David Upham on Establishment and Incorporation
Michael Ramsey

At Law & Liberty, David Upham (Univ. of Dallas, Politics): The Court Should Tear Down Everson, Not the Maryland Cross (commenting on the Maryland cross case, Maryland-National Capital Park and Planning Commission v. American Humanist Association).  From the introduction:

The challenge to the 94-year-old cross (erected in 1925) rests entirely on a 72-year-old precedent, established in Everson v. Board of Education (1947).  In Everson, the Court held that the Constitution’s Fourteenth Amendment makes both Religion Clauses fully applicable against the states, and therefore, that the federal courts have authority to forbid any state action they deem an establishment of religion.

In the Maryland cross case, the litigants and judges have seemingly all accepted this precedent as settled and fully applicable law.  Despite the conservative leanings of several Justices, the participants in the litigation have thus far shown little interest in the text or original understanding of the Amendment.  Indeed, neither the text nor the very name of the “Fourteenth Amendment” appears anywhere in the Respondents’ 100-page main brief or in the lengthy opinions authored by the Fourth Circuit. Further, with the exception of two amici, no one has addressed whether Everson might be a bad precedent, inconsistent with the original understanding of the Fourteenth Amendment.

Moreover, no one, it seems, has raised the objection that it would be unjust to retroactively apply Everson so as to destroy the work of those who, two decades earlier, could not have foreseen the incorporation of the Establishment Clause.

In this essay, I’d like to establish two facts that seem to me highly relevant to a just resolution of this case.  First, when the Maryland cross was erected, the virtually unanimous legal consensus was that the federal Constitution did not incorporate the Establishment Clause against the states, and that, consequently, the respective states retained the exclusive authority to regulate themselves in matters of religious nonestablishment.  Second, this non-incorporation consensus was plainly harmonious with the original understanding of the Fourteenth Amendment.

Consequently, the citizens who established the cross could not have reasonably foreseen Everson and thus had good reason to rely on Maryland’s permission as final.  A reasonable person would not have predicted that the federal judiciary would later order the destruction of the cross as violative of the Constitution.

Some of the evidence supporting these claims is well known by scholars.  But some of it has not been published before. ...


John Dossett on Originalism and Indian Law
Michael Ramsey

Following up on this post on originalism and Indian law, here is some important recent scholarship in the field by John Dossett (Lewis & Clark): 

Indian Country and the Territory Clause: Washington's Promise at the Framing (68 Am. U. L. Rev. 205 (2018)); abstract:

This article explores the Territory Clause, Article IV, Section 3 as a source of power for federal laws in “Indian country,” as defined at 18 U.S.C §1151. In contrast to plenary power doctrine, the Territory Clause offers a textual source of authority to regulate matters unrelated to commerce, such as criminal jurisdiction in Indian country. Intended to constitutionalize the Northwest Ordinance of 1787, the Territory Clause provides a principled rather than plenary basis for Congressional initiatives in Indian policy; a constitutional source of authority tempered by the duty of “utmost good faith.” This renewed understanding of the Territory Clause makes certain the source of federal authority in Indian country, and provides a stronger interpretive lens for matters of tribal sovereignty, land rights, taxation, and criminal justice.


Tribal Nations and Congress’s Power to Define Offences against the Law of Nations (Montana Law Review, forthcoming); abstract: 

This Article advances the Offences Clause as an additional, and important, source of federal authority in Indian affairs, particularly for the Indian Child Welfare Act (ICWA). The Constitution grants to Congress the power to define and punish "offences against the law of nations," in Art. I, Sec. 8, Cl. 10. Although the Offences Clause does not specifically reference Indian Nations, there is considerable evidence that it was intended for use in regulating the relationships with tribal nations as well as foreign governments. Much like the Treaty Clause and the Territory Clause, the Framers wrote the Offences Clause broadly to include foreign powers and tribal nations within the same scope of federal authority.

The Offenses Clause provides enumerated authority for the regulation of important matters between sovereigns, such as the citizenship and custody of children. In this way, it addresses claims that ICWA exceeds Congressional authority, such as those brought by the State of Texas in current litigation. Instead, the ICWA is an exercise of the well-established authority of Congress to pass laws under its enumerated powers and involves little more than an application of the Supremacy Clause's provision that federal law "shall be the supreme Law of the Land," enforceable in every state.


Eric Segall Asks: Are Court Decisions Law?
Michael Ramsey

At Dorf on Law, Eric Segall: Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law.  From the introduction:

I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth.

The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law.

Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repeated his argument made many times in his fine scholarship (and in our Twitter conversations) that the meaning of the Constitution never changes even when judicial applications of constitutional text change.

And in response:

At the debate, I argued that it is quite likely that many of the nations' universities do not have rigid racial quotas only because law schools treat Supreme Court decisions as binding law. That point also responds to Chris' argument that the Constitution means something separate from what the Court says it means. That is emphatically not true for the thousands of political actors and millions of Americans who treat Supreme Court decisions as law they must obey (and much, much more often than not, as is the case with affirmative action, that law is emphatically not the Founders' law).

My tentative view is that court decisions (as to constitutions and statutes) are authoritative statements of what the law is, although they are not law in themselves.  But I'm not sure there are practical implications of taking a different view for most people.  I do think that Congress and the President are entitled to hold different views from the courts of what the law is, so long as they do not act contrary to court orders.  (So for example the President can veto an Act on the ground that it is unconstitutional even if the Supreme Court has said that a law of that type is not unconstitutional).  But I'm not clear on why the distinction matters in other contexts.


Calvin TerBeek on Ed Meese on Incorporation
Michael Ramsey

An interesting find by Calvin TerBeek at House Divided:  The Untold Story of How Conservatives Embraced the Bill of Rights and Incorporation. Here is the introduction:

The new conservative majority of the Supreme Court has begun the second phase of its constitutional rights project of providing increased protection to Second Amendment rights vis-a-vis state gun control laws. Lost in this, however, is the story of how conservatives stopped worrying about the Court applying (“incorporating”) the Bill of Rights against the states. Not only is this story underemphasized, when recounted it has been rendered inaccurately. Contrary to existing accounts by legal scholars and historians, it was neither academic lawyers nor the vanguard of libertarian legal interest attorneys who cleared the path for constitutional conservatives to embrace incorporation.

In short, here’s what happened: instead of continuing to complain that the Warren Court had erred in applying the full force of the Fourteenth Amendment and First Amendment’s religion clauses to the states—an important ideational aspect of judicial and movement conservatism in the 1950 through the 1970s—farsighted entrepreneurial political actors in the 1980s saw that arguments for “disincorporation” hindered movement conservatives’ larger constitutional politics project.

I won't spoil the story, except to say it turns on a missing line in Attorney General Meese's famous 1985 speech to the American Bar Association.

Plus this appearance by the University of San Diego:

In 2009—in the wake of Heller and presumably looking forward to McDonald (2010)—a number of legal scholars, including prominent originalists, held a conference at a hotbed of originalist legal thought: University of San Diego. The conference was meant to flesh out the interaction of the Bill of Rights and the Fourteenth Amendment—that is, incorporation. Indeed, one prominent originalist, apparently unaware that the nature of the relationship between constitutional conservatism and incorporation had long since been determined by political actors in the Reagan DOJ, wrote on the topic at length. Even today, originalists still cite to the incorrect text of Meese’s speech.

My personal memory, for what it's worth, is that when I began to get interested in originalism some years after Meese's speech the "disincorporation" project was not of interest to at least the younger generation of originalist scholars.


Parchment Barriers and the Determinateness of Constitutional Text
Mike Rappaport

Recently, Jonathan Gienapp, a Stanford historian, has published what is likely to be a widely read book on constitutional interpretation. Second Creation: Fixing the Constitution’s Meaning in the Founding Era argues that there was no agreement on how to interpret the Constitution at the time of the Constitution’s enactment and that standard interpretive positions only emerged after a decade of controversy. Gienapp’s book has already been the subject of a symposium at Balkinization.

I am now reading Gienapp’s book and have found much to disagree with. I plan to write more about this after I finish it. John McGinnis and I have already written a response to claims from Jack Balkin that Gienapp’s evidence shows that our interpretive position—Original Methods Originalism—is defective.

Now, Ilan Wurman, a young law professor at Arizona State, has written a very critical review of the book, which sounds many of the right themes. One claim that Gienapp makes is that the Framers’ distrust of parchment barriers showed that they did not believe that the language of the Constitution settled its meaning. Rather, the Framers relied upon the structure of the Constitution. This is a typical example of the type of argument Gienapp makes and why I believe the book is problematic.

One problem with the argument is identified by Wurman, who writes:

True, the framers were concerned about mere “parchment barriers.” They believed a mere declaration of rights or limits on power was insufficient to enforce such rights and limits because words could too easily be ignored by those in power. . . . What really matter[ed to the Framers according to Gienapp] is the Constitution’s structure, the checks and balances and separation of powers that ensure, as Madison writes, that “ambition [is] made to counteract ambition.” But what creates this structure—this separation of powers? The words of the Constitution. If words were so imprecise and meaningless, and the Constitution were not confined to its words, then the separation of powers itself would be meaningless.

But there is another problem with Gienapp’s argument. One can believe that parchment barriers—the words of the Constitution—are not sufficient to protect against unconstitutional actions while also believing that the Constitution had a determinate meaning at the time of its enactment. In fact, this is a very common understanding and is one popular justification for judicial review—without judicial review, Congress and the states would ignore the Constitution’s meaning. Consequently, one might believe that it is important to establish a constitutional structure in order to ensure that the Constitution’s determinate meaning be followed. This is the conventional understanding of what underlay the Founders’ remarks about parchment barriers and I believe that understanding is correct.


Allen Mendenhall on a New Book on Justice Scalia
Michael Ramsey

At Law & Liberty, Allen Mendenhall (Faulkner): A (Mostly) Misbegotten Attempt to Take Scalia’s Measure (reviewing The Conservative Revolution of Antonin Scalia (David A. Schultz & Howard Schweber, eds., Lexington 2018))).  From the discussion:

No consensus view emerges from these wide-ranging essays on everything from Scalia’s contributions to administrative law to his Senate confirmation hearings. Nor are the essays  universally admiring. On the contrary, most of them are critical. “Was Antonin Scalia a sissy when it came to administrative law?” Schultz asks—unprofessionally, in my view. Mary Welek Atwell of Radford University scrutinizes Scalia’s opinions in cases about race and gender, highlighting his apparent “comfort” with the “patriarchal, hierarchical” elements of the Roman Catholic Church, and grandly declaring that Scalia “sympathized more with those who were trying to hold on to their privilege by excluding others than with those who sought to be included.”

