Elias Neibart on Originalism and the Appropriations Case
Michael Ramsey

At the Harvard Law Review blog, Elias Neibart:  Methodological Convergence in Community Financial Services. From the introduction:

My colleague, Thomas E. Nielsen, just published a thought-provoking post detailing some of the methodological approaches at play in CFPB v. Community Financial Services Association of America. [Ed.: Noted here.] Nielsen insists that the case exposes “methodological divisions” among the Justices. But that’s not quite right. A closer look reveals their shared focus on a single interpretive question: What was the original meaning of the constitutional text? To be sure, the Justices discussed history, settled practice, and “novelty.” But these considerations were means or gloss — not ends. They were methodological tools — not methodological objectives. And, with respect to the latter, the Justices seemed to agree. Though they discussed different tools, they each accepted the notion that if the original meaning of the text were clear, their inquiry would be over. In this respect, then, Nielsen overlooks the methodological convergence of the Court. Indeed, Community Financial Services suggests that we are all (still) originalists. In fact, we might all be public meaning originalists.

Take Justice Thomas’s majority opinion. Early on, he made the Court’s mission clear: its “concern [was] principally with the meaning of the word ‘appropriation.’” But not just any meaning. Justice Thomas sought to uncover the meaning of “appropriation” “[a]t the time the Constitution was ratified.” To do so, Justice Thomas unpacked his originalist tool belt.

First, he looked at founding–era dictionaries to discern the “ordinary usage” of the word “appropriation” at the time of ratification. Then, he turned to “[p]re-founding” English and colonial history, again with the purpose of understanding how the word was understood at the time of the founding. Justice Thomas’s invocation of post-ratification history shared a similar objective. As he noted, “[t]he practice of the First Congress . . . provides contemporaneous and weighty evidence of the Constitution’s meaning.” Thus, both pre-ratification history and soon-after-ratification tradition helped Justice Thomas discern the meaning of the written word.

That’s why Nielsen’s contention that “Justice Thomas’s analysis may be flawed in the separation-of-powers context” is puzzling. Even if Nielsen is correct that the “concept of the separation of powers lacked a fixed meaning at the time of the Founding,” it’s not clear why that would undermine Justice Thomas’s argument. Justice Thomas was not interpreting what the “separation of powers” meant. Instead, he was discerning the meaning of the word “appropriation.” Indeed, in the latter half of his opinion, he seemed to reject the Respondents’ separation-of-powers argument.  He did so because they offered no “theory” for why the Appropriations Clause “require[d] more” than its plain meaning.

In other words, Justice Thomas was answering an interpretive question. He was not, as Nielsen contends, answering a “separation-of-powers question[].” To be sure, Community Financial Services implicated separation-of-powers concerns. But for Justice Thomas, those concerns were beside the point if they did not bear on constitutional meaning. Nielsen’s criticism of Justice Thomas misses the mark, then, because he frames the case as a dispute over “nebulous separation-of-powers questions.” But it wasn’t. It was a case about the words on the page.

I agree with this description of Thomas' opinion and that it reflects an appropriate textualist/originalist approach (see my thoughts here).

The post continues:

However, with that framing in mind, Nielsen stakes out his preferred method of discerning constitutional meaning.  He contends that “separation-of-powers questions were typically worked out by the political branches over time, resulting in the gradual development of norms with no judicial involvement.”  So, he continues, “post-ratification courses of conduct by the political branches should guide” our “inquir[ies]” into “separation-of-powers disputes.” And Nielsen views Justice Kagan’s concurrence as an adoption of that view. But that might not be right. ...


Saikrishna Prakash & Cass R. Sunstein: Radical Constitutional Change
Michael Ramsey

Saikrishna Prakash (University of Virginia School of Law) & Cass R. Sunstein (Harvard Law School; - Harvard Kennedy School) have posted Radical Constitutional Change (51 pages) on SSRN.  Here is the abstract:

At points in American history, there have been significant, even massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles, and widely accepted approaches, are discarded as erroneous, even illegitimate, in favor of a new set of principles and approaches. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution – its core commitments and underlying narratives – and those transformations change our practices. Our goal here is to provide a conceptual map of radical constitutional change. We seek to describe how and why such change occurs. First, we ask whether theories of interpretation trigger radical change or whether desires for radical change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many are baffled or outraged by constitutional paradigm shifts. Third, we explore the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” and the less-familiar top-down approaches, where legal elites foment and impose a new constitutional regime. We end with a brief discussion of Edmund Burke and conclude that Burkeanism has a complex and ambivalent relationship with radical constitutional change.

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


Genevieve Lakier & Evelyn Douek: Counterman, Stevens, and the Limits of History and Tradition [Updated]
Michael Ramsey

Genevieve Lakier (University of Chicago Law School) & Evelyn Douek (Stanford Law School) have posted The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition (California Law Review, Vol. 113, 2025) (73 pages) on SSRN.  Here is the abstract:

In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories. This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries—one that rests on a richer understanding of the traditions of speech regulation in the United States—and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable. 

I didn't find Counterman persuasive from an originalist perspective (Justices Thomas and Barrett dissented, though more on a doctrinal approach).  Even if one assumes that the original meaning of the First Amendment is strongly protective of political speech (as I do), it's not hard to think that   modern free speech doctrine may well be far afield from the original meaning in a number of more peripheral areas.  This paper isn't really originalist, but it might suggest some ways originalism could rethink some outlying First Amendment doctrines.

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

I do wish this article was longer, with more discussion of the way forward! 73 great pages, but 100 would have been lovely.

I would say, that can be the next article!


Josh Blackman on Justice Thomas on the South Carolina Redistricting Case [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Justice Thomas's Concurrence in Alexander v. SC NAACP - I think Justice Thomas is setting up to find that the Voting Rights Act is unconstitutional, at least with regard to redistricting.  From the introduction:

On Thursday, the Court decided Alexander v. South Carolina Conference of the NAACP. This redistricting case was unique in that it was brought directly under the Constitution, rather than under the Voting Rights Act. The Court split 6-3 along the right-left divide. The majority held that race did not predominate in drawing the congressional district. Justice Alito's majority opinion afforded a presumption of good faith to the legislature. At most, the Court found, the legislature sought to decrease the political power of Democrats. I don't have much to say about these doctrinal points in the majority, or Justice Kagan's dissent.

Instead, I train my focus where it usually goes: Justice Thomas's concurrence. He wrote "separately to address whether our voting-rights precedents are faithful to the Constitution." Thomas explains that the Court "has no power" to decide these redistricting claims under the Constitution. Thomas's opinion received the usual blowback in the press, but as usual, he shifts the Overton window, and now are talking about whether the VRA may be unconstitutional.

The post goes on to make four points about Thomas' concurrence.  Here is the fourth:

Fourth, Justice Thomas raises the issue of whether the federal courts even have the equitable power to draw remedial maps.

The Court's insistence on adjudicating racial gerrymandering and vote dilution claims has also tempted it to ignore constitutional limits on its remedial powers. Ultimately, the only remedy for the constitutional injuries caused by an illegally drawn map is a new map. But, federal courts lack "the power to create remedies previously unknown to equity jurisprudence." Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 332 (1999). And, there is no "indication that the Framers had ever heard of courts" playing any role in resolving electoral districting problems. Rucho, 588 U. S., at 699. The power to redraw a States' electoral districts therefore exceeds "the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act."

I agree.  The Constitution, Article I, Section 4, says:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

There's nothing in there about courts.  Courts can say what a legislature does in regard to the "Times, Places and Manner of holding Elections" is unconstitutional and tell the legislature to try again.  Nothing more.

UPDATE:  At Election Law Blog, Travis Crum has further thoughts on Justice Thomas' concurrence: Justice Thomas Exits the Political Thicket.


Law & Liberty Forum on Law After Chevron
Michael Ramsey

I have linked to some of these essays as they were posted, but here is the complete set of the Law & Liberty forum on law after Chevron (assuming, of course, that we will be after Chevron in about another month).

Constitutional Government After Chevron? - How might the judicial, executive, and legislative landscape change in a potential post-Chevron world?, by Adam White (George Mason)

A World Without Chevron? - In a post-Chevron world, one would expect judges to find it harder to separate their judging from their politics, by Christopher J. Walker (Michigan)

Institutions and Incentives, All the Way Down - Abandoning Chevron may change government incentives, but the results may be minimal, by Michael S. Greve (George Mason)

The Post-Chevron Separation of Powers - Eliminating Chevron may hasten our return to a division of power that helps guarantee liberty, by John O. McGinnis (Northwestern)


Asaf Raz: The Original Meaning of Equity
Michael Ramsey

Asaf Raz (Research Fellow, University of Pennsylvania Carey Law School) has posted The Original Meaning of Equity (102 Wash. U. L. Rev. (forthcoming 2024)) (66 pages) on SSRN.  Here is the abstract:

Equity is seeing a new wave of attention in scholarship and practice. Yet, as this Article argues, our current understanding of equity is divided between two distinct meanings: on one side, the federal courts, guided by the Supreme Court, tend to discuss equity as the precise set of remedies known at a fixed point in the past (static equity). On the other, state courts—most prominently, in Delaware—administer equity to preserve the correct operation of law in unforeseeable situations (substantive equity). Only the latter interpretation complies with the historical and functional idea of equity.

