05/24/2019

Seth Barrett Tillman on George Washington and Foreign Emoluments
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: General George Washington and the Bank of England.  From the introduction (footnotes omitted):

There is substantial evidence to support the inference that Washington, for one, did not view “private business pursuits . . . with foreign state-chartered trading companies” as emoluments. During the Revolutionary War, George Washington owned stock in, and received dividends from, the Bank of England. This foreign corporation received its charter by operation of an act of the English Parliament: the Tonnage Act of 1694. The Bank of England, which was analogous to the first Bank of the United States, served as the private banker for the British Exchequer. More importantly, the Bank of England was analogous to the foreign government “instrumentalit[ies]” that Plaintiffs [in the emoluments litigation] allege Trump-affiliated commercial entities are doing business with.

At the relevant times, the Articles of Confederation governed our young republic. That charter included a Foreign Emoluments Clause, which provided “[N]or shall any person holding any office of profit or trust under the United States, or any of them [i.e., any State], accept of any present, emolument, office or title of any kind whatever from any King, Prince or foreign State . . . .” Furthermore, the Continental Congress had chosen Washington as the commander-in-chief of the nation’s armed forces. As an appointed military officer, he held an “office . . . under the United States,” and could not “accept of any . . . emolument” from a “foreign State.”

This is an excerpt from the amicus curiae Brief of Scholar Seth Barrett Tillman and Judicial Education Project Support of the Defendant’s Supplemental Brief in Blumenthal v. Trump (Civ. A. No. 1:17-cv-01154-EGS) (D.D.C.), available in full here.

05/23/2019

Michael Pardo: Confrontation After Scalia and Kennedy
Michael Ramsey

Michael S. Pardo (University of Alabama School of Law) has posted Confrontation After Scalia and Kennedy (Alabama Law Review, Vol. 70, 2019) (29 pages) on SSRN.  Here is the abstract:

This symposium essay discusses the recent history and current state of the Confrontation Clause and then explores its possible futures. Justice Scalia’s 2004 opinion in Crawford v. Washington transformed confrontation doctrine and consequently rendered many types of hearsay statements potentially inadmissible in criminal cases. Although Crawford strengthened the right to confrontation in several respects, the subsequent decade produced significant backlash and disagreements—including dissenting opinions from Justice Kennedy—as the Court attempted to implement and develop confrontation doctrine. The fault lines that emerged among the Justices have left the current state of confrontation doctrine in disarray, particularly in cases involving expert witnesses. The replacement of Justices Scalia and Kennedy (Crawford’s champion and one of the principal dissenters in subsequent cases, respectively) with Justices Gorsuch and Kavanaugh has added to the uncertainty surrounding the doctrine’s future. This essay examines the possible pathways by which the doctrine on the Confrontation Clause may develop, distinguishing between cases involving experts and non-expert witnesses.

05/22/2019

Scott Gerber on Chisholm v. Georgia
Michael Ramsey

At Law & Liberty, Scott Gerber: In Defense of the Supreme Court’s First Constitutional Law Decision.  From the introduction:

Last Monday, the U.S. Supreme Court held in Franchise Tax Board of California v. Hyatt, in a 5 to 4 opinion by Justice Clarence Thomas, that a state can maintain its sovereign immunity from lawsuits in other states, reversing a prior decision the Court issued in 1979 in Nevada v. Hall. ...

Importantly, [Hall] was not the only precedent on the subject. In fact, the Court’s first full-scale constitutional law decision, Chisholm v. Georgia, decided in 1793, was also in the way. At issue in Chisholm was whether a citizen of one state, South Carolina, could bring suit in federal court against another state, Georgia. The subject matter of the suit was a sizable debt that the state of Georgia had incurred in purchasing military supplies from Chisholm’s testator during the American Revolution.

As the post goes on to explain, in the Court's seriatum opinions Justice Wilson and Chief Justice Jay embarked on wide-ranging opinions that distract from the textual force of the argument against sovereign immunity.  However:

The opinions of John Blair and William Cushing in the Chisholm case have been called, among other things, “unimaginative.” It is more accurate to say they stayed on point. Blair began his opinion with a subtle expression of disapproval of the rambling opinions of Iredell [in dissent], Wilson, and Jay: Blair said he would pass over the “various European confederations. . . . The Constitution of the United States is the only fountain from which I shall draw.” Blair was true to his word. In fact, he needed but three pages to decide the case, and his decision was based on a plain reading of the words of the Constitution.

William Cushing’s opinion was similar to Blair’s in both tone and method. He, too, began by saying, “the point turns not upon the law or practice of England, . . . nor upon the law of any other country whatever” and he, too, emphasized the words of the Constitution. Put simply, Cushing’s opinion is a straightforward example of textual analysis. To Cushing, the clause in question, “between a state and citizens of another state,” needed to be read in conjunction with the clause that immediately preceded it, “to controversies between two or more states”—a clause that plainly envisioned the state as a defendant. If any exception was intended in the suability of a state, Cushing insisted, it would have been written into the Constitution. Cushing drove this point home by explaining that another clause in the relevant section subjected foreign states to suit in federal court by American citizens. Thus, the “sovereignty” argument was of no avail, Cushing concluded, unless one accepted the improbable argument that the clause meant “we may touch foreign sovereigns but not our own.”

The modern Court's doctrines of state sovereign immunity depend on the proposition that Chisholm was wrongly.  But perhaps that is not so obvious.

(Thanks to Mark Pulliam for the pointer).