Is that so? And is it so that Scalia, in the words of contributor Henry L. Chambers, Jr., of the University of Richmond School of Law, “read statutory text relatively simply”? What a relatively simple claim! Scalia’s Reading Law (2012), coauthored with Bryan Garner, outlines principles or canons for interpreting statutes and legal instruments; it has become a landmark in the field, having been cited in hundreds of cases and over a thousand law review articles in the seven years since its release. While it aims to simplify hermeneutics, providing sound methodological guidance to interpreters of legal texts, it is by no measure simple.


Most of the critiques in this book, in contrast to those just cited, are responsibly researched and tonally reserved. No reasonable person expects scholarly assessments of a controversial jurist’s legacy to be an exercise in hagiography. On the other hand, such assessments should avoid coming off like intemperate outbursts.

The 18 contributors come from a range of disciplines. Only three are law professors; two are professors of criminal justice; two are doctoral candidates; and one clerks for a federal judge. Equally diverse are the essays’ methodological approaches. The most distinctive belongs to Timothy R. Johnson, Ryan C. Black, and Ryan J. Owens, who in a coauthored chapter attempt to examine empirically—with graphs and figures—Scalia’s influence on the behavior of his Court colleagues during oral argument. Whether they succeed is a determination better left to experts in quantitative research.

And here is the book description from Amazon:

Many hoped or feared that Antonin Scalia’s appointment to the Supreme Court in 1986 would guarantee a conservative counter-revolution that would reverse the liberal jurisprudence of the Supreme Court under Chief Justice Earl Warren and which was continued to some extent under the Burger Court though the influence of Justice William Brennan. In addition, President Reagan described Scalia’s nomination as part of a project to remake the role of the Court, promote an interpretive approach of originalism, and shift authority and discretion to the States. Yet by the time of his death in 2016 it was unclear to what extent Scalia had effected the legal, institutional, or political revolutions that had been anticipated. While the Court did move to the right doctrinally, and reversed or modified many Vinson-Warren-Burger precedents, Scalia’s influence on constitutional jurisprudence turned out to be far less than it could have been, and his ability to persuade other Justices to adopt his legal views—both substantively and methodologically—was less than many mainstream media accounts recognize. Scalia’s institutional and political legacies are similarly complex: he was neither as transformative a figure as some of his allies might have hoped nor so unimportant as some of his detractors might have wished. The fact that his death and the controversy surrounding his replacement is so intense speaks to the fragile legacy that Scalia really has had on the Supreme Court after 30 years. This book will assess Scalia’s legacy in an edited volume that assembles leading legal and political science scholars who will evaluate his impact across a range of jurisprudential, institutional, and political issues.

But, $102.40 a copy!  And I thought I got a bad deal on my book pricing.

Why Supreme Court Judging Is Not Necessarily Partisan
Mike Rappaport

I recently came upon this review of Richard Brookhiser’s new biography of Chief Justice John Marshall by Yale Professor John Fabian Witt. The review criticizes Brookhiser’s take on Marshall as a justice who furthered the law and originalism rather than politics. Instead, Witt believes that Marshall’s judicial career was defined by the goal of advancing his party’s political agenda. For Witt, Brookhiser is engaged in a type of myth-making that is harmful to our understanding of the law and of what we can expect from courts.

I will explore this point in a second, but it is worth point out that Witt is writing this review with an eye towards present day politics. He concludes the review:

Marshall’s ability to carry out the Federalist agenda for a generation after the party’s decisive defeat at the polls stands as a warning for what we may expect to see in our own time. Accounts of his life that downplay his politics make it harder to grasp this key point. . . . The truth is that law is not independent of party. It never has been. Law is not reducible to party, either. But now more than ever we need a realistic account of how our courts work, one that can recognize the law’s long-standing and durable interconnections with the world of the partisan operative.

Clearly, Witt’s point is that the Republicans may keep a majority on the Supreme Court that will decide cases based on what that majority claim is original meaning or law, even though the country may have rejected President Trump and the congressional Republicans at the polls. We should not, Witt implies, accept such apolitical claims. Those Republican Justices will be promoting their party’s political agenda.

After a generation of being lectured to by historians about how originalist law professors are presentist, but historians are not, such presentism seems ironic coming from a historian.

Now, back to Witt’s claim that Marshall—and all justices—are involved in party politics. If what is meant is simply that the justices are people and have different ideas about what the law is, and those ideas are often in accord with the political parties to which they belong, then this is clearly true. Marshall’s ideas on the law are not surprising given that he was a moderate Federalist, just as Scalia’s ideas about the law are not surprising given that he was a conservative Republican.

But I think Witt means more than this. He seems to be suggesting that ideas on law cannot be unrelated to party, in part because the original meaning cannot be determined. And here I would beg to differ. One can attempt to determine the original meaning, even if there was not a consensus at the time of its enactment. In that situation, one follows the interpretation that has the greater support for it. And if one is genuinely seeking the original meaning, then that is not party politics, but law.

Imagine for a minute that there were two political parties—one devoted to originalism and one not. (While Republicans seem more devoted to originalism, I am not suggesting that this contrast is one between Republicans and Democrats.) In that situation, the originalist party would be a political party, but it would also—in my view, at least—represent law and not politics. By dismissing originalists as simply about politics, one ignores an essential distinction—that the nonoriginalist considers his own values, while the originalist considers the values placed into the Constitution.

How does Marshall stack up in terms of originalism? While some scholars have emphasized strategic parts of Marshall’s opinions (such as the order of issues considered in Marbury), I have generally found his opinions to be almost always defensible in terms of originalism.

This is not to say that Marshall always reached what I would regard as the original meaning. But I do not find any of his opinions to be clear departures from the original meaning, as I do many opinions from various other courts, such as the New Deal, the Warren, and the Burger Courts. And some of his opinions are masterpieces of originalist reasoning, such as portions of Marbury.

For these reasons, I regard him as the Great Chief Justice.

Larry Solum's Legal Theory Lexicon on the Construction Zone
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory lexicon has this new entry: The Construction Zone.  From the introduction:

The idea of a "construction zone" is based on the interpretation-construction distinction.  The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities:

Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the "New Originalism" and especially Keith Whittington and Randy Barnett.


Construction zones arise because the meaning of some legal texts underdetermines the legal effect that is given by courts and other officials to the text.  For example, the communicative content of the phrase "freedom of speech" underdetermines the legal content of free-speech doctrine.  The linguistic meaning of the phrase "freedom of speech" does not contain doctrines such as the distinction between content-based and content-neutral restrictions on speech.  These legal content of these implementation rules is underdetermined by the communicative content of the First Amendment.

And from further on:

Identification of the construction zone is only the start of the analysis of what to do when a legal text is underdeterminate with respect to some case or issue.  The next step is to determine what methods of construction are appropriate for the determination of legal effect.  This step involves theories of construction: such theories provides methods for choosing implementation rules.

There are many possibilities.  For example, we might devise implementation rules by identifying the objective purpose or function of a statute or constitutional provision.  Or we might use a default rule: for example, in constitutional cases, courts could defer to democratic officials when the constitutional text is underdeterminate.  Precedent or historical practice might play a role in the construction zone.

The law is full of doctrinal techniques for resolving cases in the construction zone.  For example, application of a vague or open-textured statute or constitutional provision might be guided by a balancing test.  Or the courts might precisify a vague provisions by devising a bright-line rule that implements that purpose of the provision.  Another possibility is to grant discretion to trial court judges to resolve cases in the construction zone.


The Constitution and Wealth Taxes
Michael Ramsey

At Dorf on Law, Neil Buchanan: What Kind of Constitutional Mess Might a Wealth Tax Create?, and also at Justia: Can We Tax Wealth? Yes, and Even if Not, Still Yes.  From the latter:

Direct and Indirect Taxes

Where are the strictly legal issues hiding? The Constitution distinguishes between two types of taxes, direct and indirect. What is the difference? As I noted above, no one seems to be sure. True, the occasional conservative blogger might claim to have the key to understanding the difference, but even then we see a concession that, “[a]dmittedly, the line between direct and indirect taxes was not always crystalline.” That understatement deserves some kind of award.

The Constitution’s text is unhelpful, because section 9 of Article I says only that “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” So we know that a capitation—that is, a per-person tax—is one kind of direct tax, but we honestly have only the most limited clues as to what else would count as a direct tax. Clearly, the framers thought that there must be others, but they did not provide guidance.


What About Apportionment?


The key here is that the Court cannot invalidate a wealth tax. It can only say that a wealth tax is a direct tax, not an indirect tax, and thus that it must be apportioned. But again, so what? What is apportionment, and why does it matter?

Apportionment means that the tax must be levied in proportion to each state’s representation in the House of Representative. Because House seats are set roughly in proportion to population, this means that a direct tax must be levied such that the ratio of the money collected from each state to the total revenue collected by the tax is equal to the ratio of each state’s population to the total population of the country. Maryland’s population, for example, is currently just under two percent of the total population, so an apportioned tax would have to collect that percentage of its revenue from Marylanders... [and as he goes on to explain, this would create various perverse outcomes.]

Via the link above, here's a 2015 essay by Rob Natelson that addresses the direct/indirect question: The Constitution’s financial terms, part III: Direct and indirect taxes.  Here's his summary (after extensive originalist analysis):

Admittedly, the line between direct and indirect taxes was not always crystalline. One might argue that a particular Massachusetts “excise” levied on cider mill production was really a direct tax rather than an excise. As in Hylton v. United States, one might quarrel over whether an annually-imposed levy on consumer-owned carriages was direct or indirect. Nevertheless, contemporaneous tax statutes, public discussion, newspapers, treatises, and governmental publications render rather clear the fundamental difference between the categories: A tax was direct if laid on one’s status or on one’s living or livelihood — that is, if it was levied on heads, on the ordinary effects of daily life, or on production. Taxes on wealth, property, businesses, and income were all direct. Taxes were indirect (and w[ere] therefore duties) if imposed on the consumption or on certain specific transactions, such as importing, exporting, and issuing legal documents.

I expect we will be hearing more on these issues in the near future.