This Article makes the first detailed argument for resolving the problem of static equity, and reinvigorating substantive equity in the federal judiciary and the broader legal community. To do so, this Article takes a highly innovative step, by connecting the federal discussion with an in-depth analysis of the legal scene where equity is employed most systematically (and most faithfully to its historical roots): Delaware law, including its corporate law. As this Article demonstrates, substantive equity is fully compatible with originalism and textualism; the "equity" mentioned in the Constitution and later federal texts is substantive, not static, equity. Federal law has always operated within the sphere of the common law, and this Article offers a new bridge between the two, exposing the members of each community to insights from the other, in a manner that promotes both the original understanding of the legal text, justice, and the rule of law.


Elias Neibart Responds to In Kyu Chung on the Coherence of Originalism
Michael Ramsey

At the Harvard Law Review Blog, Elias Neibart: Originalism Makes Sense: A Response (responding to A Thought Experiment: Does Originalism Make Sense? by In Kyu Chung, at the same site).  From the introduction: 

A colleague of mine, In Kyu Chung, recently wrote a Blog post titled “A Thought Experiment: Does Originalism Make Sense?” He answers that question in the negative. My task here, then, is a modest one. Given the scope of this Blog post, I won’t be broaching several important topics, like whether we should be originalists in the first place or which flavor of originalist theory we should adopt. All I’ll try to do is demonstrate that originalism does make sense.

Consider a variation on Professor Gary Lawson’s thought experiment: You come across a decades-old employee manual at your job. Among the tasks listed is an instruction to mail out a message. Reading the manual today, you recognize that the “document [was] created at a particular moment in space and time” and that it was meant to “speak to an audience at the time of [its] creation and draw [its] meaning from that point.” That is, you recognize its meaning is its “original public meaning.” In turn, you ascertain that what the manual meant is that the message should be mailed through the postal service. 

As Lawson bluntly puts it: “[i]nterpreting the Constitution is no more difficult, and no different in principle” than this kind of everyday interpretation. We mine old documents for meaning all the time. Doing so for the Constitution isn’t a novel proposition; it is an already intuitive exercise.

That is not to say determining the original meaning of the Constitution is simple. Our Constitution is only a “great outline[].” It can often — although not invariably — be generally worded or unclear.  So, when we try to comprehend it, our ultimate understanding may likewise be unclear. But even in those instances, we are all unclear about the same thing — the original meaning of the text. 

Importantly, the mere fact that investigations into original meaning don’t always yield clearcut answers isn’t a knock against originalism. It’s a knock against any theory of interpretation. Chung’s critique, then, casts too wide of a net. As Professor H.L.A Hart recognized, lawmakers are “handicap[ped]” by their “relative ignorance of fact” and by their “relative indeterminacy of aim.”  So, they frame “general rule[s] of conduct.” Any interpretive theory, then, is forced to confront rules framed at a high level of generality. That makes interpreting law hard. But we shouldn’t hold originalism to a higher standard than its interpretive counterparts.

Still, even when we confront a general rule, Hart notes that there are “certain clear examples of what is certainly within its scope.” In other words, sometimes interpreting law leads to murky answers, but other times, it doesn’t. As a theory of interpretation, the same is true for originalism.

Agreed.  Also I agree with the post's later discussion of the "construction zone."  The two issues are related, in my view.  When originalism yields an indeterminate result (which it may often do), the appropriate judicial response is to leave the matter to the political branches.  The judiciary's power to intervene against the political branches rests on the Constitution's commands.  Where those commands cannot be determined, there is no judicial authority to act.  (But at the same time I think, as the post also notes, that originalism's indeterminacy is often overstated.)

(This is from last month but I missed it when it was first posted.  And in general, the Harvard Law Review Blog, a relatively new enterprise at least in its current version, is putting up some excellent content.)


Does Personal Jurisdiction Apply the Same Way to State Law and Federal Law?
Michael Ramsey

Should the test for personal jurisdiction be the same for claims under state law and claims under federal law?  Most courts of appeals have assumed yes, including the Second Circuit.  But Judge Steven Menashi, dissenting from the Second Circuit's denial of rehearing en banc in Waldman v. Palestinian Liberation Organization, says maybe not, citing originalist scholarship and separate opinions by originalist-oriented judges.  From the dissenting opinion:

The Supreme Court has reserved judgment on “whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court” as the Fourteenth Amendment does on a state court. Bristol-Myers Squibb, 582 U.S. at 269. Recent scholarship has shown that the Fifth Amendment does not impose such limits. See Brief for Constitutional Law Scholars Philip C. Bobbitt, Michael C. Dorf, and H. Jefferson Powell as Amici Curiae in Support of Plaintiffs-Appellants, Fuld v. PLO, 82 F.4th 74 (2023) (Nos. 22-76, 22-496), ECF No. 72; see also Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447 (2022); Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020).

Our court has acknowledged that “[r]ecent scholarship suggests that we err in viewing due process as an independent constraint on a court’s exercise of personal jurisdiction.” Gater Assets Ltd. v. AO Moldovagaz, 2 F.4th 42, 66 n.23 (2d Cir. 2021). And other judges have argued that the Due Process Clause of the Fifth Amendment does not limit the exercise of personal jurisdiction by the federal courts. See Lewis v. Mutond, 62 F.4th 587, 598 (D.C. Cir. 2023) (Rao, J., concurring) (“There is little (or no) evidence that courts and commentators in the Founding Era understood the Fifth Amendment’s Due Process Clause to impose a minimum contacts requirement. On the contrary, the widespread assumption was that Congress could extend federal personal jurisdiction by statute.”); Douglass v. Nippon Ysen Kabushiki Kaisha, 46 F.4th 226, 255 (5th Cir. 2022) (en banc) (Elrod, J., dissenting) (“The text, history, and structural implications of the Fifth Amendment Due Process Clause suggest that its original public meaning imposed few (if any) barriers to federal court personal jurisdiction.”); id. at 282 (Higginson, J., dissenting) (“[B]y importing Fourteenth Amendment constraints on personal jurisdiction, born out of federalism concerns, into process due to foreign corporations in global disputes, where those concerns don’t exist, our court makes several mistakes.”); id. at 284 (Oldham, J., dissenting) (“[A]s originally understood, the Fifth Amendment did not impose any limits on the personal jurisdiction of the federal courts. Instead, it was up to Congress to impose such limits by statute.”); see also Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., 91 F.4th 1340, 1352 (9th Cir. 2024) (Bumatay, J., dissenting from the denial of rehearing en banc) (“Justice Story opined that foreign-based defendants were owed no more than service authorized by Congress before being haled into our federal courts.”).

That view is correct, and I would adopt it. ...

That's a lot of originalist firepower behind the idea that the Fifth Amendment due process clause does not limit the scope of Congress' legislative jurisdiction.  But I'm not sure it can be squared with the Court's conclusion that the Fourteenth Amendment due process clause  does limit the scope of the states' legislative jurisdiction, without at minimum addressing the larger question whether Fourteenth Amendment rights parallel the corresponding Bill of Rights rights.  Maybe the enacting generation understood the Fourteenth Amendment to be broader in respect to limits on personal jurisdiction, but that would take some serious effort to demonstrate.

(Via Ed Whelan at Bench Memos.)


Originalism Battle in the Appropriations Case [Updated]
Michael Ramsey

Last Thursday the Supreme Court decided the appropriations case, Consumer Financial Protection Bureau v. Community Financial Services Association, in favor of the government (that is, finding that the funding structure of the CFPB complied with the appropriations clause). At Volokh Conspiracy, Josh Blackman has an extended commentary: CFPB v. CFSAA: Originalists v. Traditionalists.  From the introduction:

It is often said that there is a majority of originalists on the Court, but I think that generalization isn't too helpful. Rather, different members of the Court approach originalism in very different ways. CFPB v. CFSAA teaches us a lot about how the Justices approach constitutional law. (You can download an edited version of the case here.)

The top-line split was 7-2. Only Justices Alito and Gorsuch found that the funding structure of the CFPB was unconstitutional. And on paper, a least, all seven members of the majority joined a single opinion. Justice Thomas's majority opinion was textualist: what is the original public meaning of the word "appropriation" in the Constitution?  Justice Kagan wrote a concurrence joined by Justices Sotomayor, Kavanaugh, and Barrett, that found support for the CFPB's funding structure in post-enactment practice. Justice Jackson wrote a short, solo concurrence that preached judicial restraint, citing an unlikely troika: McCulloch v. MarylandNebbia v. New York, and King v. Burwell.

The post principally discusses the relationship between the majority and the principal concurrence.  I want to note an important contrast between the majority and the dissent, which illustrates two different approaches to originalism.

Justice Thomas pursues a standard textualist/originalist methodology.  He starts with the text -- the appropriations clause:  "The associations’ challenge turns solely on whether the Bureau’s funding mechanism constitutes an 'Appropriatio[n] made by Law.'" He examines founding-era dictionaries, commentary, and pre- and post-ratification practice, concluding that "appropriations were understood as a legislative means of authorizing expenditure from a source of public funds for designated purposes." On this definition, the CFPB funding structure satisfies the original meaning; the question then is whether the appropriations requirement contains additional limits.  Thomas concludes it does not: "Appropriations made by Law" just meant a designation by Congress of "an identifiable source of public funds and purpose," in whatever manner Congress determined.  Thus

The Bureau’s funding statute contains the requisite features of a congressional appropriation. The statute authorizes the Bureau to draw public funds from a particular source—“the combined earnings of the Federal Reserve System,” in an amount not exceeding an inflation-adjusted cap. 12 U. S. C. §§5497(a)(1), (2)(A)–(B). And, it specifies the objects for which the Bureau can use those funds—to “pay the expenses of the Bureau in carrying out its duties and responsibilities.” §5497(c)(1).

