonstrates that the administrative state is a faithful development of the principles underlying “our law.” But Vermeule’s defense of that position is, respectfully, unconvincing—especially if “our law” includes the Constitution of the United States. The shortcomings in his defense stem in part from his disclaiming any need to “parse through” Newman’s seven notes “individually, because their essential aim and thrust is clear enough.”

In this essay, I offer a closer parsing of Newman’s seven notes of the sort that Vermeule avoids. While there may be ways to defend the administrative state’s constitutional legitimacy, a gesture towards Newman’s seven notes is not one of them. ...

John Henry Newman (1801-1890) was (per Wikipedia) a "controversial" English Anglican-turned-Catholic theologian about whom I had not given any thought prior to yesterday.  What his views could have to do with the meaning of the U.S. Constitution remains something of a mystery to me, but in any event it's good to get them stated correctly.

01/09/2023

The Year in Review: Originalism-Oriented Books of 2022 [Updated]
Michael Ramsey

Continuing an Originalism Blog tradition, here are last year's leading books of originalist interest, as featured on this blog (my subjective assessment).  (See here for the 2021 list).  This year I'm adding links to originalist-oriented book reviews for some of them.

Claire Rydell Arcenas (University of Montana - History), America's Philosopher: John Locke in American Intellectual Life (U. Chicago Press)

Erwin Chemerinsky (Berkeley), Worse Than Nothing: The Dangerous Fallacy of Originalism (Yale University Press), reviewed by Adam White here

Edward Erler, The United States in Crisis: Citizenship, Immigration, and the Nation State (Encounter Books), reviewed by Jeffrey Polet here

Gerard Magliocca (Indiana McKinney): Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press)

Vincent Phillip Muñoz (Notre Dame): Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses -- Natural Rights and the Original Meanings of the First Amendment Religion Clauses (Univ. of Chicago Press), reviewed by Steven D. Smith here

Peter M. Shane (Ohio State), Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency (University of California Press), Yale Journal on Regulation's Notice and Comment Blog symposium on the book here

Steven D. Smith (San Diego), Larry Alexander (San Diego), James Allan (Queensland) & Maimon Schwarzschild (San Diego): A Principled Constitution?: Four Skeptical Views (Lexington Books)

Adrian Vermeule (Harvard), Common Good Constitutionalism (Polity), with a flood of reviews, including by Chris Green on this blog, Richard Reinsch here, Randy Barnett here, Mark Pulliam here, Steven D. Smith here, and William Baude & Stephen Sachs here

Peter J. Wallison & John Yoo, eds., The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine (AEI Press), with a chapter by co-blogger Mike Rappaport, and reviewed by Richard Reinsch here

 I'm sure I've missed some important candidates, so I invite reader nominations.

UPDATE:  A reader suggests Kermit Roosevelt III (Penn), The Nation That Never Was: Reconstructing America’s Story (University of Chicago Press 2022).  Looks good to me.

01/08/2023

The House Speaker Election: Unnecessary Collateral Delay?
Bryan Wildenthal

[Ed.: For this guest post we welcome Bryan H. Wildenthal, Professor Emeritus, Thomas Jefferson School of Law, and Visiting Professor at University of San Diego School of Law, most recently in Spring 2021.]

(Note to colleagues: I originally drafted these thoughts in an email to mostly non-lawyer friends and family while the deadlock was on-going, so please forgive some rehashing of familiar hornbook points of law. I have a done a bit of additional research for this blog posting but want to generally preserve the original style.)

One of the most puzzling aspects, for me, of the four-day deadlock over electing Kevin McCarthy as the new Speaker of the U.S. House of Representatives, has been the oft-repeated claim that reelected and newly elected members of the House could not even be sworn in as such until a Speaker was first elected by the members-elect (with the newly elected Speaker then swearing in all the other members).

This procedure, right off the bat, was and remains one of obviously dubious constitutionality. It seems to put things exactly backward.

Article I of the Constitution clearly states (Section 2, Clause 5) that “[t]he House of Representatives shall choose their Speaker and other Officers ....” Members-elect are not empowered to act as members of the House until they are sworn in, so how can they exercise the constitutionally specified power to elect the Speaker? The constitutionally proper order of procedure would be for all members-elect to first be sworn in as members and only then elect the Speaker.

The “terms” of all members-elect of the current House (and newly elected Senators) automatically began at noon on Tuesday, January 3, pursuant to Section 1 of the 20th Amendment (ratified in 1933; before that the date had long been set by statute as March 4 but was not specified by the Constitution). But of course, even with their terms having begun, House members-elect could not actually exercise any of the powers of members before taking the legally required oath of office.

Actually, it’s a bit more complicated than that. The Constitution explicitly requires, in Article II, Section 1, Clause 8, only that the President of the United States take the oath “before ... enter[ing] on the Execution of [the] Office.” Article VI, Clause 3, applying to all members of Congress (House or Senate) and all other federal officers, merely states that they “shall be bound by Oath or Affirmation, to support this Constitution ....”

However, I think most would agree it’s a necessary implication of Article VI that members of Congress (and the president and all other federal officers) must take the oath (or make the “affirmation”) before exercising any of their powers. Otherwise, how would they “be bound by” it? It would be deeply troubling, to say the least, to imagine members-elect voting on matters before Congress, going to classified hearings, and so forth, without yet having formally committed themselves to support and uphold the very Constitution creating and governing their offices and powers!

Yet, ironically, that is exactly the bizarre proposition suggested by the current topsy-turvy procedure of having members-elect (not yet sworn to uphold the Constitution) voting on who will become the new Speaker of the House!

The Speaker is one of the most important officers of the United States. For one thing, she or he is designated by statute as second in line to the presidency, following only the Vice President! It is utterly bizarre to think that persons not yet bound to uphold the Constitution could vote to elect such an important officer!

By the way, some legal scholars, including Professors Akhil and Vikram Amar in a 1995 Stanford Law Review article, have argued that the Speaker is not, in fact, an “officer” eligible for the presidential succession. But that is plainly erroneous, as I have shown in a conclusive 2020 rebuttal to the Amar argument (see https://ssrn.com/abstract=3714362).

Whether Democrats like it or not, Kevin McCarthy is now two heartbeats from the presidency, just as Nancy Pelosi was under Republican Presidents G.W. Bush and Trump. The concern that Newt Gingrich was only two heartbeats from the presidency during the Clinton-Gore administration appears to have been at least part of the motivation for the Amars to publish their article. I agree with the Amars that it’s deeply unwise, as a policy matter, for the presidential succession law to allow a potentially abrupt midterm change of political party control of the White House, but that has nothing to do with the issue of constitutionality.

I was educated by the excellent coverage of the recent Speaker deadlock by the New York Times that a federal statute currently on the books, 2 U.S.C. § 25, provides by law for the dubious procedure that electing a Speaker must be the first order of business of each newly elected House, even before members-elect are sworn in.

But this statute is almost certainly unconstitutional. Even aside from the objections noted above, Congress has no power to enact statutes governing the internal rules and operations of each House of Congress. Under our constitutional system, Congress is a body of only delegated powers. Nothing in the powers delegated to Congress by Article I (or elsewhere in the Constitution) suggests that Congress itself, as a bicameral body, has any authority over internal House (or Senate) proceedings, or the proper order of business with regard to electing a House Speaker or swearing in members.

This is not a debatable or ambiguous point. The Constitution is explicit and crystal-clear (Article I, Section 5, Clause 2) that the House and the Senate each, individually, have the power to “determine the Rules” of each body’s “Proceedings.” Such rules need not be enacted into federal law to have full force and effect. Indeed, any federal law purporting to enact, override, or modify such rules would be patently unconstitutional for the reasons noted.

I am far from expert on the rules of either House of Congress, a highly arcane and detailed subject falling outside constitutional law or my other specialties as a law professor. But a quick check of the rules of the House available online does not appear to reveal any rule addressing the order of business set forth by the federal statute cited above. If any such rule exists, it would be subject to the same constitutional challenge as the statute. Members-elect could not, of course, change such a rule until and unless they themselves were sworn in as members. But if such a rule were unconstitutional, they could properly disregard it.

It is unclear to me that anything in the House rules, or statutes such as that cited above, could legally prevent any member-elect from being sworn in, or simply “affirming” the requirements of Article VI, at any time. So why did any members-elect feel the need to sit around waiting for the disputed election of the Speaker to be resolved?

Nothing in the Constitution requires that the specified oath be administered by the Speaker of the House, or any other member of the House, just as the law nowhere specifies who may swear in the President. Generally speaking, almost any public officer, even a lowly notary public, may properly administer an oath. Members-elect could have gone to their local Mailboxes Etcetera to find one!

Furthermore, the constitutionally authorized alternative of “affirmation” is often forgotten or left unstated, but it underscores the points I’m making. To merely “affirm” the obligations set forth in Article VI would not seem to require anyone in particular to “administer” such an “affirmation,” as long as it is affirmed in a solemn manner for the public record.