Jeremy Telman: Five Meta-Interpretive IssuesMichael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted All That Is Liquidated Melts into Air: Five Meta-Interpretive Issues (Barry Law Review, forthcoming) (26 pages) on SSRN.  Here is the abstract: 

The promise of originalism is that it helps us to fix constitutional meaning and constrain constitutional decision-makers. There are significant constitutional questions that originalism can help resolve, at least to the extent that constitutional decision-makers buy in to originalism. However, even assuming that originalism is normatively desirable, there are certain issues that are fundamental to constitutional decision-making but that originalism cannot help us resolve. The Framers were hopelessly divided on them, and they may not be susceptible to Madisonian “liquidation.” That is, at least some of these issues still generate live controversies even though some of them seem to have been resolved by adjudication, legislation or long-standing practice.

This paper identifies five such issues, which seem the most fundamental. These issues are “meta-interpretive” because they are subjects of interpretation while also providing the framework for resolving other interpretive issues. That is, they establish the parameters within which constitutional decision-makers can resolve particular interpretive issues. Those who follow debates about and within originalist theory are familiar with the notion that original meaning sometimes runs out. At that point, even originalists concede, constitutional decision-makers resort to modalities of constitutional interpretation other than originalism. My unique claim here is that original meaning runs out very early in the process and that originalist interpretation therefore takes place within a non-originalist meta-interpretive frame.


Steven Calabresi & Gary Lawson: Why Robert Mueller’s Appointment As Special Counsel Was Unlawful
Michael Ramsey

Steven G. Calabresi (Northwestern University - Pritzker School of Law) and Gary Lawson (Boston University School of Law) have posted Why Robert Mueller’s Appointment As Special Counsel Was Unlawful (88 pages) on SSRN.  Here is the abstract:

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct what we think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and lower courts for the appointment of Special Counsels over the past two decades do not – and even obviously do not – authorize the creation and appointment of Special Counsels at the level of United States Attorneys. They authorize the creation and appointment of Special Counsels to “assist” United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels, but they do not remotely authorize the creation of the kind of Special Counsels represented by Robert Mueller who replace rather than assist United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the independent counsel’s appointment.

Second, even if one chooses to overlook the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute – and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.

Third, the Special Counsel is, in all events, a superior rather than inferior officer and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is obviously true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official is an “inferior” officer. Such a reading leads to the ludicrous result that there is only one non-inferior officer in every federal department, which is a good reason not to read them that way.

There are surely times when Special Counsels are appropriate. Both statutes and the Constitution provide ample means for such appointments through the use of existing United States Attorneys with unimpeachable credentials and reputations for standing above politics. Any number of United States Attorneys have performed these functions with distinction. Statutes and the Constitution do not, however, permit the Attorney General to appoint a private citizen as a substitute United States Attorney under the title “Special Counsel.” That is what happened on May 17, 2017. That appointment was unlawful, as are all of the legal actions that have flowed from it.

From a constitutional originalist/textualist perspective, the second point seems especially troubling.



Congress' Power to Deploy Troops?
Michael Ramsey

The Senate has passed a resolution calling for the continued deployment of troops in Afghanistan and Syria, despite the President's announced plans for withdrawal.  Sadly (from an academic perspective) the resolution is nonbinding, so it creates no actual constitutional controversy.  But suppose Congress did direct continued deployment of troops in Afghanistan and Syria by statute (over the President's veto).  Does Congress have this power?

My answer is no.  The question is similar to one debated by me and Professor Saikrishna Prakash, hosted by the Texas Law Review.  (His paper is here; my response is here).  Professor Prakash's view was  that Congress has essentially plenary power over military matters through a combination of the declare war power and the power to "make Rules for the Government and Regulation of the land and naval Forces."  My argument in response was that Congress does not have power over purely tactical decisions, such whether to attach a fortified enemy or whether to defend a threatened position.

Although it's a closer question, I think my conclusion also extends to the decision to deploy troops.  Congress does not appear to have an enumerated power to make such a decision.  The declare war power relates only to the status of relations between the U.S. and its adversary.  If Congress declares war (or authorizes the President to declare war), the President may use military force against the enemy; if it does not, then the President may not use force (unless the U.S. is attacked).  But once Congress has declared war or otherwise authorized the use of force, the declare war power does not encompass management of the war effort.

The government-and-regulation power, in my view, is not a general authorization to Congress to direct military operations, but rather is a specific grant of power to establish standing rules on the conduct of military personnel.  (This argument is developed further in my Texas Law Review essay).  A substantial element of this argument is that under the Articles of Confederation, Congress had both the power of  "making rules for the government and regulation of the said land and naval forces" and the power of "directing their operations." (Art. IX, para. 4).  Thus, these were understood as two distinct powers.  And the former power, but not the latter, was carried over to Congress by the Constitution.  The power of "directing their operations," under the new Constitution, presumably went to the President as Commander-in-Chief.

As a result, Congress may declare that the U.S. is in a state of war with ISIS in Syria and with the Taliban in Afghanistan (leaving aside the issue that both ISIS and the Taliban are nonstate actors, and the fact that Congress has not actually made such a declaration in either case, but only an authorization to the President to use force as appropriate).  But Congress does not have power to direct the President to make any particular deployment of troops as a result of the state of war.


Eric Segall on Baude & Sachs on Originalism as Our Law
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism off the Ground.  From the beginning:

Professors Will Baude and Stephen Sachs are at it again. They have continued their quest to convince the world that originalism is, indeed, our law. Their new article is "Grounding Originalism."

In previous articles and essays, Baude and Sachs have set forth a positivist account of constitutional law, arguing that our law is the Founders' law until properly amended or changed. They have also claimed that our Founders' law allows judges to change old applications of legal principles if new facts require such changes, as long as the constitutional provision at issue was intended, designed or originally meant to allow judges to do just that. In other words, cases such as Brown v. Board of Education and Obergefell v. Hodges, which most scholars categorize as non-originalist, may properly be classified as originalist decisions if, and only if, the 14th Amendment's original meaning embraced evolving applications by judges (an issue that the authors surprisingly have so far ducked).

Baude and Sachs have also argued that lawyers, law professors and judges often criticize or praise Supreme Court decisions based on originalist criteria and make originalist arguments to the Court, thereby demonstrating that our legal vocabulary is originalist, which shows that originalism is our law. In their newest piece, they point to scholarly and lawyerly debates over the Emoluments Clause and what that word originally meant to show the large role that originalism plays in constitutional interpretation. Why argue so ferociously over originalist evidence if originalism isn't our law (well maybe to hide the value judgments that will ultimately decide the case)?

"Grounding Originalism" also contains much discussion of Hartian philosophy and rule of recognition issues, which some critics have used to critique their work. But the authors concede that "the more enduring dispute between us and many of our critics is far more banal: it’s a simple empirical disagreement. Maybe our beliefs seem odd, not because there’s anything wrong with our legal theory, but simply because other readers don’t see how our existing legal practice grounds a form of originalism." This is where I come in.  ...

And from later on:

 The real question is how much of a role originalism actually plays in Supreme Court decisions. ... [M]y recent book spends considerable ink showing not much. The authors don't wrestle with those of us who have documented how little text or history actually matters to the Court. In "Grounding Originalism," Baude and Sachs respond to Professor David Strauss' compelling descriptive account of common law constitutionalism not by wrestling with the long list of cases he says support his theory but by suggesting Strauss admits his account is odd because it is “not [one] we usually associate with a written constitution, or indeed with codified law of any kind.” Yet, Strauss maintains he is correct, so I'm not sure what this response adds. Many of us think the Court's behavior across a spectrum of issues and practices is "odd," but we describe the Court we have, not the one we want.

(Thanks to Mark Pulliam for the pointer).

RELATED:  D.A. Jeremy Telman (Valparaiso University Law School) has posted this review of Eric Segall's book Originalism as Faith on SSRN: Originalism as Fable (Hofstra Law Review, forthcoming).  Here is the abstract: 

Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism in all its variants and his mastery of constitutional doctrine.

This Essay offers two ways in which Segall’s exemplary work might be supplemented. First, it teases out the various meanings that “faith” can have in this context, ranging from quasi-religious belief to myth to ideology to political credo. Second, it offers two alternative narratives as supplements to Segall’s legal realist critique. Originalists insist that their approach has “bite,” which they contend distinguishes it from unprincipled living constitutionalism. In the alternative, Jack Balkin reconciles originalism and living constitutionalism. Legal decision-makers, following his “living originalism,” may be legal realists, but their construction of the Constitution must be constrained by their duties of good faith and fidelity to the Constitution.

Originalism with bite and living originalism provide theoretical responses to Segall’s challenges, but their positions must also accord with the reality of constitutional adjudication. Segall challenges originalists to reconcile their faith in unelected judges with a Constitution designed to provide governmental accountability through democratic processes. If they cannot do so, originalism is not a true account of our judicial processes but a fable designed to disguise a new version of legislation by the judiciary as the neutral application of legal rules.


Alexander Pearl: Originalism and Indians
Michael Ramsey

Recently published, in the Tulane Law Review, M. Alexander Pearl (Texas Tech): Originalism and Indians (93 Tul. L. Rev. 269 (2018)).  Here is the abstract:

Indian tribes, in the context of U.S. constitutional theory, do not fit.  They are an anomaly in American governmental structure.  Tribal governments exist today within the constitutional framework of the United States only by virtue of acrobatic displays of rhetorical legal reasoning and mythologized interpretations of history.  Originalist theory can provide a clear exit from the inconsistencies and inaccuracies underlying the foundation of federal Indian law.

Typically, scholars embracing an originalist position are thought of as conservative.  A conservative position is typically associated with opposition to tribal sovereignty.  In contrast to those traditional views, I argue that an originalist view of the Constitution can produce a very different constitutional understanding of Indian tribes that supports a robust construction of tribal sovereignty.  Today, a number of originalists occupy seats on the United States Supreme Court, but their respective records on Indian law decisions are distinct.  To advance an originalist constitutional theory supportive of meaningful tribal sovereignty, this Article compares the jurisprudence of Justice Thomas and Justice Gorsuch with respect to Indian law.  These two Justices, supposedly cut from the same originalist cloth, provide a perfect opportunity to critically examine the complexities of originalism as applied to Indian tribes.

(Via Larry Solum at Legal Theory Blog).