Justice Alito, in dissent, responds that the funding structure of the CFPB -- notably that it has a perpetual funding source, subject only to a high cap, from funds collected outside the federal government's general revenue -- substantially diminishes Congress' control over the CFPB's future funding.  That, he continues, undermines the fundamental check of Congress rather than the executive having the power of the purse.  In his view the framers would not have accepted such an end run around the requirement of Congressional control of spending:

[The appointments clause] has a rich history extending back centuries before the founding of our country. Its aim is to ensure that the people’s elected representatives monitor and control the expenditure of public funds and the projects they finance, and it imposes on Congress an important duty that it cannot sign away. Any other course would give the Executive a most dangerous discretion.

The dissent gestures toward a textualist approach by insisting that "appropriations" is a term of art that draws meaning from the historical use of appropriations power to check executive power.  At its core, though, its claim is that the CFPB structure diminishes Congress' power over expenditures to an extent the framers would not have accepted.

Thomas replies that Alito hasn't demonstrated any original meaning of "appropriations" that supports the dissent's view:

[T]he dissent never offers a competing understanding of what the word “Appropriations” means. After winding its way through English, Colonial, and early American history about the struggle for popular control of the purse, the dissent declares that “the Appropriations Clause demands legislative control over the source and disposition of the money used to finance Government operations and projects.” Post, at 17. The dissent never connects its summary of history back to the word "Appropriations."  

He's right about that, and that's the key difference between the two.  Alito doesn't think he needs a specific textual meaning, if he can show that the CFPB funding is inconsistent with the framers' ideas of separation of powers.  Fundamentally, the dissent adopts an original intent methodology (without expressly calling it that), while Thomas follows the text-driven original meaning approach.  It's a classic face-off between two different types of originalism.  (The surprise here is that Justice Gorsuch joins Alito -- usually one expects to see Gorsuch on the textualist side of this divide, sometimes to an extreme.)

Aside:  congratulations t0 my colleague and co-blogger Mike Rappaport, who is cited in Justice Thomas' majority opinion (page 14).  Also, though not cited by Justice Thomas, Christine Kexel Chabot has an excellent forthcoming originalist paper on the issue, which she presented at the originalism works-in-progress conference in February, and which I thought was persuasive.

UPDATE:  At the Harvard Law Review Blog, Thomas E. Nielson has an interesting post on the case: Community Financial Services and the Intramural Debate over Novelty and Tradition.

FURTHER UPDATE:  Professor Chabot has these thoughts: Saving the Consumer Financial Protection Bureau (and the Constitution) from the Courts.  From the introduction: 

Administrative law is almost certain to undergo monumental change during the Supreme Court’s current Term.  On May 16, 2024, the Court issued its first in a series of blockbuster administrative law decisions: Consumer Financial Protection Bureau v. Community Financial Services Ass’n. The Court’s 7-2 decision declaring the Bureau’s funding structure constitutional brings good news for the administrative state — Justice Thomas’s majority opinion validated the ongoing regulatory activities of not just the Bureau but also similarly funded financial regulators such as the Federal Reserve.  The decision also brings good news for originalism. Justice Thomas’s analysis centered on original public meaning and drew a strong majority of Justices, albeit in a case that may have been relatively easy once the Justices had the benefit of additional briefing on historical issues.  His opinion focused on the “narrow question whether” the Bureau’s standing and self-directed “funding mechanism complies with the Appropriations Clause.” Slip op. at 1. At the same time, concurring opinions by Justices Kagan and Jackson and a dissenting opinion by Justice Alito suggested that the Justices might adopt differing analyses of text and history when faced with more challenging issues in the future.


Michael Pardo: Constructing Confrontation
Michael Ramsey

Michael S. Pardo (Georgetown University Law Center) has posted Constructing Confrontation: Between Constitutional and Evidence Theory (University of Michigan Journal of Law Reform, forthcoming) (21 pages) on SSRN.  Here is the abstract:

The United States Supreme Court’s decision in Crawford v. Washington was significant as a matter of both constitutional law and evidence law. From a constitutional perspective, the opinion was significant because of its “original public meaning” approach to interpreting the text of the Sixth Amendment’s Confrontation Clause. From an evidentiary perspective, the opinion was significant in recognizing a doctrinal rule that potentially excludes evidence in criminal trials that would otherwise be admissible under the Federal Rules of Evidence as well as evidence law in the States. This Essay explores Crawford and the subsequent Confrontation Clause cases from these distinct perspectives—illuminated by constitutional theory and evidence theory—and the relationships between them. The interpretation-construction distinction in constitutional theory provides a useful analytical tool for understanding the Crawford line of cases. It also helps to clarify the different ways in which the normative values of evidence theory—which may be used to explain, evaluate, justify, or critique evidence rules more generally—interact with the Court’s decision-making and the confrontation doctrine it has constructed. The Essay concludes by exploring how these distinct perspectives may interact to determine future confrontation doctrine.

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

(I don't recall that anyone has gotten a "Wowza" designation from Legal Theory Blog before.)


Stephen Sachs: Dobbs and the Originalists
Michael Ramsey

Stephen E. Sachs (Harvard Law School) has posted Dobbs and the Originalists (Harvard Journal of Law and Public Policy, forthcoming) (18 pages) on SSRN.  Here is the abstract:

Though often hailed as an originalist triumph, Dobbs v. Jackson Women’s Health Organization has also been condemned as an originalist betrayal. To some, it abandoned originalism’s principles in favor of a Glucksbergesque history-and-tradition test, or even a “living traditionalism”; to others, its use of originalism was itself the betrayal, yoking modern law to an oppressive past.

This essay argues that Dobbs is indeed an originalist opinion: if not distinctively originalist, then originalism-compliant, the sort of opinion an originalist judge could and should have written. Dobbs shows the importance of looking to our original law—to all of it, including lawful doctrines of procedure and practice, and not just to wooden caricatures of original public meaning. As the case was framed, the Court’s focus on history and tradition was the correct approach; on the evidence presented, it reached the correct originalist result. Understanding the Fourteenth Amendment as securing old rights, rather than as letting judges craft new ones, leaves more rather than fewer choices for today’s voters. In any case, it may be the law we’ve made, both in the 1860s and today.

Via Ed Whelan at Bench Memos, who has additional thoughts.


Branton Nestor: Judicial Power and Church Autonomy
Michael Ramsey

Branton Nestor (Gibson Dunn) has posted Judicial Power and Church Autonomy (Notre Dame Law Review, forthcoming) (139 pages) on SSRN.  Here is the abstract:

The church autonomy doctrine provides important protections for religious institutional liberty in our constitutional system. It protects the right of religious institutions to decide matters of church government, faith, and doctrine without improper interference from secular authorities. But while the doctrine has both deep historical roots and broad contemporary acceptance, there remain several challenging questions of exceptional importance that split courts and divide scholars. One question that has provoked significant debate is the relationship between church autonomy and judicial power. Does church autonomy limit the judicial power of civil courts to entertain suit and discovery directed against ecclesiastical matters resolved by religious authorities—or is church autonomy just another run-of-the-mill merits defense? Given the Supreme Court’s commitment to history and tradition, the origins and historical understanding of the doctrine are relevant to drawing the line between judicial power and church autonomy. But that history and its implications remain underdeveloped.

This Article suggests that the church autonomy doctrine, viewed in light of its history and tradition, is best understood to impose broad limits on the power of civil courts to exercise judicial review over matters of church government, faith, and doctrine reserved to ecclesiastical authorities. The church autonomy doctrine historically limited the power of civil courts to exercise jurisdiction over or to inquire into or interfere with such protected ecclesiastical decisions. Such limitations on judicial power over ecclesiastical matters were grounded in a trifecta of free-exercise principles, non-establishment principles, and voluntary-association principles—which preserved an important sphere of church autonomy. There were, to be sure, limits to the doctrine’s substantive protections and procedural safeguards—and the line between church autonomy and judicial power worked itself out over time. But the main lesson is that the church autonomy doctrine generally limited the power of civil courts to entertain suit directed against the protected ecclesiastical decisions of religious institutions—and these limitations both protected religious autonomy from judicial interference, and prevented judicial authorities from establishing religious doctrine. In doing so, the church autonomy doctrine entrenched important safeguards that limited the power of civil courts to trudge into matters of church government, faith, and doctrine—with important lessons for civil procedure and church autonomy today.


William Magnuson: Original Discontent
Michael Ramsey

William J. Magnuson (Texas A&M University School of Law) has posted Original Discontent (78 Vanderbilt Law Review (forthcoming 2025)) (57 pages) on SSRN.  Here is the abstract:

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law.

This Article argues that “original discontent,” that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community.

More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution’s creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.

Just in terms of the abstract, it does not seem to me that the last two sentences follow from the prior discussion.  I would think that most of the original discontent focused on there not being enough restraint on the federal government, not on there being too much.


Edward Lee: The Original Public Meaning of Investment Contract
Michael Ramsey

Edward Lee (Chicago-Kent College of Law - Illinois Institute of Technology) has posted The Original Public Meaning of Investment Contract (UC Davis Law Review, Vol. 58, 2024) (62 pages) on SSRN.  Here is the abstract:

The SEC has failed to provide the public with any guidance on its treatment of artwork NFTs under securities law. Instead, in nonprecedential enforcement actions against two NFT projects in 2023, the SEC classified the NFTs, which involved digital artworks, as unregistered “crypto asset securities”—a term nowhere in the text of the Securities Act of 1933. But this Article explains why the SEC’s overbroad treatment of artwork NFTs raises a serious First Amendment problem. For the SEC to require creators to register their artwork NFTs as securities before they can be offered to the public constitutes an unlawful prior restraint.