RELATED:  Michael Dorf has this post at Justia criticizing the Hyatt decision:  Supreme Court’s Conservative Majority Issues Another Atextual Ruling in a Sovereign Immunity Case.  As discussed here, I basically agree with his bottom line.  But I think he obscures how much more problematic Hyatt is by lumping it in with the rest of the Court's state sovereign immunity decisions.

Professor Dorf says the others decisions are also atextual, but that's not entirely right.  Properly understood, the rule that states are immune in federal court comes from the vesting of the "judicial Power" of federal courts in Article III.  The theory is that historically "judicial power" did not include the power to hear suits against sovereigns, and so that meaning should be giving to it in Article III.  True, one has to go outside the text to find this rule, but it reflects the use of a background assumption to interpret text, which is not at all contrary to conventional originalism.  (This may be an incorrect interpretation of Article III, as Professor Gerber argues in the post linked above.  But that doesn't mean it's atextual; it just means it's wrong).

It's also true (as Professor Dorf says) that interpreting Article III does not get the result in Alden v. Maine, holding that state courts are immune from suit in their own courts.  But it's important to state the holding of Alden precisely (which Professor Dorf does not): it is that Congress cannot make states subject to suit in their own courts.  This conclusion is (or should be) based on the necessary and proper clause.  It's not necessary and proper to any of Congress' powers to impose such liability on the states (in particular, it isn't "proper" given the federal structure).  Unfortunately Justice Kennedy, writing for the majority, did not put it this way in Alden, but it is a reasonable textual foundation for the result in Alden.  (As with the other immunity decisions, I'm only saying here that there is a textual foundation for Alden, not that it is correct).

In contrast, so far as I can tell, there is no plausible textual foundation for Hyatt at all.  It is not an interpretation of any constitutional text.

05/21/2019

Jordan Perkins: Originalism, Judicial Supremacy, and the Concept of Law
Michael Ramsey

Jordan Perkins (Columbia University, Department of Political Science) has posted Thinking Institutionally About Judicial Review: Originalism, Judicial Supremacy, and the Concept of Law (48 pages) on SSRN.  Here is the abstract: 

In this essay, I intend to advance two primary ideas. In the first part, I argue that originalism, as a judicial philosophy incubated as a conservative reaction against the legislative excesses of the Warren Court, is intrinsically wedded to two core theses: (a) the (in principle) determinacy of legal rules and (b) judicial supremacy. By the ‘determinacy of legal rules,’ I mean the idea that, in all but borderline cases, a uniquely correct outcome can be determined, based on objective criteria, given the case’s facts and the legal principles most appropriately tied to those facts. This is the jurisprudential theory of legal positivism, which originalists [almost?] categorically accept. By judicial supremacy, I mean acceptance of the principle that the final interpretive authority of the Constitution is and should be the judiciary, as opposed to some other institutional actor. While generalizing about ‘originalism’ is dangerous, given the perhaps dozens of distinct varieties pursued by American legal scholars and jurists over the past half-century, I believe that these two ideas are intrinsic to most, if not all, strands of originalism widely utilized in the legal academy. Casting doubt on these theses would thus be a substantial contribution to contemporary debates over how the constitution should be interpreted. Primarily for their importance and familiarity to academic audiences, I focus on what I call two ‘old’ originalist jurists, Robert Bork and Antonin Scalia, and arguably the most central figure of ‘new’ originalist thought, Randy Barnett, to show how these two theses play into their versions of originalism.

In the second part of this essay, I argue that the first of these ideas, the determinacy of law, is unappealing because legal rules themselves are often not sufficiently outcome determinative to fulfill the role that originalists tend to presume that constitutional rules, properly understood, should. My argument utilizes the interpretivist jurisprudence of Ronald Dworkin. If I am right, the question of who has interpretive authority is just as crucial as the question of how the Constitution should be interpreted. With regard to the second thesis, I argue that judicial supremacy is an inappropriate structural feature in our separation of powers system. Relying on the constitutional theory of German jurist Carl Schmitt, I argue, first, that the Supreme Court has generally proven incapable of serving, at least in times of crisis in which it is arguably most needed, as an efficacious guardian of constitutional norms, and, second, that its attempts to do so have proven disastrous for the legitimacy of the federal judiciary over the past few decades. I conclude with some normative arguments, based on the work of Jeremy Waldron, as to why the judiciary is an inappropriate institutional actor for the application of originalist methodology.

With respect, I think Professor Perkins is wrong as to both of the points he says are "intrinsic" to originalism. 

As to the second point, I simply don't understand the claim that originalism depends on judicial supremacy.  Originalism is a argument about how the Constitution should be interpreted (or, really, an argument about how legal texts should be interpreted).  It isn't specific to judges, at least in most of its forms.  If judges are not the final interpreters of a legal text, some other institution must be, and originalism will argue that that institution should use originalism as its interpretive guide.  (For what it's worth, a good bit of my foreign affairs scholarship is in areas that courts likely won't decide due to standing, political question and related doctrines, but I don't see why originalism isn't relevant to those areas; people seem to care a lot about the original meaning of the declare war clause even though it's not likely to be decided by a court).  Moreover, we actually live in a era of "judicial supremacy" (by Professor Perkins' definition -- I think he just means constitutional judicial review).  So even if originalism does assume judicial review (which it need not), it's still relevant to the actual real world, if perhaps not to Professor Perkins' preferred world.