The President's Power to Suspend and Terminate Treaties
Michael Ramsey

The Trump administration's announcement that it is suspending the Intermediate-Range Nuclear Forces Treaty with Russia, and that it will terminate the treaty in six months unless Russia moves toward full compliance, has produced little reaction in legal commentary.  (I couldn't find anything on it on reliably anti-Trump national security law blogs like Lawfare or Just Security.)  But does the President have constitutional power to suspend or terminate treaties?  Apparently it's widely assumed that he does, perhaps as a result of historical and modern practice, as explained by Curtis Bradley in this article: Treaty Termination and Historical Gloss.  That isn't a sufficient answer from an originalist perspective, however.

My originalist answer is: yes, the President does have this power, so long as the suspension or termination is in accord with the terms of the treaty or with the international law of treaties.  As argued here, suspension and termination are part of the President's executive power in foreign affairs -- that is, foreign affairs powers that were viewed in the eighteenth century as part of the traditional executive power and which were not assigned elsewhere by the Constitution.  Like a number of other foreign affairs powers (such as establishing foreign policy, directing and removing ambassadors, and entering into executive agreements, it is not mentioned directly in the Constitution, and thus remains part of the "executive Power" vested in the President by Article II, Section 1.

The issue came up early in the post-ratification period, in 1793, when President Washington considered whether to suspend the U.S. treaties with France after the French Revolution.  In the cabinet, Treasury Secretary Hamilton argued for suspension and Secretary of State Jefferson argued against it -- but both assumed the President had the constitutional power.  Jefferson (who like Hamilton endorsed the idea of executive foreign affairs power) argued against suspension on the merits, but not on constitutional grounds.

The counterarguments are that suspension/termination power should lie with Congress or the Senate.  As to the Senate, it's true of course that entering into treaties requires approval of two thirds of the Senate.  But that does not suggest that it should take two thirds of the Senate to withdrawn.  It takes a majority of the Senate to approve an appointment to an executive office, we don't conclude that (as a constitutional requirement) removal of an executive officer needs majority Senate approval.  The Constitution is not founded on an idea of reciprocal powers (that is, that the same entity that approves something must consent to undoing it).

As to Congress, I agree that Congress can terminate treaties in areas within its enumerated powers.  In exercising its enumerated powers, Congress may find that an existing treaty is a barrier to achieving the outcome Congress prefers.  Terminating the treaty is thus necessary and proper for carrying into execution the enumerated power.  Indeed, in doing so Congress is not limited to terminating treaties in accordance with their terms.  But Congress can do so only in pursuit of an enumerated power, not generally.  Treaty termination is not a textually identified independent power of Congress (the way, for example, declaring war is).  Thus it does not displace the President's treaty termination power; rather, Congress and the President have concurrent powers.

To be clear, it's an entirely different matter if the President seeks to terminate a treaty in violation of the treaty's express or implied terms.  Treaties are the supreme law of the land, by Article VI, and the President is constitutionally bound to faithfully execute the law.  But in the case of the INF Treaty, the President is suspending it on the basis of Russia's violation of the treaty (as the international law of treaties allows the U.S. to do) and is terminating it on the basis of the termination provisions of the treaty (six months' notice).  As a result, he is acting within his executive power in foreign affairs.


Jeremy Telman: Originalism and Second-Order Ipse Dixit Reasoning in Chisholm v. Georgia
Michael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted Originalism and Second-Order Ipse Dixit Reasoning in Chisholm v. Georgia (Cleveland State Law Review, forthcoming; 56 pages) on SSRN.  Here is the abstract: 

This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities. 

Chisholm, the pre-Marshall Court’s most important constitutional decision, illustrates second-order ipse dixit reasoning. The Justices issued their opinions seriatim, and they did not engage with one another’s reasoning. As a result, the Court issues a ruling, but there is no agreement as to the basis for that ruling. Rather, the Justices present us with five separate legal essays in which they ruminate on the nature of sovereignty and its relationship to the jurisdiction of the federal courts.

Scholarly engagement with the constitutional jurisprudence of the early Court has gained new urgency because originalist scholars recently have claimed that originalism informed the early Court’s approach to constitutional interpretation. This Article finds that contemporary filters do not capture the essence of eighteenth-century constitutional adjudication. Like modern textualists, the Justices of the Chisholm Court begin their inquiries with an examination of the constitutional text. However, the constitutional text rarely provided clear constraints on the early Court’s discretion because, to borrow language from New Originalists, their cases arose in the “zone of construction” where original meaning “runs out.” Justices chose among plausible arguments about the Constitution’s meaning. At key points, the Justices simply declared what the law was. They did so, not without justification, but also not based on evidence of the Framers’ intent or the original meaning of the constitutional text. 

Along with Professor Telman's paper on the Marshall Court, this line of inquiry is opening an important new front in the attack on originalism.  To the extent that originalism claims at least some normative force from being a traditional or longstanding approach to the Constitution, it's obviously a bit problematic if early post-ratification courts did not consistently use a version of originalism.

But for a counterpoint, at Law and Liberty, Carson Holloway (Heritage): Marshall, the Dartmouth College Case, and Originalism. Central point:

Nevertheless, Marshall continued, those who sought the intentions of the Framers were not asking the most important question. The key consideration, he suggested, was the words of the Constitution itself, understood according to their ordinary meaning. While “a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some strong reason for excluding it can be given.” Put another way: “The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception.”


This is to say that, for Marshall and for the Court, the immediate intentions of the Framers of the Constitution mattered less than the original meaning of the words they chose to employ in writing the document’s particular provisions. And, Marshall added, those words clearly embraced and therefore protected Dartmouth’s charter of incorporation. For a lawyer, he suggested, it was so obvious as to “require no argument to prove” that a corporate charter is a kind of contract. Moreover, Marshall noted, in being guided by the original meaning of the words used in the Constitution, the Court was simply following “the ordinary rules of construction.”

The originalist inquiry, then, is not an invention of contemporary conservatives. Nor is it an invention of John Marshall or even of the Constitution’s authors. It is rather part of the traditional approach to legal interpretation that the Founding generation had learned from English authorities like William Blackstone.


Robert Natelson: What Is Originalism?
Michael Ramsey

At the Epoch Times, Robert Natelson (Independence Institute) has this essay for a general audience: What Is Originalism? From the introduction:

When President Donald Trump nominated Neil Gorsuch and Brett Kavanaugh to the Supreme Court, it was widely claimed he was appointing “originalists.”

What is an originalist? Although originalists disagree among themselves over some details, they share one core belief: The courts should read the U.S. Constitution in much the same way they read other documents. Judges should not create special exceptions to accommodate politicians or favored groups.

The standard rules for interpreting legal documents—often called “canons of construction”—are centuries old. Some date as far back as the Roman Empire. Originalism is how the Founding Fathers expected the Constitution to be interpreted. If you examine the “Federalist Papers,” you’ll find occasional references to the canons of construction.

Most of the canons are designed to serve one fundamental principle: They help us understand a document the same way the document’s creators understood it.

This basic principle applies to almost all documents. For example, suppose your spouse sends you to the grocery store with a shopping list. The list tells you to buy vegetables. In reading it, you interpret the word “vegetables” as your spouse would have. You don’t “re-interpret” the word to mean “chocolate cake.” You remain faithful to your spouse’s intent, even if you wish he or she had written “chocolate cake” instead.


Lawrence Solum: Originalism versus Living Constitutionalism
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate.  Here is the abstract: 

This Essay explores the conceptual structure of the great debate about “originalism” and “living constitutionalism.” The core of the great debate is substantive and addresses the normative question, “What is the best theory of constitutional interpretation and construction?” That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This Essay advances a metalinguistic proposal for classifying theories as originalist or living constitutionalist and suggests that some constitutional theories are hybrids, combining elements of both theories.

(Via Legal Theory Blog.)


Emoluments and Corpus Linguistics (Updated)
Michael Ramsey

In the Washington Post, reporter Aaron Blake has this story: A big Trump case hinges on the definition of ‘emoluments.’ A new study has bad news for him.  From the introduction:

The [new] study concerns the “emoluments clause” case, which was brought by the attorneys general in Maryland and the District of Columbia. The case seeks to show Trump is violating the portion of the Constitution barring a public official from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The case has progressed further than some experts predicted, with a U.S. district judge last year allowing it to proceed and launching the discovery process, in which Trump’s business dealings can be revealed.

Perhaps the biggest unresolved question hanging over the whole thing is this: What exactly is an “emolument"?

For Trump to have violated the Constitution, it requires his businesses' acceptance of foreign money to be understood as “emoluments.” But that is not a word that is widely in use today, nor has the clause been tested frequently in courts.

Trump’s legal team has pointed to some 18th-century dictionaries to argue for a narrow definition of an emolument as a profit specifically "arising from an office or employ” — i.e. something leveraged by a position of power. The payments to Trump by foreign entities staying at his hotel do not qualify, his attorneys argue, because they are separate from his work as president. The attorneys general argued for a broader definition that includes any benefit, advantage or profit, regardless of official actions.

The U.S. district judge sided with the attorneys general after a Georgetown University law professor studied many more dictionaries written at the time and found they favored the broader definition.

That decision is under appeal, but now a new study submitted as an amicus brief in the case bolsters it, using a much-broader survey of how the word was used in the late-1700s than even the dictionary study.

The study from Clark D. Cunningham at Georgia State University and Jesse Egbert of Northern Arizona University uses a scientific method called “corpus linguistics” that combines traditional linguistics with large sets of data, in the form of contemporary written texts.

And from later on:

Corpus linguistics has been around as a field of study since the 1960s, but it has become increasingly popular among constitutional “originalists” — those who believe we should decide cases based upon the original meaning. Utah Supreme Court Justice Thomas R. Lee, the brother of Sen. Mike Lee (R-Utah), has been a main proponent of its use in judicial opinions, and it has been used in Supreme Court cases in 2011 by Chief Justice John G. Roberts Jr.and last year by Justice Clarence Thomas. The Michigan Supreme Court issued an opinion in 2016 in which every justice cited corpus linguistics.

(Via How Appealing).

UPDATE: At Prawfsblawg, Carissa Byrne Hessick is skeptical: Corpus Linguistics Comes to the Fourth Circuit (and that’s not a good thing!). One of several criticisms:

For one thing, using the phrase “scientific investigation” connotes that the professors conducted an experiment, that the results of that experiment were objectively observable (rather than mere subjective impressions), and that the findings can be replicated.  This is reminiscent of claims by others who advocate for the use of corpus linguistics in statutory interpretation because those “findings are replicable and falsifiable.”