Courts should reject the SEC’s approach and adhere to the original public meaning of “investment contract” in the Securities Act. Providing original historical research of newspapers and dictionaries before and contemporaneous with the enactment of the Securities Act in 1933, this Article shows that people used “investment contract” as early as the 1800s to refer to an investment in a contract. Under its original public meaning, an investment contract requires a certain type of quid pro quo: a person’s investment of money, the quid, in exchange for a contractual right of the investor to receive a share in profits generated solely by the offeror’s efforts, the quo. Absent this quid pro quo, there is no investment contract. In 1920, the Minnesota Supreme Court recognized this original public meaning—“as commonly used and understood”—in State v. Gopher Tire, and, then, in 1946, the U.S. Supreme Court adopted the same original public meaning in SEC v. W.J. Howey Co. Indeed, every state and federal decision interpreting “investment contract” that Howey cited and every Supreme Court case applying Howey afterwards involved this quid pro quo. The federal courts have correctly rejected attempts to classify art sales as investment contracts. The reason is straightforward: Even though the purchase of art is an investment, it is not an investment contract. The buyer of art receives no quo, or contractual right to receive a share in the profit generated solely by the offeror’s efforts. Instead, the buyer receives art. The same holds true with the sale of artwork NFTs: the buyer receives artwork NFTs, not any contractual right to profits from the offeror.

I'm struck by the author's use of "original public meaning" in the title of an article about a statute.  It's common for scholars, lawyers and judges to assume or assert that what matters in statutory interpretation is the statute's meaning at the time of enactment.  I don't know that it's often called the "original public meaning," a term that usually appears in constitutional analysis.  But there's no reason why it shouldn't be, and merging the terminology of statutory interpretation and constitutional interpretation reflects the view that those are really just part of the same enterprise -- legal interpretation.  That commonality, for example, is a theme that runs through Scalia and Garner's book, which is of course "Reading Law", not "Reading Constitutional Law" or "Reading Statutory Law"; they use examples from each enterprise interchangeably.  To the extent some versions of constitutional originalism or statutory originalism deny this commonality, it would be interesting to explore why they do.


Dov Fox & Mary Ziegler: The Lost History of 'History and Tradition'
Michael Ramsey

Dov Fox (University of San Diego School of Law) & Mary Ziegler (University of California, Davis - School of Law) have posted The Lost History of 'History and Tradition' (Southern California Law Review, Vol. 98, No. 1 (2024), forthcoming) (44 pages) on SSRN.  Here is the abstract:

The Supreme Court has decided one blockbuster after another by appeal to “history and tradition,” deploying this trope to remake key features of the constitutional landscape: from overturning Roe to abolishing affirmative action, from narrowing the scope of public accommodations to widening the margin for church/state entanglements. The Court says that its history-and-tradition test emerged fully formed in 1997 from an assisted-suicide case that was designed to rein in the drift toward living constitutionalism under the Warren and Burger Courts. This origin story is compelling. The problem is it isn’t true—not where the test came or even what it is. That narrative erases decades of social movement conflict that this Article is the first to excavate. It marshals original archives to reveal that the history-and-tradition test was fashioned from the crucible of earlier struggles: over the value of deep and more recent history, over which communities and what kind of evidence define tradition, and, ultimately, over the role of America’s past in our constitutional present.

The contours of this debate were sharpened across doctrines and eras, inside the courts and beyond them. Recovering this history uncovers a rival vision of the history-and-tradition test—not entrenched but evolving. Taking seriously this dynamic alternative makes three contributions. First, it casts doubt on major decisions about race, abortion, guns, and God, while challenging the fixed-in-time conception of traditionalism these rulings stand on. Second, the more adaptive version of history and tradition sheds light on puzzles including the levels-of-generality problem, the constitutional progressive response to charges of judicial activism, and how a modern conservative legal coalition was forged out of fierce divisions over originalist methods and outcomes. Finally, that lost method bears surprising implications for claims that span the ideological spectrum: from fetal rights and gay marriage to gender-affirming care and conversion therapy. For instance, entrenched history and tradition probably wouldn’t operate to protect widely accepted rights such as interracial marriage and medical refusal. Whereas evolving traditionalism could protect yet-unrecognized rights that it wouldn’t protect right now, looking ahead to a sustained future that made a custom of aid in dying or assisted reproduction.

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


Justice Gorsuch on Civil Forfeiture (Updated with Comment from Evan Bernick)
Michael Ramsey

In Culley v. Marshall, a civil forfeiture case decided earlier in the week, the Supreme Court concluded that the due process clause does not require a preliminary hearing regarding seizure pending an  eventual forfeiture hearing. Justice Gorsuch, joined by Justice Thomas, concurred -- agreeing on the narrow ruling rejecting the preliminary hearing but suggesting  that modern civil forfeiture as a whole may have constitutional problems.  An excerpt:

To my mind, the due process questions surrounding these relatively new civil forfeiture practices are many. Start with the most fundamental one. The Fifth and Fourteenth Amendments guarantee that no government in this country may take “life, liberty, or property, without due process of law.” As originally understood, this promise usually meant that a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof. See, e.g., 1 W. Blackstone, Commentaries on the Laws of England 134–135 (1765) (Blackstone); Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 315 (CC Pa. 1795) (Patterson, J.); Wilkinson v. Leland, 2 Pet. 627, 657 (1829) (Story, J.). So how is it that, in civil forfeiture, the government may confiscate property first and provide process later?

The answer, if there is one, turns on history. If, as a rule, the Due Process Clauses require  governments to conduct a trial before taking property, some exceptions are just as deeply rooted. And for just that reason, these exceptions, too, may be consistent with the original meaning of the Fifth and Fourteenth Amendments. As this Court has put it, “a process of law . . . must be taken to be due process of law” if it enjoys “the sanction of settled usage both in England and in this country.” Hurtado v. California, 110 U. S. 516, 528 (1884); see, e.g., Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 278–280 (1856).

But can contemporary civil forfeiture practices boast that kind of pedigree? In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), this Court noted that English and early American admiralty laws allowed the government to seize a vessel involved in “piratical” or other maritime offenses and later initiate postdeprivation civil forfeiture proceedings. Id., at 684. The Court observed that similar legal rules existed for cases involving “objects used in violation of the customs and revenue laws.” Id., at 682; see also K. Arlyck, The Founders’ Forfeiture, 119 Colum. L. Rev. 1449, 1466 (2019). After emphasizing the existence of those traditions, the Court proceeded to uphold the civil forfeiture of a boat. Calero-Toledo, 416 U. S., at 682, 690. Later and proceeding on much the same basis, the Court approved various aspects of civil forfeiture practice in the context of customs enforcement actions. See United States v. $8,850, 461 U. S. 555, 562, n. 12 (1983); United States v. Von Neumann, 474 U. S. 242, 249, n. 7 (1986).

These historical traditions suggest that postdeprivation civil forfeiture processes in the discrete arenas of admiralty, customs, and revenue law may satisfy the Constitution. But as the Court stressed in Von Neumann, “the general rule” remains that the government cannot “‘seize a person’s property without a prior judicial determination that the seizure is justified.’” Id., at 249, n. 7. And it is far from clear to me whether the postdeprivation practices historically tolerated inside the admiralty, customs, and revenue contexts enjoy “the sanction of settled usage” outside them. Hurtado, 110 U. S., at 528.

UPDATE:  Evan Bernick comments:

Besides the originalist material in the concurrence itself, there's an interesting second-best/first-best originalism thing going on. If Gorsuch and Thomas had joined the dissenters, the result is a majority opinion making it harder for the government to do what G and T think is an unconstitutional thing. They didn't, so the result is that people have less protection against an unconstitutional practice until a majority is prepared to reevaluate forfeiture itself. Basically, they chose first-best originalism over second-best originalism. 


Symposium on the 150th Anniversary of Minor v. Happersett
Michael Ramsey

Washington U. School of Law has this call for papers, which invites a originalist/historical perspectives (among others):

The 150th Anniversary of Minor v. Happersett: The Past and Future of Women’s Rights

 Washington University School of Law, September 27, 2024

 Call for Papers

Abstract Submission Deadline: June 14

The Washington University School of Law and the Washington University Law Review will host a Symposium centered on the 150th anniversary of the historic St. Louis case, Minor v. Happersett, on September 27, 2024. (The 150th anniversary will align with the subsequent publishing of the Law Review’s Symposium edition as Volume 6 of Issue 102 the following spring.)

In 1872, Virginia Minor challenged a St. Louis registrar’s decision to block her from registering to vote. Minor argued the Fourteenth Amendment conferred upon her the right to vote as a “privilege” of American citizenship. In 1875, the Supreme Court unanimously rejected Minor’s assertion, ruling that voting was not a right of national citizenship. Despite the rejection of Minor’s claim, this case remains an important historical moment in both American women’s suffrage and the feminist movement at large.

This Symposium will bring together scholars across many fields of law, including feminist studies, voting rights and election law, and related fields. Submissions having no direct relation to the Minor case are welcome. Papers might address topics including, but not limited to, the following:

  • The history and evolution of women’s rights
  • Past or present voting rights and election law
  • Ballot initiatives post-Dobbs

The Symposium will consist of approximately 3-4 panels over the course of one day, with the panels being created by the Law Review based on relatedness of subject matters across selected pieces. Participants will attend and serve on the panels, and will be asked to read up to a dozen papers (with special attention paid to the papers of others on their panel). The papers circulated for the Symposium are drafts, and the discussion on September 27 will include feedback.