It is merely a custom that the President is sworn in by the Chief Justice of the United States. When President John F. Kennedy was assassinated in Dallas in 1963, Vice President Lyndon B. Johnson was sworn in onboard Air Force One (on the tarmac at Love Field) by a local federal district judge, Sarah Hughes. Given Cold War tensions, it was thought to be urgent not to wait one minute more than necessary for him to be fully empowered to exercise all presidential powers, including as commander-in-chief of the armed forces.

Vice President Calvin Coolidge, upon learning of the death of President Warren Harding, was in fact sworn in by his own father, a local justice of the peace and notary public, by the light of a kerosene lamp at 2:47 am on August 3, 1923, in the family's rural Vermont home, which lacked either electricity or telephone.

Thus, I would suggest that any or all members-elect of the House could have been sworn in at any time during the farcical protracted deadlock the nation has just witnessed, by any available authorized officer, and could even have taken the individual initiative to swear the oath or make the affirmation.

They would then have been actually empowered by the Constitution to elect the Speaker, and at any rate could also have exercised, without any delay, all the other important powers of members of Congress, even if the issue of the Speaker’s election had remained deadlocked for some continuing period of time.

A final thought: Does the failure of the House to follow the proper constitutional procedure cast doubt on McCarthy’s status as Speaker? I think not, since the House’s subsequent actions (with all members sworn in) would appear to ratify the election by the members-elect. But it’s another troubling constitutional question. The House rules, and relevant statutes, should be promptly revised to conform to the Constitution (and common sense).

01/07/2023

Brian Leiter on Adrian Vermeule and Common Good Constitutionalism
Michael Ramsey

Brian Leiter (University of Chicago) has posted Politics by Other Means: The Jurisprudence of "Common Good Constitutionalism (University of Chicago Law Review, Vol. 90, Autumn 2023) (23 pages) on SSRN.  Here is the abstract:

Adrian Vermeule proposes an alternative to the two dominant schools of constitutional interpretation in the United States: originalism and “progressivism” (i.e., “living constitutionalism”). Against these approaches, he argues courts (and other institutional actors) should explicitly interpret the text of the Constitution, statutes, and administrative decrees with an eye to promoting the “common good” as understood in what he calls the classical tradition, meaning that it should be understood in distinctly non-utilitarian and non-individualist terms. Officials should do so using something like Dworkin’s method of “constructive interpretation” (hereafter CI), in which the aim is to reach the decision that would follow from legal principles that enjoy some degree of explanatory “fit” with prior official acts (court decisions, legislation, etc.), but in which the inevitable explanatory gap is filled by reliance on those principles that provide the best moral justification for the institutional history of the legal system. For Vermeule, those moral principles are ones that embody the natural law’s idea of the “common good” rather than (as he puts it) Dworkin’s “moral commitments and priorities…which [are] of a conventionally left-liberal and individualist bent.”

I argue that: (1) Vermeule’s conception of the “common good” is neither plausible, nor even defended, except by misleading appeal to a supposed “natural law”; unfortunately (2) there is no reason to think a “natural law” exists, and, in any case, the “natural law” tradition does not speak univocally on what constitutes “principles of objective natural morality (ius naturale)” contrary to the misleading impression Vermeule gives; and (3) Dworkin’s CI is not so easily severed from his moral commitments, and in any case, Vermeule never gives a reason to think it provides (even on Vermeule’s preferred version) a more plausible account of what courts and agencies have been doing than the legal positivist view of law, which he mostly misunderstands and consistently maligns. In the absence of any serious jurisprudential foundations, Vermuele’s so-called “common good constitutionalism” is just “politics by other means,” or, as Judge Pryor put it, “Living Common Goodism.”

(Via Brian Leiter's Law School Reports.)

I'm inclined to agree, as I've not been able to see what distinguishes common good constitutionalism from conventional living constitutionalism, apart from the fact that it does not consistently reach left-oriented results.

01/06/2023

The Meaning of "Bear Arms" in the Second Amendment
Will Foster

Every person had a right to bear arms; but if the arms borne were for a military purpose, the face of the thing was changed.” - William Wirt, Trial of Aaron Burr for Treason, 1807

In District of Columbia v. Heller, Justice Scalia’s majority opinion concluded that the term “bear arms” as used in the Second Amendment included carrying arms for both military and non-military uses. Subsequent scholarship, much of it relying on the method of corpus linguistics, has challenged that notion, arguing that “bear arms” had an exclusively military meaning in this context. Justice Breyer’s dissent in New York State Rifle & Pistol Assn. v. Bruen cited some of that scholarship in casting doubt on Heller’s reasoning, arguing that Justice Stevens’ Heller dissent was correct to read “bear arms” as having an “idiomatic meaning that, at the time of the founding, commonly referred to military service.”

In my respectful view, however, the historical record continues to strongly support reading “bear arms” in the Second Amendment as meaning simply “carry weapons” -- including for individual, non-military purposes. I base this judgment on literally thousands of pages of 18th and 19th century primary sources I’ve read over the last five years, and it is difficult to summarize all the evidence in a blog post. Here I simply wish to highlight a few points that seem to me particularly salient, drawing on my own research but also the reams of excellent scholarship produced by Stephen Halbrook and others.

As an initial matter, much of the corpus linguistics research repeatedly conflates context and meaning, just as Justice Stevens did in his Heller dissent. It may well be true that “bear arms” was most often used in military contexts, but so what? As Michael Showalter explains at length in a recent article, one meaning (sense) of a word can be used in multiple contexts without changing the meaning of the word. (Josh Blackman and James Phillips made a similar point in a thoughtful piece in 2018, as did William Baude in 2021.)

Even putting aside this methodological problem, the various revisionist readings of “bear arms” are not persuasive. For starters, a purely idiomatic reading of “bear arms” as meaning “perform military service” or “serve in the militia” (as advanced by Neal Goldfarb, among others) is directly contradicted by one of the most significant pieces of evidence about the Second Amendment’s original meaning (though Justice Scalia oddly failed to cite it): Prominent Federalist Tench Coxe’s 1789 published explanation of the Bill of Rights in the Philadelphia Federal Gazette. (James Madison wrote Coxe to offer his thanks for explaining the Bill of Rights to the public; Madison noted that he had already seen the article in the New York papers.) Here, in relevant part, is how Coxe described Madison’s draft of the Second Amendment: “[T]he people are confirmed by the next article in their right to keep and bear their private arms.” This makes it quite clear that “bear arms” did not have an idiomatic meaning in this context. If “bear arms” meant “perform military service,” what on earth could “bear their private arms” have meant? (“Perform their private military service?” Surely not.) 

Still, Coxe’s article cannot by itself rule out another possible interpretation of “bear arms”: A literal, non-idiomatic interpretation that is nevertheless limited to military service. This possible definition does not seem to appear in dictionaries, which limit themselves to fully idiomatic and fully literal meanings. But on this reading, “bear arms” would mean something like “carry weapons during military service.” The response to this argument, however, is that the historical record does not support it, either. 

Here is an example -- which, to my knowledge, I am the first to identify. In 1807, Aaron Burr was on trial for treason, and future U.S. Attorney General William Wirt was arguing on behalf of the prosecution. Attempting to rebut any contention that Burr’s possession of weapons was probative evidence of treason, Burr’s defense lawyer had pointed out that “[r]ifles, shot guns and fowling pieces are used commonly by the people of this country in hunting and for domestic purposes … In the upper country every man has a gun; a majority of the people have guns everywhere, for peaceful purposes.” Wirt, too, agreed that “[e]very person had a right to bear arms.” Nevertheless, he emphasized, “if the arms borne were for a military purpose, the face of the thing was changed.” In context, Wirt’s use of “bear arms” appears clearly unrelated to militia service. What Wirt seems to have meant is simply that although “every person” (including Burr) had a right to “bear arms” for lawful purposes like private self-defense and hunting, this right did not extend to the creation of a private military that rejected the lawful authority of the United States, which the prosecution argued Burr had intended. (Of course, the Second Amendment was designed in part to facilitate exercise of the natural right to revolution, but it did not confer a positive right to violent revolution.) In any event, Wirt’s statement would be incoherent if the “right to bear arms” already was limited to (government-sanctioned) “military purpose[s]” in the first place. If that were so, Wirt’s objection would simply have been that Burr and his followers were not acting as part of an official militia, so they clearly could not be exercising the right to bear arms. Instead, Wirt seems to have recognized that the right to bear arms encompassed a variety of lawful purposes.

This aligns with St. George Tucker’s views on the crime of treason in his 1803 edition of Blackstone’s Commentaries. Tucker noted that in England the presence of weapons could lead to a presumption of treason, but then asked, “But ought that circumstance of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself? In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.” To Tucker, it seems, a person could exercise “the right to bear arms” by “going out of his house” with “his rifle or musket in his hand,” for peaceful purposes as part of ordinary life.