But corpus linguistics does not allow you to type a word or a phrase into a computer which spits out an answer to the question of meaning.  At best, corpus linguistics allows other people to replicate your search of a corpus linguistics database, but it does not allow them to replicate your findings.  That is because the findings of a corpus linguistics analysis require inference and interpretation.  I’ve made this argument before (using a case called Rasabout as my example).  But the subjective judgment required is on stark display in this brief.

Among other inferences, Professors Cunningham and Egbert conclude that, because the word “emolument” was often modified by the word “official,” that means the word “emolument” when it appeared without modification was generally understood to mean something broader than “profit arising from office.”  If everyone would have understood the term “emolument” to be limited to profits from holding office, so their argument goes, then “official emolument” would be an oddly redundant phrase.  It is for similar reasons, Professors Cunningham and Egbert explain, that we don’t often see the word “fork” modified by the word “metal”—we generally assume that if someone is referring to a fork, then he or she is referring to a metal fork.

This analysis by Professors Cunningham and Egbert may seem perfectly logical.  And you may even be convinced by it.  But the fact that something seems logical does not mean it is “scientific.”  To the contrary, many things that appear logically true end up being empirically false.  Once you have to rely on inferences to derive "findings" from your results, you have left the world of objective truth and moved into the realm of theory. 


Nathan Chapman: Due Process of War
Michael Ramsey

Nathan S. Chapman (University of Georgia School of Law) has posted Due Process of War (Notre Dame Law Review, Vol. 94, 2018) on SSRN (71 pages).  Here is the abstract:

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords with this history and suggests useful principles for the “war on terrorism.”

First, all deprivations of rights during war were subject to the law of the land. During a state of war, rights were determined by the law of war, treaty, and statute. The President had no constitutional authority to deprive persons, including enemies, of rights contrary to that law. Second, many deprivations of rights during war were also subject to the Due Process Clause. The courts in England and the United States provided a number of judicial remedies to enforce the law of the land. Americans understood these remedies to be a requirement of due process. Importantly, those courts provided such remedies for many deprivations during war. English and American courts considered habeas petitions for enemy noncombatants; considered trespass suits brought against military officers by enemy noncombatants for deprivations of liberty and property; and reviewed the application of military law by courts martial. When such deprivations were within the jurisdiction of a federal court, they were subject to due process of law. Third, many deprivations of rights during war, though subject to the law of the land, were not subject to due process. The deprivation of rights of enemy combatants on a battlefield and the deprivations of rights of civilians by an officer exercising statutory authority to enforce martial law were subject to the law of the land, but not to due process.


William Baude & Stephen Sachs: Grounding Originalism
Michael Ramsey

William Baude (University of Chicago - Law School) and Stephen E. Sachs (Duke University School of Law) have posted Grounding Originalism (Northwestern University Law Review, forthcoming) on SSRN.  Here is the abstract: 

How is the Constitution to be interpreted? The "positive turn" in legal scholarship treats constitutional interpretation, like statutory or contractual interpretation, as governed by legal rules grounded in actual practice. In our legal system, that practice is committed to a certain form of originalism: our system's official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we've argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided, or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Article offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual practice in those societies, including the particular aspects of legal practice we describe. This positive focus can indeed resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us, or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn't the official story of our law. Stripped of their jurisprudential confusion, however, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders, and to the changes over time that their law has recognized.



Earl  Maltz: The Coming of the Fifteenth Amendment
Michael Ramsey

Earl Maltz (Rutgers Law School) has posted The Coming of the Fifteenth Amendment: the Republican Party and the Right to Vote in the Early Reconstruction Era on SSRN;  Here is the abstract:

The year 2019 marks the one hundred fiftieth anniversary of one of the most significant moments in American constitutional history. On February, 25, 1869, more than two-thirds of the members of the House of Representatives approved the proposed Fifteenth Amendment. The next day, the Senate followed suit, and the proposed amendment was sent to the state legislatures for ratification. After being ratified by the requisite number of states, the Fifteenth Amendment became the last of the three Reconstruction amendments that fundamentally transformed both the structure of the Constitution and the nature of American federalism. 

The Fifteenth Amendment differed from its predecessors in a number of important ways. First, it was the only one of the Reconstruction amendments and remains the only part of the entire Constitution to focus explicitly on race. In addition, the amendment became the first provision of the Constitution to limit the power of the state governments to establish the qualifications for voters in elections for state office, providing that “[t]he right of citizens…to vote…shall not be denied or abridged…on account of race, color, or previous condition of servitude” and also vesting Congress with the authority to enforce this command by adopting “appropriate legislation.” Thus, among other things, the Fifteenth Amendment provided the most plausible source of congressional authority for the passage of the Voting Rights Act of 1965—a statute which was and continues to be, by any standard, one of the most important civil rights measures ever adopted by Congress. 

Nonetheless, unlike the Thirteenth and Fourteenth Amendments, legal scholars have shown little or no interest in exploring the background of the Fifteenth Amendment. This article is the first to describe both the sequence of events that led to the passage and ratification of the Fifteenth Amendment and the forces that shaped the amendment itself. 


Calvin TerBeek on Gun Rights and the Conservative Legal Movement
Michael Ramsey

At A House Divided, Calvin TerBeek:  Gun Rights as Glue? The Contested (and Uncontested) Legal Policy Terrain of the Conservative Legal Movement.  From the introduction:

On Tuesday, the Supreme Court reached down to the Second Circuit and agreed to hear New York State Rifle & Pistol Association v. City of New York (Garrett Epps and gun rights advocate David Kopel have useful summaries). It seems apparent now that Justice Kennedy has been replaced by Justice Brett Kavanaugh the Court is ready to start ramping up the political project, paused after Heller (2008), of strong judicial protection for gun rights. The breadth and scope of the protection the forthcoming opinion will set out is little in doubt. The more interesting question is whether Chief Justice Roberts keeps it for himself or hands it off.

But the case and the expected outcome serve as a useful entryway into thinking about the legal policy terrain of the conservative movement–what the groups making up the movement agree on and how that came to be.

One telling recent moment was libertarian originalist Ilya Somin’s statement on the Volokh Conspiracy defending and defining originalism against a legal realist critique (Eric Segall’s “Originalism as Faith“). Analogizing originalism to an ecumenical Christianity–an interesting analogical move, to be sure–Somin argued that there was substantial policy agreement among the various conservative and libertarian “originalisms” academic lawyers have devised:

“Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme [Court] precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.”

In other words, Somin was asserting (correctly) that there is agreement between the two dominant strands of constitutional conservatism–social and economic–on rolling back the New Deal and Great Society administrative state, economic property rights, and Second Amendment rights. Conspicuously absent from the field of agreement, however, were the social and cultural issues–abortion, LGBT rights, and scope of religious freedom–that animate the socially conservative wing of movement conservatism. Put differently, of all the social issues–and as Matt Lacombe’s forthcoming Journal of Politics article usefully demonstrates, gun rights is very much a social identity cultivated by the NRA over decades–it is gun rights that has emerged as a cultural glue which helps stabilize the coalition and its legal policy goals. ...


William Thro:  Barnett’s & Bernick’s Theory of Constitutional Construction and School Finance Litigation
Michael Ramsey

William E. Thro (General Counsel, University of Kentucky) has posted Barnett’s & Bernick’s Theory of Constitutional Construction and School Finance Litigation (357 Education Law Reporter 464 (2018)) on SSRN.  Here is the abstract:

Although education is not a fundamental right under the United States Constitution, every State Constitution has a provision mandating, at a minimum, that the State provide a system of free public schools. In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner. Despite scores of cases and a significant amount of academic commentary, “there are few certainties in the school funding litigation process.”

Much of the uncertainty results from judicial confusion over the nature of constitutional analysis in school finance litigation. Because state high courts are the ultimate interpreters of state constitutions and because those decisions are binding on parties not before the Court, judges should use the original public meaning of the relevant state constitutional provisions rather than their own policy preferences. While the original public meaning of the State Constitution offers important insights concerning the existence and strength of a quality standard, the burden of proof, and a hierarchy of constitutional values, the question of whether the legislature has acted in accordance with the text is ambiguous. “When interpretation has provided all the guidance it can but more guidance is needed, constitutional interpretation must be supplemented by constitutional construction—within the bounds established by original meaning.” In other words, if the plain language of the constitutional provisions does not provide a definitive answer, then the court must build upon the framework established by the constitutional text. This process of “constitutional construction”—where the judiciary creates a coherent workable rule to resolve the current case and all future cases—has been particularly difficult in school finance litigation. Indeed, in several States, the high court’s failure has led to a genuine constitutional crisis where the legislature has refused to comply with the judicial mandates. 

In The Letter and The Spirit: A Unified Theory of Originalism, Randy Barnett and Evan Bernick offer a solution to the problem of constitutional construction. Recognizing the “letter” of the Constitution (the original public meaning of the text) will sometimes be inadequate to resolve a case, the scholars call for judges to focus on the “spirit” of the Constitution (the “functions, purposes, goals, or aims implicit in its individual clauses and structural design elements”). Contending that judges are fiduciaries bound to respect the Will of the People as expressed in the Constitution, Barnett & Bernick insist that judges have a duty to engage in good faith constitutional interpretation (following the original public meaning of the text) and constitutional construction (following the original functions of the provisions). Although the scholars were addressing analysis of the National Constitution in general, their work is equally applicable to the State Constitutions and to school finance litigation in particular. Indeed, Barnett’s and Bernick’s approach offers a coherent way to resolve school finance litigation while respecting the words actually adopted by the People when enacting their State Constitution. This Article’s purpose to explore the insights of Barnett’s and Bernick’s Letter & Spirit for constitutional construction in school finance litigation. 


The Very First Appropriations Bill Enacted by Congress
Andrew Hyman

There’s currently a debate about whether statutes and/or the Constitution presently allow (or should allow) the President to sometimes move appropriated funds from one pigeonhole to another, for example by declaring an “emergency.”  Mike Ramsey has recently discussed some of the legal ramifications here and here at this blog.  Right now, there are over thirty ongoing declared national emergencies.    Steve Vladeck has a nice summary of the legal kerfuffle at the NBC News website, dated January 24, 2019 in which he suggests it’s constitutional and lawful, but also suggesting that Congress ought to  write legislation sunsetting emergencies so they do not drag on for years or even decades without congressional assent. 