On the first point, I've argued here a number of times against this common criticism of originalism so I'll just summarize.  Originalism does not assume that all or most legal questions are determinate by originalist methods.  The core proposition of originalism is only this: to the extent legal questions are determinate by originalist methods, they should be resolved according to originalist methods.  (And "determinate" here does not mean "beyond any reasonable doubt"; it only means by fairly strong evidence).  Originalism accepts that not all questions are determinate by originalist methods, although it's divided on how then to proceed: (a) one might say that when originalism can't clearly answer a question, one must resort to other methods in the so-called "construction zone" (the position of, for example, Larry Solum, Randy Barnett, Jack Balkin and Keith Whittington); (b) one might say that judges therefore lack authority to rule, and so the decision is left to the political branches to decide politically (the position of, for example, John McGinnis and Richard Kay); or (c) one might say that the interpreter must nonetheless make the best assessment under the circumstances of the originalist rule, even if subject to some doubt (I think this is Mike Rappaport's position).  But in any event it's just not true that originalism assumes near-complete determinacy.

Originalism does claim that it is more determinate than competing theories of interpretation.  And as a practical matter, to be relevant, originalism must claim that it is determinate in at least some non-trivial number of contested cases.  But I think these are pretty easy claims to make.

05/20/2019

Unifying Original Intent and Original Public Meaning
Mike Rappaport

John McGinnis and I have just published a new article on Original Methods Originalism, the interpretive theory that we have developed. In this post, I wanted to describe the first part of the article. In a second post, John will describe the latter part of our piece.

One of the significant challenges for originalism is that it has a division between two interpretive approaches. The two leading approaches are original public meaning (which is a kind of textualism) and original intent (which is a form of intentionalism). Despite years of debate, this disagreement has not gone away.

In the article, we argue that original methods originalism can unify these two interpretive approaches. And therefore, originalists of both approaches—if they apply them correctly—should apply the same interpretive principles.

The Argument for Applying the Original Interpretive Rules

Original methods originalism holds that the Constitution should be interpreted using the same interpretive rules that people at the time would have deemed applicable to the document. Applying those same interpretive rules is the best way of capturing the document’s original meaning. Thus, if the Framers’ generation would have applied certain interpretive rules to the Constitution, so should we.

But following the original interpretive rules also makes sense for the original public meaning and original intent approaches. Under original public meaning, one follows the meaning that a reasonable and knowledgeable person at the time would have employed. A reasonable and knowledgeable person would certainly have applied the interpretive rules that would have been deemed applicable to the document at that time.

While it is less obvious, under the original intent approach one should also follow the interpretive rules that would have been deemed applicable to the document. It is often thought that the original intent approach requires one to follow the meaning that the authors of the document intended the terms to have, not the meaning that would result from applying the interpretive rules at the time. But this is mistaken.

If one asked the authors of the Constitution (or its readers) at the time how to determine the meaning of the document, they would not have answered, look at our intent as to the meaning of the terms. Instead, people at the time would have argued that interpreters should apply the conventional interpretive rules that would have been applied to the document. (John’s post will provide significant evidence for this claim from the debate on the First Bank of the United States.)

There are important reasons why people at the time would not have focused upon the meaning the authors intended as to the provisions of the document. One significant challenge to this practice flows from the difficulty of aggregating differing intents. What does an interpreter do if person A intended one meaning, person B intended a second meaning, and person C intended a third meaning? Applying the conventional interpretive rules avoids this problem. One simply applies those rules, which do not require aggregating intents. Thus, both the original intent and the original public meaning approaches end up applying the same interpretive rules—the ones that would have been deemed applicable to the Constitution at the time.

Determining the Original Interpretive Rules

Another issue the article addresses is how to determine what interpretive rules would have been applied when there was uncertainty or disagreement about the matter. We argue that one should resolve that uncertainty the same way that people at the time would have done so. Significantly, we maintain that people at the time would have employed the common law method to resolve such disagreements and therefore modern interpreters should apply that same method.

Explaining our argument that interpreters at the time would have employed the common law method to resolve disagreements requires a bit of history. During the first three quarters of the 18th century, the principal written laws that governed England and the American Colonies were statutes. In deciding how to interpret those statutes, judges and other interpreters would look to the common law to determine what the statutory interpretive rules were.

When the U.S. declared independence, the new independent states wrote constitutions. Those constitutions needed to be interpreted and in the main the statutory interpretive rules of the common law were applied to them. Constitutions were thus seen as a form of superstatute. Of course, the state constitutions were “statutes” of a certain sort. To the extent that they were less detailed than statutory codes, they would be interpreted using interpretive rules that made sense for shorter, less detailed statutes. Chief Justice Marshall referenced this move in his famous “it is a constitution we are interpreting” line in McCulloch. Significantly, Marshall’s interpretive rule was not a rule that was alien to statutory interpretation. Rather, it was the application of a statutory interpretive rule to a certain type of (superstatutory) enactment.

Thus, when the federal constitution was written, eleven years after Independence, a body of interpretive rules (from statutes and state constitutions) were on hand that were applicable to it. Those were the interpretive rules that should be applied to the Constitution.

It is possible that the interpretive rules that applied to the federal constitution differed in minor ways from the statutory or state constitutional rules. To the extent that the federal constitution was significantly different than statutes or state constitutions, there would be an argument, under the common law method, for treating it differently.

Under the common law, a new type of document, such as a federal constitution, that resembled existing documents would be interpreted by using the existing interpretive rules. If the new document differed from the existing one in a significant way, then the common law might apply a different interpretive rule to it. In the case of the federal constitution, we have not uncovered any important interpretive rules that applied only to the federal constitution (except in the limited sense, as noted above in the McCulloch example, that some interpreters treated the federal constitution as a statute of a particular type).