The Massachusetts jurist George Thatcher -- who would go on to become a member of the First Congress -- used “bear arms” in an even more clearly non-military sense in a series of newspaper essays in 1786 and 1787, published under the name “Scribble Scrabble.” Thatcher argued that, although the 1780 Massachusetts Constitution only said that “[t]he people have a right to keep and to bear arms for the common defence,” the natural right to keep and bear arms extended to the use of arms for other purposes (and this full natural right remained in force until the legislature passed a law abrogating it). In the course of making this argument, Thatcher twice used the phrase “bear arms” to refer to hunting, a clearly non-military activity. He referred to a “right to keep & bear arms for squibing at pigeons and other game,” and “a right to keep and bear arms for their common defence, to kill game, fowl, &c.” These uses are devastating to the argument that the declaration of the Pennsylvania ratifying convention minority was merely engaged in sloppy drafting when it included “killing game” as one of the purposes of the right to bear arms in 1787. (Further evidence: In 1788, Alexander White -- who would become a member of the Virginia Ratifying Convention and represent his state in the First and Second Congresses -- paraphrased the Pennsylvania minority proposal as “the rights of bearing arms for defence, or for killing game.”)

Incredibly, a prominent historian managed to twist Scribble Scrabble’s writings to serve the militia-only reading of the Second Amendment by failing to recognize that the Massachusetts Constitution explicitly limited the right to bear arms to the “common defence,” a limitation that was explicitly rejected by the First Senate during the drafting of what became the Second Amendment.

To be sure, some defenders of the militia-only reading of the Second Amendment like to point to James Madison’s conscientious objector clause at the end of his Second Amendment draft: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Anti-individual right scholars tend to claim that this proves “bearing arms” to be synonymous with “rendering military service.” This certainly seems plausible upon a cursory reading of the text, but it turns out to be a highly problematic assumption.

First, it turns out that there are a number of Founding era uses of seemingly literal expressions like “use arms,” “wear arms,” and “carry arms” in similar contexts. For example, the Pennsylvania Militia Act of 1757 exempted from service those “conscientiously scrupling the use of Arms,” a phrase it used interchangeably with “conscientiously scruple the bearing of Arms,” “conscientiously scruple to bear Arms,” and “conscientiously scrupulous of bearing Arms.” Instead, such religious objectors could arrive at militia duty “without Arms.” That statute seems to draw an equivalence between the use of arms and the bearing of arms, which would only make sense if “bearing” meant “wearing/carrying” here (also, it would be rather strange to add “of” between “bearing” and “arms” if “bearing arms” were idiomatic). 

Likewise, Louisiana’s 1812 Constitution provided in Section 22 that “The free white men of this State, shall be armed and disciplined for its defence; but those who belong to religious societies, whose tenets forbid them to carry arms, shall not be compelled so to do, but shall pay an equivalent for personal service.”

And during the 1789 House debates over Madison’s proposed conscientious objector clause, the following was recorded (emphasis added): “Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary … [W]hat justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?” Obviously, “them” refers to “arms,” and “bear arms” takes its literal meaning, “carry arms.” It cannot be an idiomatic military meaning. (Goldfarb resists this conclusion, arguing that it is an example of “copredication” in which “bear arms” takes on both an idiomatic and a literal meaning. Although his linguistic expertise certainly far outstrips mine, that construction feels like a serious stretch to me.) 

While it may seem counterintuitive to us today, it seems that 18th and 19th century English-speakers thought it perfectly natural to say that someone was averse to carrying weapons. Perhaps “bear arms” was understood to convey “carry arms in the militiaduring discussions regarding militia duty, even though “bear arms” in another context would convey no such thing. As two scholars have argued: “Only with respect to militia duty did the Quakers require the government to act, namely, to give them special exemptions from militia duty and from militia-specific taxes or fees. Therefore, the fact that the Quakers requested an exemption from the duty to ‘bear arms’ in the militia does not prove that the phrase ‘bear arms’ refers only to militia-related duties.”

 It is also possible that the phrase “bear arms” was understood to refer only to the carrying of military-style weapons (whether or not as part of military service). Though it well postdates the Founding, an 1837 discussion in the Kentucky General Assembly, over “carrying concealed and deadly weapons,” seems to lend support to that interpretation (they are discussing that state’s 1799 Constitution): “‘Those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal services.’ Here the meaning of the phrase is not susceptible of misinterpretation. It is obvious that nothing could have been meant but the arms of a soldier. For what possible services to the State, in wearing or using the stiletto, could the convention have contemplated, as requiring to be compensated by the payment of an equivalent. The convention had reason to fear that persons, conscientiously scrupulous, might be compelled to bear the musket or rifle, in the service of the State, if not protected by the constitution.” The usage of “bear arms” here is restricted in the type of weapons it covers, but it is indisputably literal, not idiomatic. And some 19th century cases suggest that even those who interpreted the right to “bear arms” narrowly, as limited to carrying military-style weapons, did not view the right as limited to those people who served in an organized militia. Thus, as a practical matter, this interpretation, too, supports Heller and Bruen, since a wide variety of common weapons -- from pistols to stun guns -- have some conceivable military use.

 In any event, whatever the precise scope of the sense of “bear arms” used in conscientious objector provisions, there is considerable reason to think that it was a literal (not idiomatic) sense, and that it was broad enough to encompass the carrying of common weapons outside of service in an organized militia (though of course in this context it was referring to militia service). 

Another type of phrase that collective right proponents love to mention is “capable of bearing arms”/“fit to bear arms.” Again, these do seem idiomatic at first blush, but some period usage suggests otherwise (though admittedly the evidence here is thinner). In 1793, for instance, the Irish Parliament passed a militia-related statute that referred to those “qualified to bear fire-arms.” Incidentally, speaking of Irish statutes, one from 1796 uses the phrase “keep and carry arms,” phrasing that is remarkably similar to that found in the Second Amendment and does not seem military-related in context. (I also found a statement from an 1829 British parliamentary debate that “to keep and carry arms was also the right of the subject.”)

While I acknowledge that many scholars have made impressive arguments to the contrary, my view is that the notion that “bear” in the Second Amendment meant something different from “carry” would have been foreign to the Founders. This is not to say that Justice Scalia got everything right in Heller. For example, he at one point stated that “bear arms” refers to “carrying for a particular purpose—confrontation,” a peculiar limitation that arguably could exclude hunting and does not seem well-supported by the historical record. Nevertheless, in the main, Justice Scalia was correct in Heller: The term “bear arms,” as used in the Second Amendment, is not restricted to militia service. And the latest criticism of his opinion provides a cautionary tale about the use of corpus linguistics. Historical context matters, and legal interpretation cannot be reduced to a quantitative science.

01/05/2023

John Mikhail: The Path of the Prerogatives
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted The Path of the Prerogatives (American Journal of Legal History, forthcoming) (33 pages) on SSRN.  Here is the abstract:

The Path of the Prerogatives refers to the historical process by which the royal prerogative powers outlined in Blackstone’s Commentaries entered into American constitutional law. In 1953, Professor William Crosskey opened up a new window into the Constitution when he pointed out that many of Congress’s enumerated powers had been prerogatives of the British Crown. In The President Who Would Not Be King: Executive Power under the Constitution, Professor Michael McConnell takes Crosskey’s observation as a starting point of his own more systematic analysis of how the Committee of Detail divided these prerogative powers between Congress and the President. Yet neither Crosskey nor McConnell focuses much attention on the fact that many of these powers were already delegated to the United States by the Articles of Confederation. Nor do they ask whether the founders conceived of these powers primarily as legislative or executive powers, on the one hand, or government powers, on the other—a critical distinction embedded in the text of the Constitution by the Necessary and Proper Clause. This essay investigates these topics by tracing the path of the prerogatives from 1774 to 1776 in the writings of James Wilson, Benjamin Franklin, John Dickinson, and Thomas Jefferson, highlighting the crucial role played by these powers in both the Articles of Confederation and the Declaration of Independence. The essay also discusses two further issues that any adequate theory of presidential powers must confront: the distinction between government powers and executive powers, and the status of the United States as a legal corporation. Finally, the essay points to new evidence indicating that Jefferson borrowed specific language and ideas from Wilson when drafting the Declaration of Independence.

(Via Dan Ernst at Legal History Blog).

UPDATE:  At Legal Theory Blog, Larry Solum says: "Everyone who works on executive power will want to read this.  Highly recommended.  Download it while it's hot!"

01/04/2023

Aditya Bamzai: Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States
Michael Ramsey

Aditya Bamzai (University of Virginia School of Law) has posted Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States (Harvard Journal of Law and Public Policy, Vol. 45, No. 795, 2022) (42 pages) on SSRN.  Here is the abstract:

In the period immediately preceding the Constitution’s adoption, New Yorkers engaged in a spirited debate over whether a proposed delegation from the State to the federal government authorizing collection of an impost would violate the clause of the New York Constitution that vested “supreme legislative power” in the State Assembly and Senate. Some, like Alexander Hamilton, believed that the clause did not bear on delegations to the federal government, but rather governed the relationship between the branches of the New York government. Others believed that a grant of impost authority impermissibly transferred legislative power away from the state legislature. This Article addresses the debate over delegation that occurred during this controversy—which, in the words of Alexander Hamilton, “begat” the Convention that wrote the U.S. Constitution. The Article also addresses the equally significant debates over delegation that occurred during the consideration of the Constitution itself. As this Article shows, the debates that led to and surrounded the Constitution’s adoption were in no small part debates about the legality of delegating sovereign legislative authority.