On the subject of appropriations, the Constitution gives Congress power to “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”  Moreover, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....”    The current debate seems not so much about emergencies or border security, as it is about how specific Congress must be about its appropriations.  If Congress can constitutionally give a lump sum to the President each year for each department, then it seems very likely that Congress can give the President a sum of money for a tiny line item along with discretion to use it for a different line item within the same department. 

I want to do a little show and tell now, by displaying the very first appropriations bill enacted by Congress:  

That there be appropriated for the service of the present year the following sums, viz. A sum not exceeding $216,000 for defraying the expenses of the civil list, under the late and present Government; a sum not exceeding $137,000 for defraying the expenses of the Department of War; a sum not exceeding $190,000 for discharging the warrants issued by the late Board of Treasury, and remaining unsatisfied; and a sum not exceeding $96,000 for paying the pensions to invalids.

Here’s what the New York Times has said about this old statute: “That's it. Roughly one-third for the Federal payroll, another third for war and its veterans, and - believe it or not - a third for paying off debt. No tricky formulas, no extraneous amendments, and in that smaller, simpler America, no need for a deficit debate.”    Because this early statute lacked specificity, and because the Constitution’s  language about appropriations also lacks specificity, it seems unlikely to me that Congress must use enough specificity to virtually eliminate discretion from the president as to spending, including spending on purported emergencies.

Peter Tzeng on Treaty Interpretation
Michael Ramsey

Peter Tzeng (Foley Hoag LLP) has posted The Principles of Contemporaneous and Evolutionary Interpretation (Book Chapter, in Joseph Klingler, Yuri Parkhomenko & Constantinos Salonidis (eds.), Between the Lines of the Vienna Convention?: Canons of Construction and Other Principles of Interpretation in Public International Law, pp. 387-422 (2019)) on SSRN.  Here is the abstract: 

The principle of contemporaneous interpretation provides that the terms of a treaty shall be interpreted as they were understood at the time of the conclusion of the treaty. The principle of evolutionary interpretation, on the other hand, provides that the terms of a treaty shall be interpreted as they are understood at the time of the interpretation of the treaty. In certain circumstances, the application of these two principles can lead to very different interpretations of the same term in a treaty. The primary question of this chapter is thus as follows: when should one apply the principle of contemporaneous interpretation, and when should one apply the principle of evolutionary interpretation?

From an originalist perspective, one conclusion is that originalism is a conventional method of treaty interpretation, although it is not called originalism.

Via Larry Solum at Legal Theory Blog, who comments:

Fascinating paper.  This is another issue where the failure to distinguish interpretation (meaning) from construction (legal effect) makes it difficult to sort out the issues.  The actual communicative content (conveyed by linguistic meaning in context) of a treaty fixed at the time of drafting--this is simply a fact about the way linguistic communication works.  But a treaty term can refer to something that changes over time, and hence, the legal effect of the term may evolve.  But "evolutionary interpretation" could also refer to a quite different phenomenon, the use of "amending constructions" by tribunals that are, in effect, changing the terms of a treaty in the guise of interpretation.



Employment Division v. Smith under Attack? (Updated)
Michael Ramsey

Employment Division v. Smith (the Peyote Case) famously held (per Justice Scalia) that neutral laws of general application are constitutional under the free exercise clause even if they prohibit a core practice of a person's religion.  As discussed by Eugene Volokh, this conclusion may now be open to challenge: Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws? He explains:

[On Tuesday], Justices Alito, Thomas, Gorsuch, and Kavanaugh suggested that they would be open to revisiting this question, and to reversing Employment Division v. Smith. This came in their opinion respecting the Court's refusal to review Kennedy v. Bremerton School District, a Ninth Circuit decision upholding the dismissal of a public high school football coach for visibly praying at, among other places, the 50-yard-line after football games. The main arguments in Kennedy had to do with the Free Speech Clause, and most of the opinion dealt with that, though it ultimately concluded that there were procedural reasons why the Court was right to refuse to review the case.

But the four conservative Justices also added this:

In Employment Div. v. Smith, 494 U.S. 872 (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause .... In this case, however, we have not been asked to revisit [this decision].

That's not a statement that Smith is wrong, or that those Justices would vote to overrule it -- but it certainly is a suggestion that they well might do that, and an invitation to litigants to ask for such overruling.

What's more, Justice Breyer had earlier (in City of Boerne v. Flores (1997)) made clear that he thought Employment Division v. Smith was indeed wrongly decided and should be overruled. To be sure, Breyer didn't join the four conservative Justices in Kennedy; but that might be because he disagreed with other parts of their opinion, and saw no need to write a separate opinion expressing his own views. (Many Justices don't write or join opinions related to the refusal to hear a case.) So it looks like there might be five Justices, and not just four, that are at the least open to overruling Smith.

If there is an attack on Smith, it will almost surely involve appeals to original meaning.  As I noted in this article, Justice Scalia's argument on original meaning in the Smith case was surprisingly weak -- he primarily seemed to rest on the proposition that the claimants had not shown any original meaning in support of their position, rather than any affirmative originalist evidence in support of his position.  Scalia provided some originalist evidence in support of Smith in his concurring opinion in Boerne v. Flores, but in the meantime originalist law professor Michael McConnell wrote a comprehensive article defending the opposite view: Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990).  [Sorry, no link; the Chicago Law Review annoyingly does not have its back issues online].  Thus Smith is exposed to originalist attack, as academically oriented Justices like Thomas and Gorsuch surely know.

UPDATE:  Here is a link to Professor McConnell's article (thanks to Will Baude for the pointer & apologies to the Chicago Law Review -- apparently I was not looking in the right place).


Twenty-first Amendment Originalism?
Michael Ramsey

Last week's U.S. Supreme Court argument in Tennessee Wine and Spirits Retailers Association v. Blair may indicate an opinion (or opinions) exploring the original meaning of the 21st Amendment (repeal of prohibition). 

The question presented is "Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time?"  Tennessee's residency requirement would very likely be unconstitutional under the dormant commerce clause (or originalists might prefer the Article IV privileges and immunities clause). But the 21st Amendment, Section 2, says that "The transportation or importation into any State, Territory or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."  Does this validate otherwise-problematic state regulations of alcohol?  Past Supreme Court cases have been, shall we say, not entirely consistent.  At several points in the argument the Justices explored the Amendment's original meaning (without obvious success).  As described at SCOTUSblog: 

Representing the retailers defending the residency requirement, attorney Shay Dvoretzky told the justices that ... [t]he 21st Amendment . . . was intended to give back the powers that the states had had before Prohibition under two federal laws – the Wilson Act and the Webb-Kenyon Act – that gave them “near complete” power to regulate the distribution of liquor. States can do almost anything, Dvoretzky stressed, as long as they treat in-state and out-of-state products the same, which the residency requirement does.


Justice Brett Kavanaugh was skeptical. The problem I’m having, Kavanaugh said to Dvoretzky, is that nothing in the text of the 21st Amendment – which bars the “transportation or importation” of liquor into a state in violation of that state’s laws – gives the states complete authority over the distribution of liquor. All that the 21st Amendment was intended to do, Kavanaugh suggested, was let states remain “dry” if they opted to do so; it wasn’t intended to allow states to pass laws that discriminate against out-of-state interests.


Appearing on behalf of Total Wine and the Ketchums, lawyer Carter Phillips reiterated Kavanaugh’s suggestion (later echoed by Alito) that the 21st Amendment does not give states broad authority to regulate alcohol but instead was intended to allow states that had decided to remain “dry” to stop the importation of alcohol from other states.

Notably, the court of appeals held the state's residency requirement unconstitutional over a partially originalist dissent by Judge Jeffrey Sutton.


Eric Segall Responds to Ilan Wurman on Originalism
Michael Ramsey

At Dorf on Law, Eric Segall responds to Ilan Wurman's review of his book Originalism as FaithOriginalism and Deference: A response to Ilan Wurman.  From the main part of the argument:

...[T]the overriding point of Originalism as Faith is that originalists only have two coherent choices. They can use text and history as the main instruments of constitutional litigation if and only if they bring to the table great deference (something very few modern originalists embrace). That is because, if we are not, as Wurman contends, bound by the ratifiers' specific factual assumptions, we will have to bring our modern assumptions into play. But once we do that, there is no material difference between originalists and living constitutionalists. 

The other option, the one I prefer, and the one advocated by Robert Bork, Raul Berger, Lino Graglia, Steve Smith and Michael Paulsen, among a few others, is for judges to only reverse the decisions of other political actors when a party brings to the court clear and convincing evidence of an "irreconcilable variance" between a law and the Constitution. If this is the kind of deference Wurman has in mind, then we agree on the appropriate nature of judicial review, and on what originalism entails. But if he has in mind a larger role for judges to play (and I think he does) and he wants to self-identify as an originalist, he needs a much richer theory of the relationship between recovering constitutional meaning and judicial review than he has presented so far either in his kind review of my book or in his own book. In other words, there is a great tension--one I have not yet seen resolved by any originalist scholar or judge--between Wurman's belief that we are not bound by the factual assumptions of the ratifiers and the proposition that the Constitution "is not an open invitation for judges to import their own, extratextual values into the Constitution." 

I hope Wurman continues to write on originalism and wrestles with that very problem.

Professor Segall also adds this response to my blog comment on his book and Wurman's review: 

Ramsey's example [of the Noel Canning case] reveals a lot about the alleged differences (or not) between originalism without deference and living constitutionalism. First, Canning is the relatively rare case where a theory of deference to political actors is not helpful, because the case involves a direct confrontation between the Congress and the President, not just an individual or group and one branch of government. The judge deciding the case has no choice but to show a lack of deference to one of the two other branches of the federal government. I have always conceded that there are some situations where a strong theory of deference will not materially assist the Court.

Second, even if we know the true original meaning of "recess appointment," that meaning was based on a host of important factual assumptions that Wurman (and I think Ramsey) believe we are not bound by today. In 1787, the Congress met much less frequently than today, travel to and from the capital was obviously much more difficult than today, and the power, prestige, and size of the Executive Branch was completely different compared to the Congress than it is today. The meaning of "recess appointment" may well have been based on any combination of now changed factual assumptions, thus allowing even an originalist judge to update the application of that meaning to modern conditions--in other words, to act exactly like a living constitutionalist.