There is much more to this new article. But the basic point is that the legal interpretive rules are key to discovering the Constitution’s original meaning, under both the original public meaning and the original intent approaches. And those legal interpretive rules are the traditional ones that applied to statutes and state constitutions prior to the enactment of the U.S. Constitution.

Call for Papers: Eleventh Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference in San Diego
Michael Ramsey

The following is posted on behalf of the University of San Diego School of Law Center for the Study of Constitutional Originalism, the Center's Director Mike Rappaport, and the other faculty members of the Center.

On February 21-22, 2020, the Center for the Study of Constitutional Originalism at the University of San Diego School of Law will hold the Eleventh Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.

This past February, the Center held the Tenth Annual Originalism Works-in-Progress Conference in San Diego.  For information on the Tenth Conference see here.  For a videotape of the proceedings, see our Youtube Channel here.  For information and videotapes of the other nine conferences, see here or here.

We invite submissions of works in progress for the Eleventh Conference.  A work in progress is a draft paper in article or book chapter form that is not yet published as of the conference date.  An originalism paper is defined broadly to be any paper that argues for or against originalism as a matter of theory, or applies originalism to some aspect of the Constitution.

Submissions should take the form of a one to three page abstract (and, optionally, an initial draft).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Submissions can be sent to us now, if possible, but in any event by the end of August.  We will ask that the selected papers be circulated to conference participants in late January 2020.  The Center will cover travel expenses, lodging, and meals for paper authors and commentators.  The Call for Papers page is here.

In addition to paper authors and commentators, we would like to invite all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  The Center would be happy to pay for the principal meals for those attending the entire conference but not giving a paper or serving as a commentator.

05/19/2019

The D.C. Circuit on Sentencing for Acquitted Conduct
Michael Ramsey

In United States v. Bagcho, decided last week, the D.C. Circuit (following circuit precedent) upheld a sentence imposed in part based on conduct for which the defendant had been acquitted.  As the majority (per Judge Rogers)  explained: 

Bagcho contends that the district court violated his Fifth and Sixth Amendments rights under the Constitution by calculating his sentence based on uncharged and acquitted conduct. But he acknowledges that in United States v. Bell, 795 F.3d 88, 103 (D.C. Cir. 2015), the court held a sentencing judge may consider uncharged or acquitted conduct proved by a preponderance of the evidence provided the sentence does not exceed the statutory maximum or increase the statutory mandatory minimum.  He “maintains that Bell and similar cases are inconsistent with the Fifth and Sixth Amendments, and he seeks to preserve his claim for future review.” The concurrent sentences of 300 months did not exceed the statutory maximum of life imprisonment for Counts I and II, nor was the statutory mandatory minimum increased by consideration of the uncharged or acquitted conduct. Consequently, the court must affirm the district court’s consideration of uncharged and acquitted conduct in calculating Bagcho’s sentence.

Apparently every other circuit to consider the issue agrees.  But Judge Millett, concurring,  objected:

I write separately to express my continued opposition to the use of conduct for which a defendant was acquitted to increase the length of that person’s sentence. It stands our criminal justice system on its head to hold that even a single extra day of imprisonment can be imposed for a crime that the jury says the defendant did not commit.

And as she points out, another judge who has a problem with the practice is now-Justice Kavanaugh.  From his dissent from denial of rehearing in the Bell case: 

Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20–year sentence?

It seems like a fair question.  I have no idea what the originalist answer would be, but it also seems like an interesting issue to investigate.  And it illustrates that originalism often does not have an obvious political valence.  The outcome could go either way, depending on what the history shows.

(Via How Appealing).

05/18/2019

Rob Natelson on Treaty Originalism
Michael Ramsey

At the Daily Caller, Rob Natelson (Independence Institute): The Supreme Court Just Applied Originalism to an 1855 Treaty, So Why Not to the Constitution? From the introduction: 

[Critics of originalism] claim that “originalism” — applying the Constitution as the Founders understood it — is unrealistic or extreme. Some even claim originalism is a new invention, dating only from the Reagan years.

But applying legal documents as their makers intended is the way courts and lawyers interpret most documents, and have done so since the days of the Roman Empire.

Illustrative is last month’s Supreme Court ruling in Washington State Department of Licensing v. Cougar Den.

As the post explains, the case turned on the meaning of an 1855 treaty with the Yakima Tribe, which the Court interpreted according to the meaning it had in 1855.  In conclusion:  "The case illustrates how judges apply originalism for almost all legal documents — except the Constitution."

I agree.  Originalism (though not by that name) is the presumptive approach to legal interpretation, other than for the Constitution: contracts, statutes. treaties, etc.  It's true that there are competing theories, but these are largely academic curiosities.  It's true there are exceptions, but these are recognized as exceptions to the usual approach.  It's also true that interpretive methods for these sources of law are often debated -- but the debates are typically between different varieties of originalism (again, not by that name).

The Constitution is treated differently.  Originalism is not the presumptive approach.  Why should that be so?  There may be arguments why the Constitution is different, but the burden, it seems, should be on those who would treat it differently to show why it is different.