And in conclusion:

During the period immediately before the Constitution’s adoption, members of the New York legal community—including Alexander Hamilton—debated whether the New York Constitution’s Legislative Vesting Clause prohibited the delegation of impost authority to the federal government. The participants in the debate accepted that New York’s Constitution incorporated a nondelegation principle, though they disagreed over the doctrine’s scope. The debate over the impost led, almost directly, to a debate over a new federal charter, the Constitution, in which the legality of delegation was again at issue.

These debates provide compelling evidence that key members of the generation that wrote the U.S. Constitution believed that the vesting of “legislative power” in one entity implicitly barred delegation of such power to another. The very debates that led to the adoption of the federal Constitution were, in part, debates about nondelegation.

01/03/2023

Allan Erbsen: Personal Jurisdiction’s Moment of Opportunity
Michael Ramsey

Allan Erbsen (University of Minnesota - Twin Cities - School of Law) has posted Personal Jurisdiction’s Moment of Opportunity: A Reform Blueprint for Originalists and Nonoriginalists (Florida Law Review, forthcoming) (65 pages) on SSRN.  Here is the abstract:

Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the proper foundation for limits on state power or are other clauses more relevant? What harms should limits on state power prevent and what harms should limits avoid creating? Decisions addressing these questions rely on ill-defined jargon rather than a coherent account of how to allocate jurisdictional power in a federal system. Yet reform may be possible. In 2021, the Court decided Ford Motor Co. v. Montana Eighth Judicial District Court, which unanimously rejected Ford’s extravagant challenge to jurisdiction in states where it sold thousands of cars. Unanimity masked Justices’ simmering frustration with precedents that made Ford’s challenge more plausible than it should have been. Two Justices went so far as to suggest reconsidering settled precedent from an originalist perspective. Nonoriginalist Justices will be wary of using historical analysis to interpret the Due Process Clause, but may otherwise be open to revisiting foundational assumptions about state jurisdiction.

This Article provides a blueprint for reforming personal jurisdiction doctrine that can appeal to both originalists and nonoriginalists. Finding common ground is essential at a time when the meaning of Due Process is contested and personal jurisdiction precedent is unstable. Part I uses Ford as a case study to explore why current rules governing personal jurisdiction excessively shield defendants from accountability. I argue that precedent underweights state interests and horizontal federalism concerns, overweights the importance of purposeful contacts with the forum, needlessly distinguishes between suit-related and state-related contacts, and relies on a categorical rather than sliding-scale approach to specific and general jurisdiction. Part II explains why some Justices are willing to embrace reform. Part III identifies challenges that confront efforts to rebuild personal jurisdiction doctrine on a more stable and sound foundation. A common theme uniting these challenges is that an originalist inquiry into personal jurisdiction must navigate the same complexities that have undermined nonoriginalist jurisprudence. There is a risk that originalist methods will elide these complexities and create a veneer of reform that obscures doctrinal incoherence. Similarly, there is a risk that nonoriginalists will gloss over these complexities rather than joining with originalists to find a mutually acceptable path toward reform. The Article therefore proposes eight criteria for rebuilding personal jurisdiction doctrine that Justices should consider regardless of the interpretive methodology they employ. This framework can help the Court seize an opportunity to repair a broken field of constitutional law.

01/02/2023

William Eskridge, Brian Slocum & Kevin Tobia: Textualism's Defining Moment
Michael Ramsey

William N. Eskridge (Yale Law School), Brian G. Slocum (University of the Pacific - McGeorge School of Law) & Kevin Tobia (Georgetown University Law Center; Georgetown University Department of Philosophy) have posted Textualism's Defining Moment (70 pages) on SSRN.  Here is the abstract:

Textualism promises simplicity: Focus on the text, the whole text, and nothing but the text. But legal interpretation is not so simple. Now that textualism is the Court’s dominant interpretive theory, every interpretive dispute implicates textualism, and the theory’s inherent complexities have begun to surface. This Article is the first to document the major categories of theoretical choices that regularly divide modern textualists, and for which textualism currently provides no clear answers.

As we demonstrate, there are at least twelve analytical steps in modern textualism. Textualists’ failure to adequately explain their approach to these steps renders the methodology hard to apply, as well as less constraining and predictable. Assuming that the newest textualism’s legitimacy is grounded in language and the rule of law, we suggest some resolutions for the most serious debates. Textualism has ascended as the Court’s dominant theory of statutory interpretation, but its success and legacy depend on whether its torchbearers are prepared to better define the theory and commit to it.

12/23/2022

Further Programming Note
Michael Ramsey

Thanks to the co-bloggers, guest bloggers and reader suggestions that have kept our content up this week.  But now it really is time for a holiday hiatus.  More to come in the New Year.

Ronald Levin on the Major Questions Doctrine
Michael Ramsey

Ronald M. Levin (Washington University in St. Louis - School of Law) has posted The Major Questions Doctrine: Unfounded, Unbounded, and Confounded (62 pages) on SSRN.  Here is the abstract:

As recently explicated by the Supreme Court in West Virginia v. EPA, the major questions doctrine provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Supreme Court has given for enforcing the doctrine do not withstand scrutiny even on their own terms.

In West Virginia, the Court relied heavily on its prior precedents, but this article’s review of the history of the doctrine highlights the Court’s repeated use of overstatements of the holdings in these prior cases as a substitute for giving reasons to justify the doctrine’s expanding scope.

The majority and concurring opinions in West Virginia did offer some normative arguments on behalf of the doctrine, but the article takes issue with them. For example, the doctrine’s supposed foundations in the nondelegation doctrine and other separation of powers principles are unsatisfactory, because they do not supply a credible basis for distinguishing major rules from non-major rules. Moreover, the major questions doctrine appears to make overly optimistic assumptions about the extent to which our currently polarized and dysfunctional Congress can be counted on to resolve pressing and important social policy problems itself.

Thus, the Court has not provided an adequate justification for the major questions doctrine, which threatens not only to weaken administrative governance, but also to politicize the Court’s decisionmaking in cases involving major questions (a regrettably ill-defined term). Although the Court may be unlikely to abandon the doctrine entirely, the article’s analysis suggests that the Court should apply it restrictively rather than expansively.

Via Larry Solum at Legal Theory Blog, who comments: "Recommended.  The paper does not consider the possibility that the Major Questions Doctrine is a 'compensating adjustment' that aims to achieve an originalist second best."

My tentative views of the major questions doctrine align with Professor Solum's suggestion. Also, I don't think the doctrine makes "overly optimistic assumptions about the extent to which our currently polarized and dysfunctional Congress can be counted on to resolve pressing and important social policy problems itself," or indeed makes any assumptions at all in this regard.  It only says that if major social policy problems are to be resolved at the federal level, Congress is the institution to do it.  If Congress can't or won't, the problems aren't resolved at the federal level and are left to the states.

12/22/2022

Antebellum Enforcement of Gun Laws and the Limits of Law Office History: A Response to Professor Leider
Saul Cornell

[Ed.: This guest post continues the debate (see here, here and here) over originalism and the Second Amendment, with Professor Cornell's response to this post by Robert Leider.]

As I explained in my earlier blog post, and in dozens of articles, Second Amendment “originalism” has too often become an exercise in “law office history.” Robert Leider’s response to my most recent blog post beautifully illustrates many of these defects in Second Amendment scholarship, problems  that have been well documented by multiple scholars.

I have debunked Leider’s claims about surety laws and the  legality of habitual armed travel in antebellum America elsewhere but it is worth highlighting a few of the problems with his analysis because they shed additional light on the limits of law office history in Second Amendment scholarship.  Events in 1893, transpiring more than a half century after the enactment of the Massachusetts surety law,  are simply not  relevant to understanding what happened in the 1830s. He continues to use documents from later periods to illuminate ideas from an earlier time, a method that effectively reads history backwards.

Moreover, Leider  erroneously asserts that a grand jury charge is little more than “a welcome” with no probative value for understanding the public meaning of laws enacted in early America. No serious legal historian would accept his characterization of grand jury charges, particularly when they were published, reprinted, and drew praise by the legal community at the time.

Leider has also misinterpreted the prosecution of the Snowden brothers, two African American abolitionists who were charged with violating the 1830s Massachusetts surety law. The trial judge in that case unambiguously interpreted the Massachusetts surety law as prohibiting armed travel, absent a reasonable fear. Leider badly misrepresents the history of the case in both his SSRN posting and in his amicus brief in Bruen. He ignores the express statement made by the judge presiding in the case  who clearly interpreted the law in the same way that Thacher did in his grand jury charge. Leider, it is worth noting, has found no jurist from Massachusetts from this period who supports his view of the state’s surety law. I have provided evidence of three respected jurists who all endorsed the view that armed travel was prohibited, absent a specified threat (the issue at the core of Bruen.)