Finally, and most importantly, unlike words and phrases like "due process," "equal protection," "free exercise," "establishment," and "speech," the phrase "the recess of the Senate" might have had a technical and narrow legal meaning. I can agree with Ramsey that "[e]ven if originalism fades into nonoriginalism for some constitutional provisions, it remains distinct as applied to others," and also argue that the vast majority of litigated constitutional law cases (almost all of them in fact) involve vague and imprecise constitutional text where "originalism fades into nonoriginalism." Given that reality, I can sleep quite well at night reflecting on my book's major thesis that originalism without great deference is indistinguishable most of the time from living constitutionalism, and will ultimately rest on modern values and assumptions, not original meaning.

Without getting into an extended reply, I'll say that I do not agree with the methodology suggested in the second paragraph.  "Recess" (and "vacancy") in the the recess appointments clause had a meaning when the Constitution was ratified and a mainstream originalist would apply that meaning today without any need of "updat[ing]" -- even though, in light of some factual changes and modern conditions, a different rule might arguably be a pragmatically preferable one.

Update by Mike Rappaport: While it is not central to the dispute here, I should note (since it is so often misunderstood) that most of the changes in the world since the Framing suggest a recess appointments clause that is narrower than the original meaning, not broader, as Noel Canning held. If there is air travel today, we have far less need for recess appointments at all.   I make this and other points in this article: Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause.


Jeffrey Bellin: Fourth Amendment Textualism
Michael Ramsey

Jeffrey Bellin (William & Mary Law School) has posted Fourth Amendment Textualism on SSRN.  Here is the abstract:

The Supreme Court’s inability to coherently define the term “search” plagues its Fourth Amendment jurisprudence. Even the Justices know they have a problem. Recent opinions only half-heartedly apply the controlling “reasonable expectation of privacy” test and its reviled cousin, “third-party doctrine,” with a few Justices in open revolt. 

These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The Justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit the same complexity, subjectivity, and illegitimacy that pervades the status quo.

This Article proposes a shift toward simplicity. Buried underneath the doctrinal complexity of the past fifty years is a straightforward constitutional directive. A simple three-part formula, derived from the constitutional text, deftly solves the Fourth Amendment “search” conundrums that continue to beguile the Court. This textualist approach offers clarity and legitimacy, both long missing from “search” jurisprudence. And by generating predictable and sensible answers, the proposed framework establishes clear boundaries for police investigation, while incentivizing legislators to add additional privacy protections where needed.

Via Larry Solum at Legal Theory Blog, who comments:

By "textualism," the author means to refer to the so-called "new textualism" associated with James Ryan.  It is unclear to me how constitutional new textualism is conceptually distinct from originalism.



The Relevance of Edward Coke’s Original Meaning: A Reply to Evan Bernick
Andrew Hyman

My thanks to Evan Bernick for responding to my earlier post about what Edward Coke originally meant by the term "due process of law."  Bernick is “primarily concerned” with how Coke was understood by the generations of Americans who authored the U.S. Constitution, rather than with Coke’s original meaning.  I entirely agree with Bernick on this point, but also believe that Coke’s original meaning is among the best evidence of how Coke was later understood by Americans.

Absent clear evidence from each of the original thirteen states about what Coke’s definition of due process of law meant to them, I think it makes good sense to assume that the people in those states understood Coke correctly rather then incorrectly.  On the other hand, if evidence from some of the original thirteen states indicates a clear misunderstanding of Coke on this point, then we would probably have to inquire whether people in those states were more apt to stick with their own spin on Coke, notwithstanding further evidence about what Coke actually meant.  And then we would have to balance the evidence from all of those thirteen states. 

In short, Coke’s original meaning seems very pertinent to interpreting the U.S. Constitution, whereas Bernick finds it “irrelevant to the arguments we make concerning original meaning.”  Of course, there is plenty of evidence unconnected to Lord Coke that can help us understand the original constitutional meaning of “due process of law,” but Coke’s original meaning justly carries a great deal of weight too.  I object to the notion that one can properly understand how people in 1789 understood Coke without considering what Coke himself originally meant.  Because Coke’s original meaning was the focus of my post, and because Bernick finds it “irrelevant,” I suppose we will have to agree to disagree about its relevance.

Despite Bernick’s belief that Coke’s original meaning is irrelevant, he quotes Coke quite a lot, including Coke’s statement that due process of law is “declaratory of the old law.”  But Bernick does not quote or comment upon the passage that I pointed to where Coke explains exactly what he meant by that phrase “declaratory of the old [law].”   And readers of Coke in 1789 would have seen that that passage was merely referring to any statutory provision that does not change the law but rather repeats already-existing law; the Edwardian due process statute did just that, i.e. it merely repeated what was already the law according to Magna Carta’s Law of the Land Clause. 

I do not understand where in Coke's writings a reader in 1789 would have gotten the idea that the criteria for legality went beyond the criterion of enactment or acceptance by the supreme legislative power.  Bernick quotes Coke on monopolies, but leaves off the last seven words; Coke wrote that monopolies are “against this great Charter, because they are against the liberty and freedom of the Subject, and against the Law of the Land.”  Ryan Williams has correctly observed:

English courts had long held monopolies granted by the Crown without Parliament's approval to be prohibited by the common law, and such grants were formally prohibited by the Statute of Monopolies enacted by Parliament in 1624 four years before the first volume of Coke's Institutes appeared.  Coke's characterization of monopolies as contrary to the law of the land may thus have signified nothing more than that monopolies granted as a matter of royal prerogative were contrary to then-existing English common law and statute law….

It therefore seems pretty clear that Coke meant monopolies could be made legal by parliament, but were not legal as of the date of his treatise. 

I do not mean to suggest that construing Fifth Amendment "due process of law" in line with Coke would leave Congress totally unlimited by this clause.  Congress would not only be prohibited from contradicting or repealing this clause, but also would be forbidden (e.g.) from enacting weaker remedies than “liberty” when the criminal procedures listed in the rest of the Bill of Rights are violated.  I note that Richard Re has proposed a similar interpretation of “due process of law” to justify the Exclusionary Rule, although I would limit that interpretation to violations that occur during rather than before an “action,” in keeping with the definition of the word “process” that was prevalent in 1789.


Ilan Wurman on Eric Segall on Originalism
Michael Ramsey

At the Claremont Review of Books, Ilan Wurman (Arizona State) has the second part of his review of recent critiques of originalism (here is the first part): Originalism’s New Critics, Part 2: Faith (reviewing Eric Segall, Originalism as Faith).  From the introduction:

Georgia State law professor Eric Segall’s new book, Originalism as Faith, makes a more conventional—and for that reason more powerful—attack on originalism. The Constitution is written in such broad generalities—generalities like “due process,” “equal protection,” “cruel and unusual,” “unreasonable searches and seizures,” and “free exercise of religion”—that, Segall argues, even originalists must deploy personal policy preferences and value judgments in most contested constitutional cases. We’re all living constitutionalists, even if most of us pretend to be restrained by the Constitution’s text.

The criticism that originalism is merely a rationalization for conservative political results is not new. But in making his criticism, Segall is refreshingly honest about nonoriginalism. Most nonoriginalists claim they simply interpret the same text originalists interpret, but draw different conclusions based on their examination of contemporary understandings and practices. Only a few nonoriginalists—like Andrew Coan at the University of Arizona—acknowledge that nonoriginalism is about changing the Constitution over time. Segall, I take it, would agree with that characterization of nonoriginalism. More nonoriginalists should openly embrace that view; after all, that’s what they’re actually advocating.

Segall’s account of originalism in practice, and also of some modern originalists, is undeniably fair, thoughtful, and in many ways accurate. Some schools of originalism may very well be hard to distinguish from living constitutionalism. One maintains a distinction between “interpretation” and “construction”—interpretation dealing only with the meaning of the text, and construction dealing with the question of what to do when the meaning doesn’t answer the question at hand. If this distinction is real, and if meaning often leaves a large construction zone, then perhaps originalism can be hard to distinguish from living constitutionalism.

And from further along:

In my view, Segall is wrong because ... [t]he Constitution’s provisions are not the broad and vague generalities that Segall or advocates of a large construction zone believe. The problem with Segall’s argument is that the Constitution simply isn’t written in terms as broad as he thinks. If I am correct, then our disagreement dissolves. After all, if “equal protection” means nothing more nor less than “equality” subject to reasonable discrimination, and if “due process” is nothing but a delegation to future courts to decide what is “fair,” then I suppose there really is no daylight between our theories.

But those provisions are not broad generalities. Due process of law meant something far more specific than Segall seems to believe: no person could be deprived of life, liberty, or property without first having violated some preexisting law. Congress could not, by mere legislative decree, imprison someone or take one’s property and give it to someone else. The government could only deprive an individual of such rights pursuant to existing, known, and established laws. And any adjudication of a violation of those laws had to be conducted pursuant to a minimum of fundamental procedure. “Due process” is not a blank check for the Supreme Court to decide what is “fair.”

Similarly, equal protection is not about equality generally, but about equal protection of law.  ...

I think this is right, but even if it's not, I would add that there are many provisions in the Constitution that are obviously not broad generalities -- they are, rather, fairly specific directions about the design of government.  Even if originalism fades into nonoriginalism for some constitutional provisions, it remains distinct as applied to others.  To pick just one example, the clause at issue in NLRB v. Noel Canning -- the President's recess appointments power -- is not a broad generality.  Originalist and nonoriginalist approaches to that clause are quite distinct, as the majority and concurrence in that case demonstrate.



David Forte on John Dickinson on Free Speech
Michael Ramsey

At Liberty Law Blog, David Forte (Cleveland State): Dickinson, “Penman of the Revolution,” on Freedom of the Press.  From the core of the discussion:

At that First Continental Congress, the renowned penman [John Dickinson] was also the primary author of three other documents.... Most important to the history of freedom of the press, the delegates assigned Dickinson to write a Letter to the Inhabitants of Quebec in hopes of convincing the French Catholics there of the righteousness of the American resistance. He deftly produced a draft in short order; by October 26, 1774, the Letter was ready.