05/17/2019

John Vlahoplus: Evaluating Originalism
Michael Ramsey

John Vlahoplus (Independent) has posted Evaluating Originalism: Commerce and Emoluments (St. John's Law Review (2019), forthcoming) (79 pages) on SSRN.  Here is the abstract: 

The debates among originalists and between them and their critics have continued unabated since Paul Brest, H. Jefferson Powell and others rebutted original intent originalism in the nineteen eighties. Scholars on both sides claim victory while others argue that the contestants actually agree on fundamental issues and merely talk past each other. This article suggests that the contest is real and appears in centuries of debates within Anglo-American and civil law. The article locates the Anglo-American origins of originalism in a novel seventeenth century method of legal interpretation used to achieve a specific political end — to stifle opposition to the union of Scottish and English subjects of King James after his accession to the English crown in 1603. The novel method followed Emperor Justinian's earlier attempt to forbid interpretation of the Corpus Juris Civilis because he considered interpretation to be a perversion of written law that generates confusion and discord.

The article then evaluates notable originalist interpretations of the Constitution's Commerce and Emoluments Clauses in light of the novel and traditional English interpretive methods. It identifies founding-era public understandings of terms in the Commerce Clause that reach commercial activities like insurance, agriculture and manufacturing and that encompass both prohibiting and commanding individuals' activities. In addition, it identifies founding-era public understandings of terms in the Emoluments Clauses that reach elected representatives who benefit from honest business transactions with governments. Anglo-American legal history proximate to the adoption of the Constitution supports a broad interpretation that prohibits elected officials from receiving those benefits in order to secure their independence, prevent conflicts of interest, and ensure the survival of representative government. The originalist interpretations of the Commerce and Emoluments Clauses ultimately rely on normative judgments, not historical facts.

American originalism first asked what the Constitution's founders, drafters or ratifiers intended. In the face of criticism it evolved to ask how the American public understood the Constitution's words. In the face of yet further criticism it is evolving to ask what we should make of the Constitution by applying original methods of legal analysis to constitutional text and history. Whether that iteration will be any more successful than its predecessors remains to be seen. If it is not, then another will likely take its place because originalism is ultimately a normative aspiration embraced by many who hope, like a commentator in 1535, that what Emperor Justinian failed to achieve in his era will yet come to pass.

05/16/2019

Is the Hyatt Decision Bad Originalism?
Michael Ramsey

Earlier this week the Supreme Court ruled, in Franchise Tax Board v. Hyatt, that as a constitutional matter states have sovereign immunity in the courts of other states.  Justice Thomas wrote the majority opinion (joined by Roberts, Alito, Gorsuch and Kavanaugh), relying on originalist arguments.

The decision has been widely criticized on originalist/textualist grounds -- for example, Stephen Sachs at Volokh Conspiracy, Hyatt, the Constitution, and the Common Law; Richard Re at SCOTUSBlog, Hyatt fulfills expectations in a surprising way; and Howard Wasserman at PrawfsBlawg, SCOTUS overrules more precedent, no textual support to be found.  Professor Sachs says: 

My worry is that a decision like this one, which attributes implicit rules to the Constitution that no one at the Founding seems to have found there, does more to bring careful methodology into disrepute than a variety of less serious errors that courts might make.

I would like to be contrarian and defend the Court's reasoning but ... I can't.  As others have written (so I will only summarize) the opinion seems problematic on two grounds.

First, it lacks a textual foundation.  Many people (including Professor Wasserman) say the same about the Court's state sovereign immunity jurisprudence more broadly, but that isn't so.  State sovereign immunity in federal court rests on a narrow reading of the federal courts' "judicial Power" vested by Article III, Section 1.  And even Alden v. Maine (state sovereign immunity for federal claims in state court), the textually most dubious of the lot, rests on a narrow reading of the necessary and proper clause.  True, in these cases structural intuitions and historical background do all the interpretive work, but ultimate the work they do is to reach a narrow reading of text.  In Hyatt there is truly no text. Of course (as argued many times on this blog) originalism is not necessarily textualism.  But if originalism isn't based on text, it has to be based on something else from the founding era, like commentary from the founders.  Otherwise it is not really originalism; it's just the judges' structural intuitions.

Second, Hyatt overrules a prior case, Nevada v. Hall.  Originalism lacks a theory of stare decisis (or rather, it has many inconsistent theories).  But whatever the correct full theory, at minimum it seems that a prior decision should not be overruled unless there are good reasons to believe it is wrong on originalist grounds.  Even if there are some reasons to think the Hyatt outcome might be right on originalist grounds, they do not seem clear enough to meet such a higher standard.  In particular, the lack of a textual foundation is problematic -- even if one thinks a textual foundation is not always required -- in such a situation.

A few further thoughts: 

(1) I don't see the opinion (as some critics have) as evidence that supposedly originalist Justices will do anything to reach a favored result.  Rather, I think the problem is that the Justices did not recognize how this case is different from other state sovereign immunity cases.  They thought (a) state sovereign immunity is a constitutional principle, as established in many prior cases; (b) Nevada v. Hall is a weird exception to that principle; (c) the Hall exception is especially odd because states actually would be better off in federal court (where they have constitutional sovereign immunity) than in the courts of another state; so (d) Nevada v. Hall is wrong.  But unlike the other  sovereign immunity cases, Hyatt is not about limiting the federal government's intrusions on the states. Rather, it is actually a limitation on states -- a limitation on the power of state courts to hear cases against other states. So the question in Hyatt is not whether the Constitution granted a federal power that did not previously exist (as it is in all other sovereign immunity cases).  The question is whether the Constitution limited a state power that did previously exist.  (True, it wasn't a power recognized by international law or common law, but it was a power that could be claimed by state statute.)  There are substantial reasons to distinguish between the two.  It is much more likely (in the absence of constitutional text to the contrary) that the Constitution left state powers as they were.