Leider’s  methodology is deeply flawed and violates multiple rules of historical inquiry. He relies on an impressionistic sampling of newspapers using digital searching tools,  a methodology that invites error.  I agree that more research is certainly needed in this field, but key word searching is not a substitute for well-designed historical research, even  if one is focusing primarily on newspapers. Leider clearly did not look at a broad range of newspapers from the period and  he certainly did not pay attention to the ideological bias of different newspapers when interpreting their accounts. If he had  followed  these basic procedures  his conclusions would have been different.

Context is key to making sense of this episode. Leider seems unaware that the Snowdens were arrested after considerable tumult in Boston, unrest so severe that the militia was mobilized. Nor does he seem aware that the Snowdens were apprehended outside of a city armory. Finally, he ignores the fact that radical abolitionists in Boston had advised the city’s  Black population to disobey  state law and arm themselves. Although one can sympathize with the plight of the  city’s  abolitionists and African-American citizens, there is no doubt that the Snowdens  violated the law prohibiting armed travel absent a specified threat. Moreover, the decision of the judge in the case  to impose a surety directly contradicts Leider’s claims about the meaning and enforcement of the Massachusetts law. Leider’s account is not a form of originalism, but a bizarre form of  anti-originalism that takes radical political statements from abolitionist newspapers as a better guide to the meaning of the law than the pronouncements of two of the state’s most respected jurists. To compound this interpretive error, Leider also mistakenly claims the law was not enforced because the judge imposed no penalty beyond the surety. But this ignores the fact that the only penalty provided by the law was  the imposition of a surety. Thus, Leider not only misinterpreted the law, but he also misconstrued the outcome of the case.

Professor Leider needs to correct these errors in  his future scholarship and other scholars need to be aware of these errors before citing his work as a dependable authority on the early history of gun regulation. In short, Leider’s work  shows that the problem of law office history continues to cast a long shadow over Second Amendment scholarship and jurisprudence.

12/21/2022

A Response to Professor Cornell on the Second Amendment
Robert Leider

[Ed.: This guest post is from Robert Leider, Assistant Professor of Law at George Mason University Antonin Scalia Law School, responding to this Originalism Blog guest post by Saul Cornell.]

Historians and legal scholars are presently debating the historical scope of the right to bear arms.  One of the most prominent participants in this debate, Professor Saul Cornell, has a recent post on the Originalism Blog criticizing my work.  But his post does not respond to most of the objections that I have raised against his arguments, so I wanted to explain where I see the debate in the hope that we can move it forward.

Saul Cornell does not believe that the Second Amendment protects the general right of individuals to carry arms in public.  In support, Saul Cornell has argued that antebellum America had two regulatory traditions governing the carrying of weapons.  The South, he claims, had a “permissive” culture that allowed people to carry arms openly, while prohibiting the carrying of concealed weapons.  The North, he says, had a restrictive culture, generally prohibiting individuals from carrying weapons.

With respect to the North’s restrictive culture Cornell purports to find these restrictions in an 1836 Massachusetts law (later copied by nine other jurisdictions), which provided that individuals who went armed with dangerous weapons “without reasonable cause to fear an assault or other injury” may have to find sureties of the peace “on complaint of any person having reasonable cause to fear an injury, or breach of the peace.”  He also claims that the common law crime of going armed to the terror of the people (codified by the English Statute of Northampton) generally prohibited going armed.

On its face, the Massachusetts statute does not prohibit publicly carrying weapons.  The statute only provides that individuals carrying weapons may have to find sureties to keep the peace, and only if a person “having reasonable cause to fear an injury, or breach of the peace” files a complaint.  Yet, Cornell argues that my statutory reading is anachronistic.  Relying on a grand jury charge by Judge Peter Oxenbridge Thacher, Cornell argues that this statute was a general prohibition of public carry.  

In response, I have made the following arguments:  (1) Thacher’s grand jury charge was just a welcome address to members of the grand jury.  It was not a binding legal instruction in any case.  (2) Contemporary newspaper articles, including some written by nineteenth-century lawyers, repeatedly state that Massachusetts had no statute forbidding the carrying of weapons.  (3) We have no evidence that the surety laws were regularly enforced, particularly against those carrying weapons for lawful purposes including self-defense.  Searches of databases of nineteenth-century newspapers (which reported on local court matters) turn up extraordinarily few cases involving either the surety law or the common-law crime of going armed to the terror of the people.  What cases exist mostly involve interpersonal violence.  Newspapers that I have found in three jurisdictions complain that the surety law generally went unenforced.  One of those newspapers, advocating for Michigan to pass a law prohibiting concealed weapons, said that if the surety law was a general restriction on public carry, then it was unconstitutional.  (4) There is not a single reported decision challenging the surety law in any of the ten jurisdictions in which it was passed.  This is odd.  Statutory restrictions on the carrying of concealed weapons were repeatedly challenged in courts of record as violating the right to bear arms.  Yet, in the ten jurisdictions with a supposed general ban on public carry, the statute evades judicial review in all of them.  (5) The Massachusetts Supreme Judicial Court rejected a defendant’s challenge to an 1893 Massachusetts law prohibiting parading in cities and towns with arms.  It is hard to explain the need for the 1893 law if the 1836 law already prohibited public carry.  Even more odd, the Massachusetts Supreme Judicial Court never mentioned the state’s supposed 60-year history of restricting public carry when it upheld the law.  (6) These surety laws have no relevance for interpreting the constitutional right to bear arms.  They were passed decades after the codification of the right.  There is no evidence that the legislatures that passed these laws understood them as a general ban on public carry; nor is there evidence (if the legislatures understood these laws to be a general ban) that they debated whether such a general ban was consistent with the constitutional right to bear arms.  No judicial decision addresses that issue either. 

To these six reasons, I can now add a seventh that confirms my reading:  a July 19, 1940 letter of the Virginia Attorney General, which stated that “[t]here is no statute prohibiting the carrying of revolvers that do not come within he prohibition against concealed weapons.”  Opinions of the Attorney General and Report to the Governor of Virginia, From July 1, 1940 to June 30, 1941, at 52.  The opinion then cites the surety provision and notes that a person going armed “may be required to give a recognizance.”

Against all this evidence, Cornell comes back to Judge Thacher’s comments over and over.  Cornell’s blog post on June 1, 2022, is mostly an attempt to bolster Judge Thacher’s authority.  Now, in his December 19 blog post, Cornell criticizes me for being “reduced to making the absurd argument that Thacher’s gloss on his state’s own law does not count because it was uttered in a grand jury charge, not a trial.”  He continues, “anyone with even a smattering of knowledge about antebellum American legal culture would understand that grand jury charges were exceedingly important civic and legal occasions. These events offered learned judges, the ‘sages of the law,’ an opportunity to expound the meaning of statutes and other important legal texts.”

Cornell’s argument is more ad hominem than responsive.  The fact that Thacher’s address was a welcome address, not a legal instruction, is important.  Because this was only a welcome address, Thacher may not have been talking with the utmost legal precision when he declared that Massachusetts law generally prohibited people from going armed.  But even if he was, his understanding of the law was not subject to appellate review.  More importantly, however, my argument cannot be “reduced” to an attack on Thacher’s authority.  Cornell is correct that I attack Thacher’s position.  But I do so after examining a wide variety of other sources, which undermine Thacher’s understanding of the statute.  Cornell has never responded to this other evidence.

Nor has Cornell done the kind of archival research necessary to support his claims.  Justice of the peace records are difficult to find; but many are extant in the surety jurisdictions.  Cornell has criticized my efforts to comb newspaper records to find reports of surety cases.  But my searches have found more surety cases than he has unearthed.  If Cornell does not like my approach, he is free to do his own archival research.  I would welcome the opportunity to see the cases Cornell is able to uncover, and how many of them involve people carrying weapons for lawful self-defense.

Cornell also claims that the Statute of Northampton was a broad ban on public carry and, in support, he cites Michael Dalton’s Country Justice manual for justices of the peace.  Like the surety laws, the Statute of Northampton was a law that was technically extant, but, by the eighteenth century, the law was (to the best of our knowledge) hardly ever enforced.  As a result, the case law involving the crime was seriously underdeveloped.  We have many (often conflicting) opinions of various treatise writers on their understanding of the crime.  But we have no cases to sort out whose understanding was correct. 

Given this, it is hard to say with any certainty what constituted the elements of the offense.  Cornell is right that “criminal intent and mens rea were governed by different rules in the Founding era.”  And he is likely right that the crime did not require specific intent to terrorize.  But there is substantial authority to support that, by the eighteenth century, the crime required going armed in a manner likely to provoke a breach of the peace.  In this country, the single state supreme court (North Carolina) to analyze the crime in any depth held that the crime prohibited going armed “to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.”