Dickinson’s rhetorical tack was to warn the Canadians of perfidious Albion—to persuade them that the English promises to respect French Civil Law could not be trusted and that their uncertain fate lay in the hands of a deceitful British Governor. They ought, Dickinson urged, to join with the other colonies in a constitutional order in which one’s rights would be guaranteed against any arbitrary deprivation. Dickinson listed a number of rights that he clearly thought would be of signal importance to the French Canadians. They included the right to representative government, trial by jury, habeas corpus, and the end of feudal servitudes.

And now we come to the crux of it:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

In few other places in pre-Revolutionary literature was the right of free expression expressed with such particularity. We can credit for the Letter’s authoritativeness its author, who was, at that time, the most respected spokesman of the colonial cause.

And from further on:

Sir William Blackstone, the renowned judge and professor, had published his Commentaries on the Law of England in the years 1765 through 1769. Blackstone and Dickinson had both been members of the Middle Temple in London, and Dickinson was one of the first American subscribers to Blackstone’s work. In the Commentaries, as we know, Blackstone summarized and legitimated the law on seditious libel, a restriction on the press that most observers agree had never taken root in the colonies and that was flatly at odds with the principles of the Letter to the Inhabitants of Quebec.

Blackstone’s doctrine of seditious libel became an alien interloper into the native American conception of the freedom of the press, and over the next few decades, uncomfortably wedged itself into the American consensus. It was not until the 1960s that the Dickinsonian view of a free press as articulated in the Letter to the Inhabitants of Quebec finally expunged Blackstone from American jurisprudence on the First Amendment. The original original understanding of a free press had triumphed at last.


Ilan Wurman on Jonathan Gienapp on Originalism
Michael Ramsey

At the Claremont Review of Books, Ilan Wurman (Arizona State): Originalism's New Critics, Part 1: Fixing Fixity (reviewing The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp).  Here is the introduction: 

Brett Kavanaugh’s ascension to the United States Supreme Court is sure to thrust originalism center stage in the debates over constitutional interpretation. Two well-timed new books—Jonathan Gienapp’s The Second Creation: Fixing the American Constitution in the Founding Era and Eric Segall’s Originalism as Faith—challenge originalism’s legitimacy and coherence. But though they present some new evidence and arguments, both books essentially resurrect two older, and still unconvincing, critiques.

When H. Jefferson Powell’s law review article, “The Original Understanding of Original Intent,” appeared in 1985 it was considered a fatal blow to originalism. Powell argued that the founders didn’t think their intentions should govern in the future, and therefore a method of constitutional interpretation privileging such intent was self-refuting. Powell’s article is still cited for the proposition that because the founders were not originalists, originalism refutes originalism.

Yet originalism overcame this attack. Today, originalism means we are bound by the original meaning of the Constitution’s text, not by any secret intentions of the framers. Of course, the framers’ intent is good evidence of what the text means; after all, most people deploy words to accomplish specific objectives. Thus the historical practices of earlier times are also evidence of the text’s meaning. But such intent and practices are not dispositive. Under this version of originalism, all of the founders were originalists. Even the nonoriginalist professor Segall (whose book I will review in the second installment of this essay) acknowledges that the founders “viewed constitutional interpretation ‘as an exercise in the traditional legal activity of construing a written instrument’ and thought that the usual ‘methods of statutory construction’ would be used by judges in constitutional cases.” For this proposition he cites Powell, who acknowledged that the founders expected the Constitution to be interpreted the way all legal texts are interpreted.

Jonathan Gienapp, in The Second Creation, doesn’t dispute that the founding generation expected constitutional meaning to be fixed over time and interpreted with the usual modes of statutory construction. Gienapp, an assistant professor of history at Stanford University, instead argues that the founders only came to this view some years after the Constitution’s ratification in 1788. Although by the mid-1790s members of the founding generation came to believe that the Constitution’s meaning would be fixed, it did not have to be this way. If we are originalists all the way down, then we must look to the very moment of founding; and, at that time, whether the Constitution’s meaning would be fixed, and whether it would be confined to its words, were widely contested and contingent propositions. And if they were contingent then, they are contingent now.

And from later on:

More important than the Constitution’s words [says Gienapp] is the government’s structure, the empowering of “the right kinds of counterforces.” It is not enough to delineate power “on paper”; according to Gienapp, “[r]educing constitutionalism to the mode through which it was written reflected a misunderstanding of the tasks inherent to such a project.” Constitutionalism “meant balancing powers and interests,” not “policing linguistic barriers.” Gienapp concludes that Madison “openly disparaged” the use of “constitutional language.” Other founders similarly worried about “a mere paper security” sought to “construe the object they were constructing in avowedly nontextual ways.” It is deeply misguided, writes Gienapp, “to assume that a constitution could ever by reduced to its language, that its constituent powers could be established via ‘paper discriminations.’”

These observations miss the mark. True, the framers were concerned about mere “parchment barriers.” They believed a mere declaration of rights or limits on power was insufficient to enforce such rights and limits because words could too easily be ignored by those in power. As the late Justice Scalia was fond of saying, any tinpot dictator can have a bill of rights. What really matters is the Constitution’s structure, the checks and balances and separation of powers that ensure, as Madison writes, that “ambition [is] made to counteract ambition.” But what creates this structure—this separation of powers? The words of the Constitution. If words were so imprecise and meaningless, and the Constitution were not confined to its words, then the separation of powers itself would be meaningless.

And for a specific example:

The removal power debate [of 1789], however, revolved around the meaning of the Constitution, not about its nature. The Constitution doesn’t explicitly mention the removal power, true enough; but that does not mean that, as a matter of textual interpretation, the removal power does not exist. Madison argued the power belonged to the President as a matter of the Constitution’s text. How did he reach that conclusion? By the very structure of Article II. Unlike Article I, which gives Congress only the legislative power “herein granted,” Article II vests “the executive power” in the President. This vesting of executive power is subsequently limited by other parts of the constitutional text. For example, Congress is given the power to declare war and issue letters of marque and reprisal (two historically executive powers), and the Senate is given a share in the appointment and treaty powers through advice and consent. If removal is an “executive power” not otherwise limited in the Constitution’s text, then it is “vested” in the President.


Statutory Originalism with Liberal Results: New Prime Inc. v. Oliveira
Michael Ramsey

Yesterday's unanimous Supreme Court opinion in New Prime Inc. v. Oliveira is a lot more interesting than it sounds.  The Court, per Justice Gorsuch [Justice Kavanaugh not participating] held that the Federal Arbitration Act’s exclusion from arbitration for disputes involving the “contracts of employment” of certain transportation workers applies to truck driver Dominic Oliveira’s independent contractor operating agreement with New Prime Inc.   The key issue was whether whether a "contract for employment" includes an independent contractor arrangement.  And that turns out to depend on what the original meaning of "contract for employment" is.  Here's Gorsuch: 

In taking up this question, we bear an important caution in mind. “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 9) (quoting Perrin v. United States, 444 U. S. 37, 42 (1979)).  See also Sandifer v. United States Steel Corp., 571 U. S. 220, 227 (2014). After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. INS v. Chadha, 462 U. S. 919, 951 (1983). We would risk, too, upsetting reliance interests in the settled meaning of a statute. Cf. 2B N. Singer & J. Singer, Sutherland on Statutes and Statutory Construction §56A:3 (rev. 7th ed. 2012). Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included. Id., §51:8 (discussing the reference canon). But nothing like that exists here. Nor has anyone suggested any other appropriate reason that might allow us to depart from the original meaning of the statute at hand.

Agreed.  But how about a cite to Scalia & Garner?

The opinion continues:

That, we think, holds the key to the case. To many lawyerly ears today, the term “contracts of employment” might call to mind only agreements between employers and employees (or what the common law sometimes called masters and servants). Suggestively, at least one recently published law dictionary defines the word “employment” to mean “the relationship between master and servant.” Black’s Law Dictionary 641 (10th ed. 2014). But this modern intuition isn’t easily squared with evidence of the term’s meaning at the time of the Act’s adoption in 1925. At that time, a “contract of employment” usually meant nothing more than an agreement to perform work. As a result, most people then would have understood §1 to exclude not only agreements between employers and employees but also agreements that require independent contractors to perform work.

There follows extensive discussion of the original meaning from 1925.

Then a rejection of the purpose-based counterargument:

Unable to squeeze more from the statute’s text, New Prime is left to appeal to its policy. This Court has said that Congress adopted the Arbitration Act in an effort to counteract judicial hostility to arbitration and establish “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). To abide that policy, New Prime suggests, we must order arbitration according to the terms of the parties’ agreement. But often and by design it is “hard-fought compromise[],” not cold logic, that supplies the solvent needed for a bill to survive the legislative process. Board of Governors, FRS v. Dimension Financial Corp., 474 U. S. 361, 374 (1986). If courts felt free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal, we would risk failing to “tak[e] . . . account of ” legislative compromises essential to a law’s passage and, in that way, thwart rather than honor “the effectuation of congressional intent.” Ibid. By respecting the qualifications of §1 today, we “respect the limits up to which Congress was prepared” to go when adopting the Arbitration Act. United States v. Sisson, 399 U. S. 267, 298 (1970). 

Result:  The truck driver wins, arbitration loses.

Justice Ginsburg, concurring:

“[W]ords generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” Ante, at 6 (quoting Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 9)). The Court so reaffirms, and I agree. Looking to the period of enactment to gauge statutory meaning ordinarily fosters fidelity to the “regime . . . Congress established.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 234 (1994).

Congress, however, may design legislation to govern changing times and circumstances. See, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 14) (“Congress . . . intended [the Sherman Antitrust Act’s] reference to ‘restraint of trade’ to have ‘changing content,’ and authorized courts to oversee the term’s ‘dynamic potential.’” (quoting Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 731‒732 (1988))); SEC v. Zandford, 535 U. S.  813, 819 (2002) (In enacting the Securities Exchange Act, “Congress sought to substitute a philosophy of full disclosure for the philosophy of caveat emptor . . . . Consequently, . . . the statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” (internal quotation marks and paragraph break omitted)); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 243 (1989) (“The limits of the relationship and continuity concepts that combine to define a [Racketeer Influenced and Corrupt Organizations] pattern . . . cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a ‘pattern of racketeering activity’ exists. The development of these concepts must await future cases . . . .”). As these illustrations suggest, sometimes, “[w]ords in statutes can enlarge or  contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” West v. Gibson, 527 U. S. 212, 218 (1999).