The Symposium will include a dinner the night before. There is no conference fee, and Washington University will host all of the meals on the conference date. Funding will be available to assist with travel expenses—each participant is eligible for up to $1,000 to reimburse hotel and economy-class airfare expenses.

To apply, please submit an abstract of no more than 500 words to  [email protected] by June 14, 2024. Submissions will be vetted by a committee of students from the Law Review, supervised by faculty advisors (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with other papers in a collaborative dialogue.

Participants will also be invited to submit a paper for publication in the Washington University Law Review’s Symposium edition (Issue 6 of Volume 102). The publication cycle for this edition will begin in February 2025, with publication estimated to be in the late summer of 2025. If you are interested in publishing a paper (10,000-15,000 words), please indicate your interest when you submit your abstract.

Participants will be notified of their selection by early July. Drafts for distribution at the Symposium will be due on September 6. We look forward to your submissions and participation. Questions can be directed to the organizing Law Review members and their faculty advisors via the [email protected] address.

(Via Professor Travis Crum at Wash. U., one of the faculty co-advisors for the symposium, who adds: "We’re hoping to cast a wide net and get an eclectic mix of methodological/ideological perspectives.")


John McGinnis on the World After Chevron
Michael Ramsey

At Law & Liberty, John McGinnis: The Post-Chevron Separation of Powers.  From the introduction:

Under our Constitution’s separation of powers, Congress enacts the laws, the Executive executes them, and the Judiciary interprets them. Chevron deference undermined that essential structure because it created a space where the Executive, not the Judiciary, determined meaning of the law. In doing so, it freed Congress from some of its accountability for writing statutes. As applied to substantial questions, it allowed Congress to abdicate its legislative role by delegating to an agency the power to interpret the limits of its own powers. Eliminating Chevron would help return us to the separation of powers that helps guarantee liberty.

But as Adam White recognizes in his excellent essay, overruling or limiting Chevron would provide only a first step in restoring constitutional administration. Here I offer some additional ideas to help keep the branches in their respective lanes. First, as White also recognizes, many administrative statutes are ambiguous. But ambiguity tempts the judiciary to smuggle in its own policy views as the decisive factors of statutory construction. Without  Chevron, the courts, and particularly the Supreme Court, must resolve ambiguity by law—not policy preference—if they are to respect the separation of powers themselves.

Thus, an essential project for the post-Chevron world is for the Court to create a framework of rules for statutory interpretation that apply across subject matters. That enterprise creates a discipline that helps prevent judicial policy frolics. The beginning of this discipline is to recognize that statutes of any complexity (and most administrative statutes are extraordinarily complex) possess a legal meaning. Thus, the Court should not look at a statute’s words in isolation, but in the context of all related statutes—the relevant corpus juris. This corpus juris also includes relevant interpretative rules extant at the time the statute was enacted. The rich legal background of most statutes provides more fixed points to resolve ambiguity.

This suggestion might seem to conflict with some justices’ past statements, where they say they will interpret their statutes according to their “ordinary meaning.” But these declarations are confusing because the term “ordinary meaning” is ambiguous: ordinary as opposed to legal meaning? Or ordinary as opposed to unusual meaning? In his treatise Reading Law, Justice Scalia called for the application of “ordinary legal meaning,” and in practice, most justices follow this method most of the time (albeit not always with the necessary clarity about what they are doing). If lower court judges as well as the Supreme Court justices will no longer be able to punt to administrative agencies when interpretation gets difficult, the Court should reticulate ample available legal resources to disambiguate statutes.


The Original Meaning of the Equal Protection Clause: The Failure to Enforce the Law Based on Political Position
Mike Rappaport

In the last generation or so, tremendous progress has been made answering what I regard as the hardest original meaning question – the original meaning of section one of the 14th Amendment.  One important discovery is that to the extent that the 14th Amendment affords general protection against unequal laws, it comes from the Privileges or Immunities Clause.*  This view now appears to command a majority among originalist scholars. 

What then does the Equal Protection Clause do?  It is a provision designed to focus upon “the protection of the laws” – mainly protection against and remedies for violation of rights.  The core case was the failure of a southern sheriff to enforce the law against the lynching of former slaves.  Thus, the Equal Protection Clause has a special focus on the arbitrary failure to enforce the law and the harms that result from it.  This is important.  The Equal Protection Clause is about impermissible prosecutorial discretion.   

This analysis has particular significance for the failure of many state universities and several cities to enforce the laws against the illegal protests on college campuses.  Depending on the reasons why the laws are not enforced against the protesters, this failure may constitute an Equal Protection Clause violation under the original meaning.

John Harrison’s pathbreaking article sets forth some of the analysis.  He argues that the 14th Amendment enactors prohibit caste legislation and activity based on various grounds.  In addition to race, he adds: “The forbidden subjects thus include politics, religion, and possibly sex.”  Harrison points out that religion was considered to be an irrelevant consideration as to the definition and enforcement of rights.  He also notes that discrimination based on political affiliation and beliefs – such as being a member of the Republican party or opposing slavery or supporting union – was a core concern of the Amendment enactors. 

Thus, if the laws are not being enforced against the protestors because of sympathy for their politics or their religion – or if the law is not being enforced because of dislike for the politics or religion of the people and movements the protestors oppose – then that would violate the Equal Protection Clause.    

It is important to stress this because it might seem that the only problems with the failure to enforce these laws is based on the modern understanding of the First Amendment.  But whatever the correct original meaning is as to the First Amendment, the original meaning of the Equal Protection Clause may prohibit the actions of state universities and cities that are engaged in politically motivated failure to enforce the law.  


*  The equality requirement is imposed through different interpretations.  For those who see Privileges or Immunites as protecting substantive rights, the equality requirement is impose by conferring these substantive rights equally.  Others, who do not see the Privileges or Immunities Clause as conferring substantive right, see the equality requirement simply as an understsanding of the term “abridge.”  

John Kang: First Amendment Fetishism
Michael Ramsey

John M. Kang (University of New Mexico - School of Law) has posted First Amendment Fetishism (Utah Law Review, Vol. 2024, No. 3, 2024) (54 pages) on SSRN.  Here is the abstract:

The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium
• a White skinhead’s cross burning on the front lawn of a Black family’s house
• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain that he would cause Americans across political persuasions
• the commercial trafficking of videos that gleefully depict pit bulls who are fighting each other to death as they were trained by their malevolent owners to do

In protecting such remarkably offensive speech, the Court has failed to take seriously the claims of the community in wanting to regulate speech which is violative of the community’s desire to create a public culture of civility, dignity, and mutual respect.

Going against the grain of scholarship which has celebrated the victories of the individual speaker against his community, this Article argues that the community’s right to regulate speech should be afforded far more deference by courts than the right has previously received. There has been a surfeit of theorization relating to why we need a right of speech. But there has been a dearth of such theorization for why the right of speech should be restricted in order to realize the collective aspirations of the community. The Article aspires to fill that gap. Specifically, the Article draws upon the insights afforded by originalism to fashion a jurisprudence that emphasizes the rights of the community to regulate extremely offensive speech.

Via Larry Solum at Legal Theory Blog, who says "Recommended" but  has some skeptical methodological thoughts.  I too am puzzled by what it means (as the abstract says) to "draw[ ] upon the insights afforded by originalism" as opposed to just doing originalism.

But I also think originalists need to take the project seriously.  Modern free speech doctrine is likely far afield from the original meaning in a number of respects, including in the area Professor Kang identifies.


Law & Liberty Symposium on Jack Balkin's "Memory and Authority"
Michael Ramsey

At Law & Liberty, three perspectives on Jack Balkin's recent book Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press 2024).  From the editors:

The Supreme Court’s recent turn to history and tradition as guides for understanding the public meaning of text has reignited longstanding debates about the uses of history in law. In Memory and Authority, the longtime advocate of “living originalism,” Jack Balkin, argues that the Court’s use of history is self-serving, and amounts to the “mirror image” of living constitutionalism. Three Law & Liberty contributors—law professor Mark Movsesian, political theorist David Schaefer, and historian Aaron N. Coleman—assess the book, as well as the promise and limitations of “law-office history” from different disciplinary backgrounds.

Aaron N. Coleman, “Judicial Supremacy Through Thick and Thin

Mark L. Movsesian, ” Traditionalizing Everything

David Lewis Schaefer, “The Rule of Historicist Judges?


Robert Leider on Presidential Immunity
Michael Ramsey

At Volokh Conspiracy, Robert Leider, guest blogging: Sources of Presidential Immunity.  From the introduction:

On Thursday, the Supreme Court heard arguments in Trump v. United States, which concerned whether presidents have criminal "immunity" for their official acts while in office.  Some arguments seemed perplexing.  Trump's counsel, for example, argued that a prosecutor could charge private acts, but not official acts.  So if a president accepted a bribe to appoint an ambassador, prosecutors could charge the bribe (which he declared a private act) but not the appointment, which he classified as an official act.  Official acts, in his view, could only be the subject of criminal charges if there was first an impeachment and conviction, followed by a prosecution under a criminal statute that explicitly mentions the president.

The Court struggled with these arguments, and many others.  In large part, I think these struggles occurred because "immunity" is not a good way to describe when a president may not be prosecuted.  In this post, I want to lay out what I believe to be the exceptions to when a president may be prosecuted in the same manner as a private citizen.  This post comes with the caveat that this is not my usual academic area, and I do not have a high degree of confidence that what I framed here is complete and correct.  But at the very least, I think it is a better starting place than the all-encompassing term "immunity."