Finally, I think it is important to step back from the trees and look at the forest.  The question in all this is whether the right to bear arms guarantees to individuals the general right to carry arms publicly.  Substantial precedent in this country holds that such a right exists; and while states may regulate the right using their police powers, they may not abuse those powers to render the right a nullity.  Cornell’s chief intervention in this debate is based on the supposed regulatory traditions of long-disused statutes.  These statutes are relevant, but they are not the only thing we have to look at.

For instance, there are statutes on the books in multiple states that criminalize consensual sexual conduct, notwithstanding Griswold and Lawrence.  A future historian examining how early twenty-first century American law regulated consensual sexual relations would get a distorted view of our law if he focused only on those statutes.  Likewise, we should analyze the scope of the right to bear arms by examining all of the legal evidence from the relevant time.  We should not define the right primarily by looking to a bunch of rarely enforced statutes whose claim to fame is that they were dug up by a twenty-first century historian.

12/20/2022

Josh Halpern & Lavi Ben Dor: Boycotts: A First Amendment History
Michael Ramsey

Josh Halpern (Research Fellow and Lecturer of Law, Harvard Law School) & Lavi Ben Dor (University of Pennsylvania Law School J.D. '20) have posted Boycotts: A First Amendment History (44 pages) on SSRN.  Here is the abstract:

Over the past decade, more than half of U.S. states have enacted laws that prohibit recipients of public contracts and state investment from boycotting the State of Israel. These so-called “anti-BDS laws” have triggered a debate over whether the First Amendment’s Free Speech Clause includes a “right to boycott.” This Essay is the first to take up that question thoroughly from a historical standpoint. Examining the boycott’s constitutional status from before the Founding to the present era, we find that state actors have consistently treated the boycott as economic conduct subject to governmental control, and not as expression presumptively immune from state interference. Before the Founding, the colonists mandated a strict boycott of Britain, which local governmental bodies enforced through trial proceedings and economic punishments. At common law, courts used the doctrine of conspiracy to enjoin “unjustified” boycotts and hold liable their perpetrators. And in the modern era, state and federal officials have consistently compelled participation in the boycotts they approved (like those of apartheid-era South Africa and modern-day Russia), while prohibiting participation in the ones they opposed (like that of Israel).

The Essay concludes that modern anti-boycott laws not only fit within, but improve upon, this constitutional tradition. As the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware illustrates, the common law approach risks violating the First Amendment if the doctrine is applied to restrict not only the act of boycotting or refusing to deal, but also the expressive activities that accompany such politically-motivated refusals. Modern anti-boycott laws avoid that problem by surgically targeting the act of boycotting, while leaving regulated entities free to say whatever they please. From the standpoint of history, these laws reflect First Amendment progress, not decay.

12/19/2022

Why Justice Bushrod Washington Rejected a “Deeply Rooted in History” Standard for Fundamental Rights and Instead Adopted a Broader “All Times” Standard
Andrew Hyman

Justice Bushrod Washington’s circuit court opinion in Corfield v. Coryell was the leading antebellum opinion on the Comity Clause of Article IV in the U.S. Constitution.  The Comity Clause says, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”  Corfield was later widely discussed during the Thirty-Ninth Congress, which wrote the similar clause called the Privileges or Immunities Clause in the Fourteenth Amendment.  I contend that Washington’s opinion was driven in a significant way by public relations and public diplomacy, and this under-appreciated aspect of his Corfield opinion probably has implications for the meaning of the similar clause in the Fourteenth Amendment.  Washington intelligently and deliberately adopted an “all-times” standard for fundamental rights, instead of adopting a “deeply-rooted-in-history” standard, as I will explain presently.

The text of the Comity Clause bars discrimination by a host state against visitors who are citizens from other states.  There are longstanding libertarian arguments that the Comity Clause should also prevent a state from violating natural rights of its own citizens, but that has always been a minority position, for good reason.  While the concept of “natural rights” has been known and respected for centuries, terms like “natural privileges” or “natural immunities” have been virtually unknown, and instead privileges and immunities have been understood for centuries as things that states grant or withhold regardless of whether natural rights are involved or not.  So, the correct consensus legal position for centuries has been (and remains) that the Comity Clause bars discrimination against citizens from out of state, but does not affect how a state treats its own citizens, although there is a possible textual exception that a state cannot prevent its citizens from leaving the state to go enjoy privileges and immunities in other states.  

Justice Washington agreed that the Comity Clause is mainly an anti-discrimination provision rather than a font of substantive natural rights, and indeed Washington wrote in his notes that, “the meaning of this article is that the citizens of each State shall within every other State have equal privileges or rights as the citizens of such State have, the words all privileges of citizens being equivalent to equal privileges.”  That’s the natural reading of the clause’s text.  The Corfield case involved a citizen of one state visiting another state to harvest oysters.  Although the text of the Comity Clause does grant visitors “all” privileges and immunities of citizens in the visited state, Washington reasonably understood the words “privileges and immunities of citizens” to mean traditional rights of citizenship rather than whatever rights are currently respected by a state as to its current citizens.  Washington wrote (emphasis added):

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. 

Instead of writing “at all times,” Washington could have written that the rights protected by the Comity Clause had to be deeply-rooted in history, or something like that.  There is a very significant distinction there, and Washington had good reason to favor the “at all times” formulation instead of the “deeply-rooted-in-history” formulation, given that the former includes recent and current times whereas the latter does not.  Washington understood from the plain text of the Comity Clause that it was a non-discrimination provision that protected citizens from out of state, and he had a strong motive to avoid suggesting that such visitors could be deprived of fundamental enforceable rights so long as the visited state’s own citizens were also deprived of fundamental enforceable rights, and so he defined his way out of that pickle.  Washington reasonably and carefully defined the word “fundamental” so any right that a state is presently declining to recognize is not “fundamental” even if it is deeply-rooted in history.  It would have been highly impolitic for Washington to suggest that the Comity Clause invites states to violate any fundamental rights it wishes, either with respect to native citizens or visiting citizens, and that is the reason why he defined a right as fundamental only if it was deeply-rooted in history and still protected by a state.  Even if you somehow doubt this rather obvious explanation, there is no doubt that the term “all times” includes both past and present whereas “deeply-rooted-in-history” only includes the past, and Washington used the former rather than the latter standard.  This ensured that states could treat categories of their own citizens however they want so long as they treat visiting categories of citizens the same way, as to rights deeply rooted in history, without stigmatizing a state that decides to treat both its own citizens and visiting citizens in new or unusual ways that depart from established tradition.

Fast forward now to 1866, when the Thirty-Ninth Congress was debating the Privileges or Immunities Clause.  That clause says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”  Those last three words “of the United States” are critically important in view of Corfield, and including those three words greatly expanded the scope of protected rights.  This assertion is different from Justice Miller’s assertion in the Slaughter-House Cases in 1873 that those last words of the PI Clause greatly narrowed the scope of protected rights, although Miller was 100% right to perceive that those words point to federal law rather than state law.  Had those three words not been included, then we would have to look at both state and federal law to determine what are the fundamental privileges and immunities in question, and states would be as free as they were in Corfield to exclude any right from fundamental status merely by not recognizing or enforcing it with respect to any category of their own citizens.  

Fortunately, those last three words (“of the United States”) were included in the PI Clause rather than excluded, and so we are called upon to look at federal law rather than state law to determine what rights are sufficiently fundamental that states must respect them.  Inevitably, that will include the rights found in the Bill of Rights, but it will also include federal statutory rights that have, at all times since 1776, been enjoyed by the citizens of the United States with respect to the government of the United States.  Such rights must be both deeply-rooted as well as currently in force (not merely deeply-rooted) in order to apply against the states via the PI Clause.  In other words, Congress has a substantive role under the PI Clause, with respect to unenumerated rights that are deeply-rooted in history; if Congress believes those rights to be outdated, then Congress can repeal them from federal law.  Otherwise, those rights that are deeply-rooted in U.S. history apply against the states via the PI Clause.  To properly interpret the Privileges or Immunities Clause, there is a need to go looking back to 1776 but no farther back, because we are examining rights of U.S. citizenship, not British citizenship; as Justice Washington put it, we should focus on rights that have been respected from the time of “becoming free, independent, and sovereign.”

Some modern scholars believe that the PI Clause is largely about equality and preventing discrimination of various sorts, rather than the interpretation that I’ve described above (for the first time publicly).  In my view, the Equal Protection Clause is broad enough to do that job, although there is likely some overlap between the two clauses.

Professor Lessig has recently written that Congress has a much broader substantive role under the PI Clause than the limited role discussed here, whereas the courts have said Congress has no such role at all; I don’t know what the best answer would be from a policy point of view, but properly understanding Corfield can certainly illuminate the policy choice made in the 1860s.

Second Amendment  Originalism and the Problem of Law Office History
Saul Cornell

[Ed.: This guest post is from Professor Saul Cornell, Paul and Diane Guenther Chair in American History at Fordham University, responding to this post by Stephen Halbrook, excerpted on this blog here.]