(2)  Co-blogger Andrew Hyman, who is more sympathetic to Hyatt than I am, notes that Rehnquist, dissenting in Nevada v. Hall argued:

the States that ratified the Eleventh Amendment thought that they were putting an end to the possibility of individual States as unconsenting defendants in foreign jurisdictions, for...they would have otherwise perversely foreclosed the neutral federal forums....

He (Andrew) adds:

Indeed, rendering the 11th Amendment absurd seems like a very good reason to disagree with the opinion that the Court overturned this week.  I was kind of surprised that the Court this week didn’t mention this implication that’s located in the text of the 11th Amendment.

I agree this is a better textual argument than the Hyatt majority's.  But I am not persuaded.  States may well have thought that judgments from the new federal courts were more of a threat than judgments from the courts of other states (which would be less likely -- being subject to retaliation -- and much harder to enforce).

(3) Among other things, the Hyatt majority argues: 

In short, at the time of the founding, it was well settled that States were immune under both the common law and
the law of nations. The Constitution’s use of the term “States” reflects both of these kinds of traditional immunity. And the States retained these aspects of sovereignty, “except as altered by the plan of the Convention or certain constitutional Amendments.” Alden, 527 U. S., at 713.

The idea that the Constitution's term "States" implies certain constitutional sovereign rights of the states is, I believe, originally the suggestion of my colleague and co-blogger Mike Rappaport, in an article from long ago (not cited by the Court).  I agree with his basic proposition but I don't think it works here.  The conclusion, I think, should be that the Constitution left state sovereignty as it was before the Constitution (except where the text altered it).  Indeed, this seems to be what the majority is saying in the quoted passage.  But if state sovereignty stayed the same as it had been before the Constitution, that means that state sovereign immunity in the courts of other states stayed as it had been: a matter of common law.  And that conclusion points against, rather than supporting, the outcome in Hyatt.

05/15/2019

Bill Treanor: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution
Michael Ramsey

Bill Treanor (Georgetown U. Law Center) has posted Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution (118 pages) on SSRN.  Here is the abstract:

At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee on Style and Arrangement to bring together the textual provisions that the convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris was assigned to draft the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the Committee’s proposed constitution. For more than two hundred years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have concluded that Morris was an honest scrivener. No prior article, however, has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This article reveals how many changes Morris made to the text delegates had previously agreed to and how important those changes were (and are). It shows that many of the central elements of the Constitution (including the Preamble; the basic Article I, Article II, and Article III structure; and the contract clause) were wholly or largely the product of the Committee’s work. In total, Morris made twelve significant changes to the Constitution, and these textual changes advanced his constitutional goals, including strengthening the national government, the executive, and the judiciary; protecting private property; and fighting the spread of slavery. Finally, it shows that, in central debates in the early republic, Federalists, and, notably, fellow committee member Alexander Hamilton repeatedly drew on language crafted by the Committee as they fought for their expansive vision of the Constitution. In revising the constitutional text, Morris created the basis for what was to become the Hamiltonian reading of the Constitution.

This history has significant implications for modern constitutional law. While the Supreme Court has never been presented with a case that reveals the extent of the Committee’s changes, in four cases it has confronted situations in which the Committee’s text arguably had a different meaning than the provision previously adopted by the convention, and the Court has consistently treated the Committee’s work as substantively meaningless and concluded that the prior resolutions were controlling. That approach should be rejected because it is at odds with the majoritarian premise of constitutional ratification by “the people.” The text that was ratified is controlling. At the same time, in most circumstances, Morris’s language was ambiguous. A modern public meaning originalist approach leads to the conclusion that Morris’s revisions made possible alternate readings of the Constitution: it supported what was to become the Federalist approach, but did not prevent Republican textualist readings. On important contemporary issues, focus on Morris’s text makes us aware of originalist understandings of the text that have been frequently dismissed or wholly forgotten; although it does not eliminate the originalist basis for narrower readings, that focus provides new originalist support for broad understandings of congressional, judicial, and presidential power and for protection of private property.

An earlier draft of this outstanding paper was presented at the Originalism Works-in-Progress Conference in February.  Despite (or perhaps because of) the length, it's a fascinating read. 

05/14/2019

Divesting the President of Power to Prosecute
Andrew Hyman

In February of last year, Mike Ramsey commented negatively here about the following theory of Professors Rebecca Roiphe and Bruce Green:
 
[T]he Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.
 
I agree with Mike that past practice by presidents “does not create an obligation."  There have been some developments in this area since Mike’s blog post.  For one thing, Professors Green and Roiphe have written a followup article titled May Federal Prosecutors Take Direction from the President?,” 87 Fordham L. Rev. 1817 (2019).  For another thing, it appears that then-White House Counsel Donald McGahn adopted the view of Professors Green and Roiphe, “saying that he [POTUS] had no authority to order a prosecution" (more about this below).
 
As far as I know, the leading article that takes the position opposite of Green and Roiphe (and which they cite) is Saikrishna Prakash, The Chief Prosecutor,” 73 Geo. Wash. L. Rev. 521 (2005).  Professor Prakash wrote:
 
Presidents Washington, Adams, and Jefferson believed that they had constitutional authority to direct federal district attorneys. In fact, each directed district attorneys to begin and cease prosecutions in . . . cases suffused with foreign affairs implications, cases involving the domestic political opposition, and even cases concerning the nation’s territorial integrity.
 