Agreed.  Immunity is the wrong way to think about the issue because the Constitution doesn't provide for immunity.  That doesn't necessarily mean the President loses.

Also, I'm not sure if I've expressed strongly enough my disagreement with Trump's counsel's argument that (as Professor Leiden puts it above) "Official acts ... could only be the subject of criminal charges if there was first an impeachment and conviction..."  So I'll do it here.  This argument is entirely unpersuasive, first because that's not what the Constitution says.  Article I, Section 3 (the only arguably relevant provision) says that "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification" from office, but then adds: "but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law" (emphasis added).  This provision is saying that, even after a conviction and punishment by the Senate, an impeached party can still be prosecuted separately under criminal law.  That is, the impeachment conviction and punishment  is not a double jeopardy bar to the subsequent prosecution (hence the "nevertheless").  To get where Trump's counsel wants to go, the paragraph would need to say "and [not but] the Party convicted shall thereafter be liable..."  The "but ... nevertheless" completely destroys his argument.

And second, as I (and also Trump) argued at the time of Trump's second impeachment, a former President cannot be impeached and convicted.  The Constitution, Article II Section 4, says "The President ... shall be removed from office on Impeachment for, and Conviction of" the listed acts.  Thus impeachment applies only to current Presidents, not former Presidents (who are not "The President").  Article I, Section 3 (quoted above) backs this up by saying that punishment on conviction after impeachment "shall not extend further than to removal from Office, and [not "or"] disqualification."  If that's right, though, Trump's argument in the present case makes no sense, because it would shield a former President from prosecution for wrongdoing discovered after the President left office.


Further Thoughts on Presidential Immunity and Structural Reasoning
Michael Ramsey

I entirely agree with Mike Rappaport's assessment of presidential immunity, especially with his skepticism about immunity arguments that rest on claims about constitutional structure.  Here's what I wrote about structural reasoning in foreign affairs law (quite a while ago) (footnotes omitted):

[H]istorical textualism is “clause-bound” in that it embodies a search for the specific meaning of particular clauses. The document is made up of clauses (or phrases, or however one wishes to put it), and the question of the document's historical meaning is a question of its component clauses' historical meaning. The historical meaning of the whole is not more than the historical meaning of the sum of its clauses. In that sense, historical textualism should regard the phrase “clause-bound” as no pejorative. Binding oneself to the historical meaning of the document's words and phrases is precisely what anchors the inquiry, making it an investigation of what was actually written as opposed to speculation about what should have been written.

Being “clause-bound” thus does not mean eschewing “structural” arguments,15 but it does mean treating them carefully. It is one thing to use what Professor Charles Black‟s foundational work called “the constitution in all its parts” to illuminate the meaning of a particular part. It is quite another to find meaning in “the general themes of the entire constitutional document” (as John Ely put it) without relating them back to particular words and phrases. Both approaches may be called “structural”, but for a textualist there should be a manifest distinction. “General themes” not reflected in actual text are difficult to objectively identify and apply to particular disputes; one may be skeptical (at least without powerful and specific supporting evidence) that arguments based upon them reflect what the Constitution actually meant, as opposed to what one thinks it ought to have said. 

(Missouri v. Holland and Historical Textualism, 73 Missouri L. Rev. 969, 972-74 (2008))

The arguments for presidential immunity seem to me to rest mainly on this unsound version of structural reasoning -- that the structure of the office of the President implies immunity for official acts taken by the holder of that office.

Thus I tend to think that the Court, before reaching the immunity question, might look at the logically prior question of whether the relevant statutes apply to the President (see Jack Goldsmith's post here), including perhaps through application of the presidential avoidance canon, if there is one.  I'm not sure if there's a way for the Court to get there in the Trump case, however.


Michael Velchik: The Presidential Avoidance Canon
Michael Ramsey

Michael Velchik (Legislative Director & Senior Counsel, U.S. Senate; formerly White House Counsel’s Office, 2019 to 2021) has posted The Presidential Avoidance Canon (Nebraska Law Review, Vol. 102, No. 1, 2023) (66 pages) on SSRN.  Here is the abstract:

This Article identifies an overlooked yet potent canon of statutory construction: the presidential avoidance canon. Under this rule, courts will not interpret a generally applicable statute to apply to the President, his close advisers, or the Executive Office of the President (EOP), absent a clear statement. Even where a statute explicitly applies to the EOP, courts may narrowly construe the law to exempt those EOP components whose sole function is to advise and assist the President.

Applying this rule, courts have narrowly construed the Administrative Procedure Act, the Freedom of Information Act, the Privacy Act, the Federal Records Act, the Presidential Records Act, the Civil Rights Act of 1964, anti-nepotism laws, and inspector general reporting requirements. Unlike other canons of construction, which subtly influence interpretation, this canon has driven courts to conclusions starkly at odds with the plain texts of these statutes.

Despite its significant impact, the presidential avoidance canon has received little scholarly attention. This Article fills the gap in the literature by tracing the history, logic, and potential applications of this canon of construction. It identifies the development of this canon in Supreme Court precedents from the Jefferson, Johnson, and Nixon administrations. It documents how courts and the Department of Justice have applied the doctrine to landmark legislation. It then extrapolates the logic of this canon to new contexts, including the Federal Tort Claims Act, the Whistleblower Protection Act, the Inspector General Act, the Computer Fraud and Abuse Act, and the Hatch Act. It concludes by discussing the canon’s scope, justification, and utility.

Timely!  See my discussion with Josh Blackman here and here.

As to the Trump prosecution, I would think that the statutory question of whether the relevant laws apply to the President might be appropriately decided before the constitutional question of whether the President has immunity.


The Original Meaning Regarding Presidential Immunity: A Preliminary View
Mike Rappaport

            I have not really studied this issue in depth – and so my view should be understood as tentative and preliminary – but here goes.

            My bottom line is some form of constitutional presidential immunity is certainly a plausible view as a matter of precedent.  How could it not be given the (unenumerated) presidential immunities that the Supreme Court has recognized?  But as a matter of the original meaning, I do not think there is such an immunity. 

            The Constitution enumerates certain immunities, such as the speech and debate immunity.  This cuts strongly against unenumerated presidential immunities.  Presidential immunities could theoretically be found under the Vesting Clause but monarchial immunities were pretty clearly rejected by the constitutional enactors.  If governors at the time of the Constitution generally enjoyed immunity, that would be evidence for the immunity but no one has pointed to such immunity.  And of course the Impeachment Punishment Clause provides:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This does not say that one is subject to criminal punishment only if one has been impeached and convicted. 

            It is conceivable – although certainly not inevitable – that Congress does not have authority to pass laws regulating certain core presidential powers such as the veto power, the pardon power, and the recommendation power.  But even if true, that would not provide a general presidential immunity for official acts.

            A separate question is whether the criminal statutes Congress has enacted apply to the President.  Under existing precedents regarding statutory interpretation, there is certainly a plausible case that these statutes do not apply absent a clear statement, even though those statutory interpretation precedents seem problematic from an originalist perspective because they involve substantive canons.  Even from a more originalist interpretive approach, there are serious questions whether many criminal statutes apply to presidents, given how rarely they were applied to presidents in the past.  But statutory interpretation is a separate question from constitutional immunity.

            Some people would defend presidential immunities on “structural grounds.”  The argument is that the overall structure or system of the Constitution requires that the President be protected from prosecutions for official acts he committed when President.  But such naked structural arguments – divorced from any constitutional text – are extremely problematic.  They are too easy to make up.  Does it seem like a good idea to the justices?  If so, the structure must require it.  That is not the way to determine what the Framers enacted. 

            Structure does have a place in originalist constitutional interpretation.  When the text is ambiguous or otherwise unclear, structure is a permissible way to resolve that ambiguity.  But it is entirely different to use naked structural arguments that are divorced from the text.  In the former case, we are determining what the text written by the Framers meant.  In the latter case, we do not have any good reason to believe that the Framers enacted this requirement.

            Some might argue that if a power cannot be exercised without an accompanying immunity, then that immunity is fairly inferred.  But even if one accepts that argument, presidential power can be exercised without this immunity.  It simply means that the power can be exercised less effectively. 

            But even if one is troubled by the structural argument, the argument against constitutional presidential immunity does have a structural response.  While the Constitution does not provide an immunity, it allows the Congress to enact a law under its Necessary and Proper authority to provide limited or full protection to former Presidents from prosecutions.  Thus, Congress can address this structural issue.

            Of course, it seems unlikely that the existing Congress will pass such a law.  But if such prosecutions become more frequent, Congress might pass a law in the future protecting former Presidents.  The law could be written to apply in the future – say six years from its enactment – so that no one can predict the political party of the President the law will protect.  While this might still seem unrealistic, similar political changes have happened in the past.  Most Democrats (and some Republicans) used to believe the Independent Counsel was great when it was applied to Republican Presidents.  When it came to be applied to a Democratic President, Democrats suddenly came to understand why it was problematic.  Only then was the Independent Counsel statute allowed to die, something that would have been unthinkable a decade earlier.

            It is important to be clear about why we might need a statute protecting Presidents now when that has never been required in the past.  There has always been an important constitutional norm that prohibited the existing President from prosecuting former Presidents and persons running against him.  That norm operated to make a statute protecting former Presidents unnecessary.  But now one political party at both the state and federal level has chosen to ignore and destroy that norm in not one, not two, but a series of prosecutions, most of which are extremely weak.*  Even if one of the prosecutions is not weak, it would not have been brought in the past.