There is something deeply ironic about Stephen Halbrook’s  attack on my work as an example of law office history. Halbrook accuses me of engaging in law office history because I read a 1790s statute using the interpretive rules governing statutory construction from that period, not the modern rules Halbrook and other Second Amendment originalists typically employ in their anachronistic interpretations. Recovering what a law meant in the 1790s means using  18th century  interpretive conventions and applying the appropriate common law concepts to make sense of the text. Halbrook’s misreading of the text he cites is typical of originalists whose law office history methodology seems blithely unaware that lawyers and jurists in the Founding era operated with different rules and assumptions. I have made this point in several articles, pointed it out to Halbrook in person, and yet he persists in repeating claims that are demonstrably false. (See my  essay in Law and Contemporary Problems for further discussion.) Halbrook and other gun rights scholars  don’t understand that criminal intent and mens rea  were governed by different rules in the Founding era. Anyone who has read the foundational work of Columbia legal scholar George Fletcher and the more recent important work of Guyora Binder and Simon Stern would be familiar with the difference between the  objective view of  criminal mens rea familiar to Blackstone and modern criminal law’s subjective approach.  Sadly, Halbrook  and others like him live in a Second Amendment bubble cut off from serious legal history. Halbrook and other Second Amendment originalists typically prefer to cite other gun rights scholars and originalists and seldom engage with legal historians, particularly those who write about fields outside of the Second Amendment itself. This  insularity and parochialism  undercuts Halbrook’s credibility among  real scholars who regard him as little more than a hired gun doing the bidding of the gun lobby. (Both Halbrook and fellow Volokh Conspiracy contributor David Kopel have taken  buckets of cash from the NRA  to fund amicus briefs  and other pro-gun proselytizing.) Halbrook’s grasp of the relevant legal and historical materials necessary to understand Anglo-American law in this area is deficient on multiple counts. He does not seem familiar with  the exposition of  the Statute of Northampton in Michael Dalton’s Country Justice, the most widely reprinted and influential popular guide to the law from the eighteenth century.   Dalton’s account of the traditional prohibition on armed travel explains why Halbrook’s reading of the Massachusetts statute he cites is profoundly anachronistic. Traveling armed, Dalton reminded his readers, who included among others  John Adams and Thomas Jefferson, was a threat to the peace and a per se  violation  of the law because “it striketh a fear and Terror” in those who did not violate the law which prohibited traveling habitually armed. (Arming was permissible in a small number of well-defined  exceptions, but Halbrook and other Second Amendment originalists, most notably Joyce Lee Malcolm, consistently confuse the exception to these rules with the rules themselves.)  Indeed, as historian Patrick Charles has shown, the entire idea of a right to peaceable armed travel in public, a concept used by the  Bruen majority,  was invented by gun rights activists and planted in law reviews as part of a larger strategy to remake the Second Amendment into its current super-sized gun rights amendment, an interpretation that has little foundation in text, history, or tradition. To be sure, the American Revolution republicanized the concept of the peace and other common law ideas. American law did expand gun rights, but not in the way Halbrook and his cabal of activist pseudo-scholars have maintained. Massachusetts revised its Northampton-style surety law during the codification movement  in the early 19th century and the state’s leading criminal law authority, Peter Oxenbridge Thacher explained the meaning of the law in unambiguous terms. “In our own Commonwealth [of Massachusetts],” he reminded members of the grand jury, “no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, family, or property.”  Confronted by such clear  evidence that the leading criminal jurist in antebellum Massachusetts interpreted the legal limits on armed travel in a way that supports my argument and contradicts their  anachronistic libertarian reading,  Second Amendment originalists,  including David Kopel, Robert Leider, and Halbrook,  are reduced to making the absurd argument that Thacher’s gloss on his state’s own law does not count because it was uttered in a grand jury charge, not a trial. In fact, anyone with even a smattering of knowledge about antebellum American legal culture would understand that grand jury charges were exceedingly important civic and legal occasions. These events offered learned judges, the  “sages of the law,” an opportunity to expound the meaning of statutes and other important legal texts. Yet, in the upside-down world of Second Amendment originalism such evidence is precluded from consideration. The real question scholars interested in the historical meaning of the Second Amendment  must ponder is simple. Who is a better guide to understanding what early American firearms statutes meant: early American jurists, including Thacher, or modern libertarians steeped in the culture of today’s Federalist Society? Most historians would pick the former, Kopel and Halbrook obviously favor the latter. This fact alone renders their comments on the history of the Second Amendment ludicrous.

12/17/2022

Programming Note: Blog Holiday
Michael Ramsey

I will be taking a blog holiday for the balance of the year for family reasons.  Happy holidays to all and see you next year.

12/16/2022

Stephen Halbrook on the Second Amendment after Bruen [Updated]
Michael Ramsey

At Volokh Conspiracy, Stephen Halbrook (Independent Institute) is guest blogging on gun rights cases after the Supreme Court's Bruen decision.  Here are the posts so far:

America's Rifle -- The AR-15 is protected by the Second Amendment

 "Plain Text" -- When the Second Amendment's plain text covers conduct, it is presumptively protected. 

Did the Fourteenth Amendment Alter the Meaning of the Second Amendment? -- 1791, not 1868, is the key date for determining the original understanding of the Second Amendment 

Should Courts Appoint Historians as Experts in Second Amendment Cases? Courts, not “experts,” should say what the law is 

On the 1791 vs. 1868 issue (which is the one I'm most interested in):

When proposing the Fourteenth Amendment to Congress in 1866, Senator Jacob Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; … the right to keep and bear arms…." He averred that "the great object" of the amendment was "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." The design was not to change the nature of the rights, but to prevent the states from violating them.

The Second Amendment was ratified in 1791, and the Fourteenth Amendment was ratified in 1868. The Supreme Court stated in D.C. v. Heller (2008) and repeated this year in N.Y. York State Rifle & Pistol Ass'n v. Bruen: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them." So do we look for that understanding in 1791 or in 1868?

The simple answer would be that the substantive nature of the right is defined by reference to its origins in 1791, while the understanding that it's a fundamental right intended to be applied to the states would be found in 1868. But litigation-driven, preconceived outcomes are at work, few firearm restrictions existed at the Founding but more were adopted in the decades after the Fourteenth Amendment, and the incentive thus exists for opponents of the right to keep and bear arms to root for 1868 as the crucial date in order to find historical analogues to current restrictive laws.

...

The object [of the Fourteenth Amendment] was thus to extend the right to all citizens, not to change the nature of the right. As McDonald explained, Bill of Rights guarantees incorporated under the Fourteenth Amendment are enforced against the states "according to the same standards that protect those personal rights against federal encroachment." Just as the meaning of the rights to free speech and against unreasonable search and seizure are found in the understanding of 1791, so is the meaning of the right to keep and bear arms. The Supreme Court has never found that the primary meaning of any provision of the Bill of Rights is to be determined by how it was understood in 1868.

...

The sources cited [to the contrary]—a pre-Heller book by Prof. Akhil Amar and a pre-Bruen essay by Prof. Kurt Lash—fail to make a convincing case that the meaning of the Bill of Rights changed in 1868. First, its guarantees against federal violation have always been applicable since its ratification in 1791, and it would be incongruous to have a different Bill of Rights applicable to the states. Second, Supreme Court precedent has always looked to the 1791 understanding as the crucial period for the meaning of the guarantees, and a contrary rule invented for the Second Amendment has no basis in those precedents. Third, advocates of the 1868 theory rely on the privileges-or-immunities clause of the Fourteenth Amendment, but the Court has never relied on that clause for incorporation. And fourth, there is no indication that anyone at the time thought that this is what the Fourteenth Amendment would accomplish, and there is nothing in the text of the Amendment to support it, either.

From an originalist perspective, I think fourth point is the one that really matters (if true).

UPDATE:  A further post:

Analogical Reasoning and the Second Amendment

From the introduction:

In Bruen, the Supreme Court held that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." To justify a regulation, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." And that depends on whether there is a relevantly-similar historical analogue.

In assessing a modern restriction, "this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge." A green truck is not relevantly similar to a green hat if the subject is things you can wear. I would add that an antebellum ban on carrying a Bowie knife concealed is not relevantly similar to a current ban on possession of a rifle or magazine. As Bruen instructs, we look at "how and why the [modern and historical] regulations burden a law-abiding citizen's right to armed self-defense." Under that test, a modern requirement to register all guns would not be analogous to a historical requirement that a militiaman must exhibit his musket at muster.

And from later on:

In his Bruen dissent, Justice Breyer asked, "will the Court's approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?" He quotes Saul Cornell describing "law office history" as "a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion." Cornell is further cited for arguing that Heller was wrongly decided. Indeed, Cornell joined in an amicus curiae brief in Heller claiming that "the private keeping of firearms was manifestly not the right that the framers of the Bill of Rights guaranteed in 1789."

But Professor Cornell engages in what I call "history office law," which means that some historians make claims about legal history to reach preordained conclusions that betray their ignorance of statutory interpretation. A 1795 Massachusetts law made it an offense to "ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth." Cornell would cross out everything after "go armed," as if doing so "offensively" and in a manner that created "fear or terror" to others were not elements of the crime. Such distortions are routine on the part of anti-Second Amendment historians.