Supposing that the White House Counsel did in fact adopt the Roiphe-Green position and reject the Prakash position, that seems like it would be very big legal news.  However, given the rocky tenure of that particular White House Counsel, it is difficult to know whether the reports are accurate, and if so how much weight to give them.
 
If, as Prakash says, the President is chief prosecutor, that does not mean his subordinates in the Justice Department cannot threaten to resign rather than comply, nor does it mean that Congress cannot impeach a president for ordering wacky prosecutions that fail to result in convictions.  The honorable course would be to let the President know what his powers are, and what dangers await from exercising those powers, and if the President plunges ahead then he would likely be denied reelection, or be impeached.  Trying to save the country or protect the President by secretly disobeying lawful orders or by misleading the President would not seem like the optimal approach for a subordinate in the executive branch, though the Mueller Report and news reports suggest that, “Trump's aides were attempting to protect the president by not carrying out his requests.”  That is eerily reminiscent of an anonymous opinion piece in the New York Times (NYT) on September 5, 2018 (I blogged about it elsewhere).
 
For those who want more details about what exactly White House Counsel McGahn told President Trump about his prosecutorial power, I’ll now add a few more details.  The NYT had two distinct articles about this episode.*  Both articles include this identical material:
 
The lawyer, Donald F. McGahn II, rebuffed the president, saying that he had no authority to order a prosecution….He did have the authority to ask the Justice Department to investigate, Mr. McGahn said, but warned that making such a request could create a series of problems.
 
To me, this seems unambiguous that Trump was told he had power to order investigations but not prosecutions.  The NYT also says that McGahn prepared a Memorandum on this subject for the President, but I am not aware it has been made public.
 
*There was the NYT article titled Trump Wanted to Order Justice Dept. to Prosecute Comey and Clinton” (November 20, 2018).  At the bottom of that Nov. 20 article is a note: “A version of this article appears in print on Nov. 21, 2018, on Page A1 of the New York edition with the headline: "Trump Sought To Have Foes Face Charges.”  As far as I can tell, the NYT stands by both versions in their entirety.
 
MICHAEL RAMSEY ADDS: I agree with Professor Prakash on this point and I don't have any doubt that the President can direct federal prosecutors to bring a prosecution (just as he can direct them to halt a prosecution).  There's absolutely nothing in the Constitution suggesting otherwise, and indeed it seems a central point of the take care clause that the President not only has this power but is obliged to use it (consistent with his duty of "faithful" execution).  The presumptive operational independence of federal prosecutors may be a good idea, but it isn't a constitutional obligation.
 
I'm a little less sure than Andrew that White House Counsel McGahn advised otherwise.  The linked Times article has the categorical statement Andrew quotes.  It also has the following longer discussion:

Mr. McGahn promised to write a memo outlining the president’s authorities. In the days that followed, lawyers in the White House Counsel’s Office wrote a several-page document in which they strongly cautioned Mr. Trump against asking the Justice Department to investigate anyone.

The lawyers laid out a series of consequences. For starters, Justice Department lawyers could refuse to follow Mr. Trump’s orders even before an investigation began, setting off another political firestorm.

If charges were brought, judges could dismiss them. And Congress, they added, could investigate the president’s role in a prosecution and begin impeachment proceedings.

Ultimately, the lawyers warned, Mr. Trump could be voted out of office if voters believed he had abused his power.

All of these points are true.  But they do not say that the President lacks the power to order investigations or prosecutions.  They only say it would be a bad idea politically and institutionally to use it.  (I assume the memo also detailed the history of presumptive independence of the prosecutors; it's less clear whether the memo concluded that this history established a constitutional obligation.)  In any case, I don't see anything nefarious (from a constitutional perspective) in these events.

05/13/2019

David Schwartz on Eric Lomazoff on the National Bank Controversy
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted Coin, Currency, and Constitution: Reconsidering the National Bank Precedent, 117 Mich. L. Rev. (2019, forthcoming) (24 pages) on SSRN.  Here is the abstract:

The constitutional debates surrounding the First and Second Banks of the United States generated the first major precedents regarding the scope of federal legislative powers, and their importance continues to resonate today. Eric Lomazoff's important new book, Reconstructing the National Bank Controversy, is the first scholarly study that views the National Bank controversy as a continuous 55-year sequence of events, whose highlights include the adoption of Alexander Hamilton's proposed Bank of the United States in 1791, John Marshall's decision in McCulloch v. Maryland in 1819, and Andrew Jackson's veto of the Second Bank recharter in 1832. Lomazoff persuasively establishes that a Madisonian consensus supporting the creation of the Second Bank in 1816 " largely overlooked by constitutional scholars " was framed in a way that tried, albeit unsuccessfully, to downplay the Necessary and Proper Clause and the idea of implied powers by emphasizing the existence of a federal power to regulate the national currency, linked to the Coinage Clause. The book review goes on to argue that the National Bank controversy demonstrates that many antebellum partisans of limited enumerated powers -- mainstream Jeffersonian Republicans, Jacksonian Democrats, and even James Madison himself -- were quite happy to work around enumerated powers in order to meet the political demands and objectives of the moment. This lends support to the suggestion that enumerationism (the ideology of limited enumerated powers) was never, in practice, the "true" original meaning of the Constitution.

With all respect to the author, the last sentence of the abstract seems a non sequitur.