            It is important to say this because we are witnessing very little criticism for the destruction of an essential norm.  Many people are reluctant to criticize these prosecutions because they fear being accused of supporting Trump or because they strongly dislike Trump.  But Trump’s actions are not the main issue.  Yes, Trump has done some bad things and has seriously violated norms.  But these prosecutions would not have been brought under the old norm.  These prosecutions will lead to retaliatory prosecutions by the Republicans in the future, and then we will be off to the races.  With the evisceration of the norm, bad consequences will inevitably result, consequences that we associate not with one of the world’s oldest democracies but with banana republics.


* This might seem like a politically partisan point but it is not made in a spirit of partisanship.  Both political parties have made many mistakes.   But the mistake that the Democrats are making has far more serious long term consequences than other mistakes made by both Republicans and Democrats.    

Adam White on Life after Chevron
Michael Ramsey

At Law & Liberty, Adam White: Constitutional Government After Chevron?  From the introduction:

By mid-summer, Chevron deference as we know it may be history. The Supreme Court could reform or even eliminate its forty-year-old doctrine that federal courts should generally defer to an agency’s reasonable interpretation of an ambiguous statute.

How would the end of Chevron deference affect our constitutional institutions? It’s far too soon to know—and not just because the Supreme Court has yet to decide Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Even if the Court eventually reforms the Chevron framework or erases it outright, the decision’s full impact will not be seen clearly for months or years. Such was the case with Chevron itself: the Court’s decision was debated endlessly from the start, but its full effects would not be fully understood until decades later.

Still, it is not too soon to start thinking. Reforming Chevron along the lines suggested by some of the justices’ questions at oral argument would change the work of the courts. First, and most obviously, judges will need to work harder to interpret statutory text. This harder interpretive work, in turn, will place still greater weight on textualism itself—and on Congress’s own responsibility for crafting the texts in the first place. The post-Chevron era may also cause judges to think differently about the character of the administration. And if so, then the executive and legislative branches will have new reasons to change their own work, too.

This essay attempts to think through some possible second- and third-order effects of one of the most long-awaited decisions in modern administrative law. And even if these specific speculations are rendered moot by the Court’s eventual decision in Loper Bright  and Relentless, the exercise can still help us think through the months and years ahead.


Reva Siegel: 'History and Tradition' as the Right’s Living Constitution
Michael Ramsey

Reva Siegel (Yale Law School) has posted The 'Levels of Generality' Game, or 'History and Tradition' as the Right’s Living Constitution (Harvard Journal of Law and Public Policy, Vol. 47, 2024) (26 pages) on SSRN.  Here is the abstract:

Why does the Roberts Court appeal to history and tradition as reason to change the law? We see this logic in Dobbs v. Jackson Women’s Health Organization (reversing the abortion right) and in New York State Rifle & Pistol Ass’n v. Bruen (striking down gun-licensing restrictions under the Second Amendment). This Essay shows that what explains the turn to history in these cases is not an identifiable method that directs interpreters how to decide contested constitutional questions but instead a mode of justification. Both Dobbs and Bruen claim that fidelity to the nation’s history and tradition in interpreting the Constitution will constrain judicial discretion as traditional forms of doctrine or openly value-based judgment cannot.

For some years now, I have analyzed the value-laden claims on the past that Americans make as they are arguing about the Constitution as “constitutional memory” claims. As this Essay demonstrates, my account of constitutional memory poses a direct challenge to originalism’s judicial-constraint thesis. What appear to be positive, descriptive claims about the past in constitutional argument are often normative claims about the Constitution’s meaning. I analyze this dynamic in the Justices’ decades-long debate over levels of generality: a judge who employs the most specific level of generality in describing past practice can conceal rather than constrain value-based judgment. And I illustrate this logic at work in United States v. Rahimi, a Second Amendment case before the Supreme Court this Term, in which the Fifth Circuit applied Bruen’s history and tradition analysis to hold that 18 U.S.C. § 922(g)(8), a federal law that disarms persons subject to domestic-violence restraining orders, is unconstitutional under the Second Amendment.

The Essay argues that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.


More from Josh Blackman on the Presidential Avoidance Canon
Michael Ramsey

At Volokh Conspriacy, Josh Blackman: The Clear Statement Rule and the Major Question Doctrine As Substantive Separation of Powers Canons (expanding on his initial post here and my comment here).  From the introduction:

Both the clear statement rule, and the major question doctrine, are substantive canons to avoid potential violations of the separation of powers. Justice Gorsuch explained in West Virginia v. EPA that the major question doctrine is best viewed as an avoidance canon in service of the non-delegation doctrine. That is, the Court will require a clear statement that Congress intended to empower an agency to resolve a "major question" in order to avoid deciding if such a broad delegation would even be constitutional. Likewise, with the Presidential Avoidance Canon, as I described it during the Trump years, the Court will require a clear statement that Congress intended to limit the President's power in order to avoid deciding if such a limitation on the President's power would violate Article II.

The clear statement rule and the major question doctrine both function as substantive separation of powers canons in order to avoid deciding if federal actions are unconstitutional.

I think this is probably correct as an assessment of how Justice Gorsuch, and perhaps other members of the Court, see the matter.  But it still leaves the question of whether the constitutional avoidance canon is consistent with originalism (about which I have some doubt).  Scalia & Garner endorse what they call the "constitutional doubt canon" (pp. 247-255 of Reading Law) but do not offer much of an originalist defense.


Jud Campbell: Four Views of the Nature of the Union
Michael Ramsey

Jud Campbell (Stanford Law School) has posted Four Views of the Nature of the Union (47 Harvard Journal of Law and Public Policy 13 (2024)) (25 pages) on SSRN.  Here is the abstract:

This Essay summarizes four Founding-Era views about the nature of the Union and the key interpretive implications that followed from those views. In doing so, it emphasizes the importance of social-contract theory and engages a recent scholarly debate over the influence of the law of nations on Founding-Era constitutional interpretation. Without taking a position about which view of the Union was correct, the Essay aims to illuminate the range of interpretive possibilities, including ones informed more by social-contractarian premises than by the law of nations.

And from the introduction (footnotes omitted):

One of the most enjoyable yet challenging aspects of studying American constitutional history is that the earlier generations often did not share our vision of constitutional law. For us, the written Constitution grounds constitutional argument. We treat the text as the source of our fundamental law, and then as Justice Scalia would say, the rest is “a matter of interpretation.”

In taking this approach, we have mostly rejected other ways of grounding constitutional law—including through invocations of social-contract theory, natural rights, and natural law. These are things that might come up in a philosophy class, but they have little relevance to legal doctrine. Not coincidentally, we also have mostly moved beyond the fights over sovereignty and the “nature of the Union” that dominated the first century of American constitutional debate.

But Americans from the Founding through Reconstruction did not share this perspective. For them, the text mattered a great deal. But there were deeper foundations—and more fundamental sources of authority—than the written document. Americans thus often debated how the text of the Constitution fit within a broader matrix of fundamental law. This was especially true of federalism disputes, which frequently turned on social-contractarian assumptions about the locus of sovereignty within the federal system. So in order to think historically, we need to imagine the nature of constitutional law—and the grounding of constitutional law—in these older ways.


The First Criminal Trial of an ex-POTUS
Andrew Hyman

The first criminal trial of an ex-President is ongoing in Manhattan.  When the district attorney for Manhattan issued the indictment in April of 2023, he explained that Trump was being indicted “for falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.”  Yet all of the 34 counts explicitly rely upon action Trump allegedly took after the election, at which time American voters could not have been influenced much by the allegedly incorrect business records, and Trump had less motive to influence voters.

The Constitution explicitly gives state legislatures some power to regulate presidential elections: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”  But that power wanes after the electors are chosen, and is therefore subject to greater preemption by federal statutes, as well as by federal interpretations of those statutes.

All of the 34 counts rely upon a New York statute (“175.10”) which says this:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.  Falsifying business records in the first degree is a class E felony.

Without a conviction on first degree falsification, the statute on second degree falsification would only have been a misdemeanor, and also would have been barred under a statute of limitations.

The indictment did not explicitly say what the “another crime” was, even though intent to violate “another crime” is a key element in every one of the 34 counts.  Each of the 34 counts does allege “intent to defraud” but it doesn’t seem like there was much of a motive given that, by 2017, the election had already happened.  In any event, the indictment left the “another crime” unspecified.

As you might expect, Trump filed a motion to dismiss the indictment, in September of 2023.  After briefing by both parties, the judge in the case declined to dismiss, in a 30-page decision and order dated February 15, 2024.  This decision said (at p. 11) the state had offered “four theories” about what the words “another crime” meant in the indictment, and the judge deemed the first three of those theories to be valid even though the indictment did not specify any of them: (1) intent to violate federal election law; (2) intent to violate state election law; and/or (3) intent to violate state tax law. 

The judge emphasized that the state statute quoted above only requires “intent” regardless of whether the “another crime” is actually carried out.  On the other hand, the judge did not address the difference between knowledge and intent (“knowingly” versus “intentionally”), and the state legislature very likely did not intend to put anyone in jail for decades who merely knew about commission of a crime without intending it.  For example, if a tax law was technically violated without costing the state any money, a defendant may well have known about the violation without intending it.  Likewise, the judge did not address whether the absence of commission of a crime can be evidence of whether the crime was intended; it surely can, if it’s a tax law, an election law, or any other law.

As to election law, it’s unlikely Trump violated it by paying hush money.  Former vice-presidential candidate John Edwards paid hush money, but a federal court said it was legal.  One might ponder whether the motive for the hush money was to protect Trump’s family or instead to win the election, but Trump would have faced immense negative legal consequences if he had paid the hush money using campaign funds.  The money that Trump allegedly misreported or misclassified in 2017 was money paid by him, for which he was indicted, but candidates are not limited in the amounts they can spend on their own campaigns (or on their own personal expenses).