So Justice Breyer is correct that some judges and others may write "to produce a preordained conclusion," but his alternative of "interest balancing" through means-ends scrutiny is far worse, because it actually encourages that tendency. ...

12/15/2022

Larry Solum on Speaker's Meaning and Sentence Meaning
Michael Ramsey

At Legal Theory Blog, Larry Solum has an updated entry in his Legal Theory Lexicon for Speaker's Meaning and Sentence Meaning.  From the introduction:

[W]e can ask the question, "How do we figure out the meaning of a legal text?" In some cases, we can tell what the statute [ed.: or a constitution or other legal text] unambiguously means without asking the "how" question.  But other cases are more difficult.  When there is an argument about what a statute means, it may be helpful to turn to theoretical linguistics and the philosophy of language for a theory of communication.

One such theory was developed by the philosopher Paul Grice.  A key component of Grice's theory is the distinction between "speaker's meaning" and "sentence meaning."  Although most lawyers have never heard of Grice, every lawyer has an intuitive grasp of the difference between literal meaning (the bare meaning of the words as combined by syntax and punctuation) and the meaning that a speaker or author intended to convey in context.  This entry in the  Lexicon  provides a basic introduction to Grice's ideas.

And on the basic distinction:

The meaning that a speaker or author intended to convey to a listener or reader is what Grice calls "speaker's meaning."  And Grice developed a very precise and illuminating theory.  Grice uses the word "utterance" to refer to oral communications, and I will use that word as well.  For Grice the speaker's meaning of an utterance is the meaning that the speaker intended to convey to the listener via the listener's grasp of the speaker's communicative intentions.

Wow!  That sounds complicated!  Let's unpack Grice's formulation step by step.  We can start with an example.  It is a Tuesday and the following exchange takes place:

Ben says to Alice: "Pizza day!"

Alice says, "Great!  See you there."

Suppose that in context, when Ben says "Pizza day!" he means to say: "Today is the day that we usually have Pizza at Lampo's at noon, and I don't have a conflict."  But he doesn't have to spell it out, because Alice knows that every Tuesday, Ben and Alice have Pizza at Lampo's every Tuesday at noon unless Ben has a meeting.  When Ben says "Pizza day," Alice relies on her background knowledge and grasps that by saying "Pizza day!" Ben is conveying that he plans to meet her for Pizza.  By replying "Great!  See you there", Alice conveys that she is pleased and that she will be at Lampo's at noon today.

Notice that the content communicated by Ben and Alice is much richer in content than the literal meaning of their utterances.  This brings us to the idea of "sentence meaning."

...

Grice contrasted the speaker's meaning of a particular utterance on a particular occasion with sentence meaning.  The sentence meaning of an utterance is simply the literal meaning of the words, phrases, and sentences.  The literal meaning of "Pizza day" is very sparse.  Pizza is a food consisting of a crust and toppings such tomato sauce and cheese.  Day is a unit of time.  The phrase "pizza day" could mean any number of things.  It might be a day upon which there are pizzas--pizza day at the cafeteria.  Or it might be a day when a particular person, Vibiana, ate a slice of pizza.  Or it could be the day when the refrigerated truck delivers frozen pizzas to the market.  The expression "pizza day" is incomplete when it is considered out of context.  It has meaning, but that meaning is sparse.

And on implications for textualism:

The distinction between speaker's meaning and sentence meaning allows us clarify these theories.  For example, textualism is sometimes criticized on the grounds that textualists are literalists who ignore context; in other words, the critics assume that textualists aim to recover the sentence meaning of the statutory text.  Textualists themselves deny this.  They argue that they are concerned with the meaning of the statutory text but only for the purpose of clarifying the meaning that the statute conveyed.  In other words, they are aiming to recover something that is more like speaker's meaning than it is like sentence meaning. 

12/14/2022

Tyler Lindley: The Writ-of-Erasure Fallacy, Remedial Limits, and the Balance of Powers
Michael Ramsey

Tyler B. Lindley (J.D. Chicago '21; research fellow, Brigham Young University - J. Reuben Clark Law School) has posted The Writ-of-Erasure Fallacy, Remedial Limits, and the Balance of Powers (51 pages) on SSRN.  Here is the abstract:

Judges commit the writ-of-erasure fallacy when they purport to “strike down,” or “nullify,” a law repugnant to the Constitution, and treat it as vetoed, repealed, or erased. Instead, the approach more consistent with the judicial role set forth in the Constitution is to refuse to enforce the pertinent law and perhaps to enjoin the executive from certain enforcement activities. While the first-order consequences of accepting this “remedial limit” are straightforward—mostly linguistic, or in the rare case in which the Court overturns a precedent that held a statute unconstitutional—the second-order effects (how it alters current judicial doctrine) are more nuanced. For example, if courts cannot actively strike down laws, or parts of laws, then current justiciability, remedies, and severability doctrines might need to be reexamined.

Justices Clarence Thomas and Neil Gorsuch have explicitly accepted this remedial limit, as have many federal judges. If federal courts are bound by the remedial limit, then studying its implications is necessary to ensure its consistent application. This Article explains how the remedial limit restricts Article III standing through redressability and how its misapplication can cause courts to err by issuing advisory opinions—or at the very least addressing constitutional questions unnecessarily. First, the remedial limit means that courts cannot hear claims that allege harm stemming from the mere existence of an unconstitutional statute. Second, when courts entertain challenges to the unconstitutionality of statutes that purport to restrict the President’s authority to remove executive officers, they should first determine whether the challenger would be entitled to relief if the removal restriction is unconstitutional before deciding that constitutional question.

I then examine the systematic effects that would result from honoring the remedial limit, including legislative and executive reaction, status quo bias, and the increased role of state governments. Limiting constitutional decisions, particularly the kind of decisions the remedial limit would prevent, will push disputes from federal courts to the legislative and executive branches, as well as to state governments. It will privilege the status quo, which will heighten the importance of legislative and executive judgment. And it will decrease the importance of the federal judiciary, giving more responsibility to the elected representatives to interpret and follow the Constitution.

12/13/2022

David Rivkin et al. on the Independent State Legislature Theory
Michael Ramsey

From the Heritage Foundation, David Rivkin Jr., Andrew Grossman & Richard Raile: History and Consequences: Setting the Record Straight on the Elections Clause and Moore v. Harper.  From the introduction:

In Moore v. Harper the Supreme Court of the United States will consider “[w]hether a State’s judicial branch may nullify the regulations” the state’s legislature enacts to govern federal elections “and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions.” The answer will turn on the meaning of the Constitution’s Elections Clause, which, along with its counterpart Electors Clause, directs “the Legislature” of each state to prescribe the “Manner” of federal elections in that state. The Moore petitioners argue that because these clauses delegate federal lawmaking power directly to state legislatures—not states generally—state courts may not apply state constitutions to override and replace them.

Criticism of this theory has tracked an unfortunate trend of hyperbole employed in recent discussion of election regulation, which is liberally offered but rarely finds support in facts, experience, or common sense. ...

...

On the merits, these apocalyptic claims are no more compelling than all the others proven false by experience. This Legal Memorandum is principally concerned not with the legal arguments for and against the Moore petitioners’ position but with the assertion that their proposed holding would be dangerous to democracy. Central to that claim is the assertion that the Supreme Court would be rejecting “over two hundred years of historical practice” in the state courts, which are presumed to have established and preserved the right to vote as we currently understand it. The Moore respondents have been supported by many amici, and many scholars have written on this subject, but despite their considerable efforts, they have failed to show that a ruling for the Moore petitioners would pose any threat to democracy or voting rights.

Their historical analysis is equally wanting. No one has identified any state court decision invalidating a law enacted under the Elections Clause or Electors Clause for at least 70 years after the constitutional Framing. The first time courts took this step was during the Civil War, and they did so to deny active servicemembers defending the Union the right to vote. Other courts, adopting the Moore petitioners’ theory, affirmed legislative efforts to extend them the right to vote. In short, the only time until recently that this question had any national import, the theory today called “dangerous” achieved the only policy outcome anyone genuinely concerned with voting rights would desire.

From the end of the Civil War until the 21st century, what little evidence there is cuts both ways and, by consequence, against any claim of a “national consensus.” Some state court decisions adhered to the Moore petitioners’ theory, including at least one World War II–era decision that again ratified legislation permitting active servicemembers to vote by mail. A handful of state court decisions applied state constitutions against laws governing federal elections, generally without discussing the federal Constitution, but those decisions established no voting-rights precedent of any import. Virtually all gains in voting rights achieved in the 20th century were achieved by acts of Congress, decisions of the federal courts applying federal law, and acts of the very state legislatures we are supposed to believe cannot be trusted to legislate. The Moore amici and academics supporting their position have identified no legal doctrine essential to “democracy” that would fall away with a ruling for the Moore petitioners.

(Via Legal History Blog.)