I’m not a New York lawyer, but it looks to me like a weak indictment that probably should have been dismissed, and that will probably strengthen  Trump’s related case for presidential immunity. Incidentally, the right to a grand jury is one of the few provisions in the Bill of Rights that has not yet been applied against the states; as I wrote on this blog in 2018, it very likely should be.

A few years ago, in 2017, Yale Law Professor Stephen L. Carter wrote the following:

One might argue, plausibly, that political candidates are entitled to a stronger presumption of innocence because they are more likely than the rest of us to be the target of spurious charges. Fair enough.
Earlier this month, on April 25, the U.S. House Judiciary Committee issued an interim report asserting that the current charges against Trump in Manhattan are spurious.  They do seem weak.


Josh Blackman on the Oral Argument in Trump v. United States
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Presidential Bribery and the Clear Statement Rule in Trump v. United States: Revisiting Issues From The First Trump Impeachment and the Mueller Investigation.  From the introduction:

[On 4/25] the Supreme Court heard oral argument in Trump v. United States, the presidential immunity case. Much of the argument concerned issues left unresolved during the Trump presidency. 

First, during the Mueller investigation, it was alleged that Trump violated the federal obstruction of justice statute. I, and others, countered that a criminal statute should only apply to the President if there is a "clear statement" to that effect. In other words, a general criminal statute should not be read to apply to the President. 

Second, it is true that in 1995, the Office of Legal Counsel suggested in an opinion that the federal bribery statute, 18 U.S.C. § 201, would apply to the President, even though there was no "clear statement." But bribery is somewhat unique in that the Constitution expressly enumerates bribery as a ground of impeachment. It is difficult to then argue that the President has some sort of constitutional authority to engage in impeachable conduct. ...

I am particularly interested in the supposed clear statement rule, with my new-found interest in the originalist aspects of substantive canons.  On the clear statement rule, Professor Blackman comments:

The most interest in the clear statement rule came from Justice Kavanaugh. I think of all members of the Court, Justice Kavanaugh has perhaps the most insights on what it means to prosecute a President. Justice Kavanaugh has seen this issue from both sides. Earlier in his career, he worked under Independent Counsel Ken Starr. And later in his career, he served as a White House attorney under President George W. Bush. I remember when there were calls to charge members of the Bush administration with war crimes and worse. Kavanaugh stated, "this case has huge implications for the presidency, for the future of the presidency, for the future of the country." He is exactly right.

Kavanaugh asked John Sauer, Trump's counsel, if "a clear statement in the statute covering the president" is required "if the president's official acts are going to be criminalized." Kavanaugh later observed that "a clear statement in the statute referencing the president" was needed "so that the president is on notice and can conduct himself or herself accordingly." Another rationale for the clear statement rule, Kavanaugh explained, is "to make sure Congress has thought about" what it would mean to subject the President to criminal liability. 

That formulation appears to regard the (supposed) clear statement requirement as a substantive canon -- that is, the Court will construe a statute lacking a clear statement narrowly not to apply to the President, even if absent the clear statement rule the best reading of the statute's text would apply it to the President.  I think that is correct, and it makes the presidential nonapplicability canon (if we can call it that) parallel a view of the major questions doctrine as a substantive canon. 


Samuel Joyce: Testing the Major Questions Doctrine
Michael Ramsey

Samuel Joyce (Stanford JD '23) has posted Testing the Major Questions Doctrine (43 Stan. Env't L.J. 45 (2024)) (45 pages) on SSRN.  Here is the abstract:

The Supreme Court’s recent decision in West Virginia v. EPA announced the arrival of the major questions doctrine, a substantive canon of construction that bars agencies from resolving questions of “vast economic and political significance” without clear statutory authorization. While the contours of the doctrine are still murky, early predictions suggest it will function to substantially curtail the scope of the administrative state. Despite these significant implications, the Court has not been clear about the doctrine’s origins or purpose. Some defenses of the doctrine have sought to justify it as an intuition about how Congress writes statutes, a kind of linguistic canon; others, including Justice Gorsuch, attempt to root the doctrine in the Constitution, grounding it in the nondelegation doctrine.

The distinction matters because constitutionally inspired doctrines have more bite than linguistic canons. If the major questions doctrine is truly just another linguistic canon, it may fit within the Court’s ordinary process of statutory interpretation and yield to other canons in any case; as a constitutional doctrine, by contrast, it allows the Court to deviate from the text and adopt narrower readings of otherwise unambiguous statutes. This Note considers and tests the major questions doctrine’s link to the nondelegation doctrine, arguing that the major questions doctrine does not consistently serve to advance nondelegation.

The argument proceeds in three steps. First, this Note contends that the major questions doctrine must apply to the President, addressing a recent circuit split on that issue. Second, this Note explains why the major questions doctrine may function to bar the elimination of national monuments, taking as a case study President Trump’s elimination of the Bears Ears National Monument in Utah. Notably, given the history of the statute and the textual authorization to create monuments, the major questions doctrine is far more likely to bar the elimination of a national monument than the creation of one. Finally, this Note turns to nondelegation, which is more likely to be used to challenge the creation of monuments. The nondelegation doctrine does not examine “majorness” or demand clear statutory authorization; as a result, its application bears little resemblance to the major questions inquiry, likely functioning to bar the creation as opposed to the elimination of monuments.

This case study shows that the major questions doctrine and nondelegation doctrine may, as applied to the same statute, produce opposing outcomes. If the major questions doctrine functions to advance the nondelegation doctrine, this disparity should give its defenders pause. Whatever the doctrine’s merits as a linguistic canon, a doctrine so untethered from the constitutional values that ostensibly grant it its legitimacy has little merit as a substantive canon.


Andrew Hyman on Equal Protection [Video]
Michael Ramsey

Here is co-blogger Andrew Hyman speaking on equal protection at the Southern University Law Center (along with Professor Jason Thrower):



Jack Goldsmith on Presidential Immunity
Michael Ramsey

In anticipation of Thursday's oral argument, Jack Goldsmith (Harvard) has a long post at Lawfare: The Core Issues in Trump v. United States: One Road Map.  From the introduction:

This essay provides a road map of the core legal issues in Trump v. United States as I see them. It is just a road map; I do not opine on how the Court should resolve most of the issues in the case. I am pretty sure that the Court will reject former President Trump’s immunity claim. But how the Court crafts its immunity analysis, and what collateral issues it addresses along the way, are enormously important to the impact of the Court’s decision on future presidencies. This impact will, I think, be a central issue at oral argument and a central consideration in the drafting of the opinion. I address the impact issue at the end of this lengthy piece, after first laying out how I think the various legal doctrines in the case fit together.

And from later on:

To understand what is at stake in the case, one needs to unpack three issues and understand their relationship to one another.

First, do the four criminal statutes Trump allegedly violated apply to the president? The § 1512 crimes apply to “whoever” does the bad acts; and §§ 241 and 371 apply to “persons” who commit the offenses. The applicability issue is whether these generally worded statutes, properly construed, govern official presidential action. A second-order applicability question is which official presidential actions do they apply to—all of them?; some subset, and if so, which one?; acts in which presidential power is not unduly burdened? (Another applicability issue, not examined here, is the question raised in Fischer v. United States on whether and how § 1512 applies to Jan. 6 events.)

Second, if the statutes govern some presidential conduct, are they constitutional, and if so, to what extent? This constitutionality issue is whether Congress has the authority to regulate the presidential actions in question, which reduces in this context to whether certain presidential actions implicate exclusive presidential power that Congress cannot regulate.

Third, if the statutes apply to the president and are constitutional, does Trump have immunity from prosecution for their violation? This immunity issue is the one formally before the Court. A second-order immunity question concerns which presidential actions should receive immunity. For example, assuming some immunity attaches, does it attach to all official acts, or a subset? And how would one determine which acts are official and which are private?

(Via Ed Whelan at Bench Memos.)


Lawrence Solum: Original Public Meaning
Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) has posted Original Public Meaning (Michigan State Law Review, Vol. 2023, No. 807, 2023) (42 pages) on SSRN.  Here is the abstract:

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) that constitute the communicative content of the constitutional text. The second step situates original public meaning in the context of normative constitutional theory, explaining its role in both Public Meaning Originalism and nonoriginalist constitutional theories. The third and final step investigates the foundations of original public meaning in the philosophy of language and theoretical linguistics, via an exploration of the distinctions between (a) speaker’s meaning and sentence meaning, (b) semantics and pragmatics, (c) sense and reference, and (d) conceptual meaning versus prototypical meaning.

Each of the three steps contributes to the articulation of a conception of original public meaning that aims at conceptual clarity, precision, and theoretical depth. The original public meaning of the constitutional text is the communicative content (the set of concepts and propositions) that was conveyed to the public at the time each provision was drafted, proposed, and ratified. Both semantics (the meaning of words and phrases) and pragmatics (meaning conveyed by context) play essential roles in the complex multistage process by which constitutional communication occurs. For public meaning originalists, the original public meaning of the text ought to bind constitutional actors, including judges, legislators, and executive officials. Sometimes, the recovery of original public meaning is relatively easy—the absence of linguistic drift, common sense, and the immediate context make the meaning of the constitutional text readily accessible to contemporary readers. But sometimes, the original public meaning of the constitutional text is difficult to discern, requiring both a deep reading of the constitutional record and careful application of the methods of historical linguistics.

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