Here is the Amazon page for Eric Lomazoff's book Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic (University of Chicago Press 2018).  And here is the book description:

The Bank of the United States sparked several rounds of intense debate over the meaning of the Constitution’s Necessary and Proper Clause, which authorizes the federal government to make laws that are “necessary” for exercising its other powers. Our standard account of the national bank controversy, however, is incomplete. The controversy was much more dynamic than a two-sided debate over a single constitutional provision and was shaped as much by politics as by law.

With Reconstructing the National Bank Controversy, Eric Lomazoff offers a far more robust account of the constitutional politics of national banking between 1791 and 1832. During that time, three forces—changes within the Bank itself, growing tension over federal power within the Republican coalition, and the endurance of monetary turmoil beyond the War of 1812 —drove the development of our first major debate over the scope of federal power at least as much as the formal dimensions of the Constitution or the absence of a shared legal definition for the word “necessary.” These three forces—sometimes alone, sometimes in combination—repeatedly reshaped the terms on which the Bank’s constitutionality was contested. Lomazoff documents how these three dimensions of the polity changed over time and traces the manner in which they periodically led federal officials to adjust their claims about the Bank’s constitutionality. This includes the emergence of the Coinage Clause—which gives Congress power to “coin money, regulate the value thereof”—as a novel justification for the institution. He concludes the book by explaining why a more robust account of the national bank controversy can help us understand the constitutional basis for modern American monetary politics.

05/12/2019

More from Eric Segall on Originalism and Free Speech
Michael Ramsey

At Dorf on Law, Eric Segall:  "Free Speech, Free Press. Free Society?" Toward the end of the post, Professor Segall continues his theme of the tension between originalism and a broad view of free speech protections: 

Here is something else that is true. You can either believe in strong and robust judicially created free speech doctrines, or you can believe in originalism, but you cannot believe in both, at least honestly and consistently. That reality raises interesting questions about the role of free speech in our country.

We can all agree that the founding fathers believed that political speech was very important.  They may even have believed that artistic expression was very important.  But in both circumstances, their major complaint was with prior restraints--requiring government permission before speaking or writing, not with after-the-fact punishments for that speech.

According to a detailed and persuasive article in the Yale Law Journal by Professor Jud Campbell, which I discussed previously on this Blog, the founding generation thought freedom of speech was a natural right. But they also thought that the right only extended as far as the public good required. And, here’s the catch.  They also believed that the people, or legislatures, would balance free speech principles against the harms caused by speech.

...

Here are just a few issues where a sincere originalist would likely have to defer to state and federal laws.  Most of the court’s defamation doctrine would have to be reversed.  Students in schools would have virtually no first amendment rights (a position for which Justice Thomas has already advocated). The Court’s entire commercial speech doctrine would likely have to be reversed.  As late as the 1970s, the Court did not protect commercial speech at all. And the idea that baking a cake or making a floral arrangement would be protected by courts as free speech in the face of non-discrimination laws is absurd under any reasonable definition of originalism.

The bottom line is that you can be an originalist or you can be a strong advocate for strong judicial protection of free speech, but you can’t be both. But that problem will not stop the Justices on the current Court from protecting speech in ways that would not be tolerated in most of the world’s democracies, for better or for worse.

05/11/2019

John McGinnis: The Crisis of Left Jurisprudence (with my comments)
Michael Ramsey

At Law and Liberty, John McGinnis: The Crisis of Left Jurisprudence.  From the introduction:

The rise of originalism is the most important development in constitutional jurisprudence in the last half century. As a sociological matter, its rise has been almost wholly associated with the Right, including both conservatives and libertarians. But it is also the source of a crisis for the Left, which needs its own compelling theory as a counterweight. To date, the Left has not found any unifying answer, because they found it is difficult to craft a theory that both respects democracy and yet protects many decisions that the Left holds dear, most importantly Roe v. Wade. To be sure, critics of originalism on the Left abound. But to criticize is to play defense. Battles are almost always won on offense.

The post then reviews several alternatives -- democratic reinforcement (John Ely's theory); the court as an expression of popular will (Barry Friedman's theory); social movements; precedent; deference to legislative majorities -- and finds them unsatisfactory.  It continues:

Perhaps the most promising development in Left jurisprudence is the appearance of a left-leaning originalism. The most important theorist in this area is Jack Balkin, who has developed a theory of “framework originalism.” This theory, briefly stated, argues that the Constitution should be interpreted according to its original meaning but many, if not most, of the Constitution’s clauses do not have a very determinate meaning and judges should be able to fill in their interstices. The Left thus has space to pour progressivism into these empty vessels.

Unorthodox originalism may well be a contender for the Left’s best counter to originalism. But it faces both analytical and political obstacles. First, as Mike Rappaport and I have shown, increasingly originalist research discovers quite precise meanings to the kind of clauses that Balkin finds indefinite. Not surprisingly, the meanings do not tend to align with the social democracy or democratic socialism of the modern Democratic Party. Second, it is not clear that Balkin answers the democracy objection unless the Constitution delegates discretion to the judiciary. The duty to say what the law is implicitly assumed that judges were to apply the law, not choose it. And finally, for the truly woke, any reference to originalism is deeply offensive, as the Constitution is in the main the product of white males, some of whom owned slaves.

And in conclusion:

It is not clear what it will take for the Left to come up with compelling response to originalism. On the one hand, progressivism wants to embody the people’s will. On the other hand, some of the left’s favorite decisions don’t emerge either from the text that the people ratified or even from today’s democratic mechanisms. It is too soon to say that contemporary left jurisprudence is trying to square the circle, but the absence of a compelling and consensus alternative to originalism is especially striking—particularly given the dominance of the Left among constitutional theorists.

I think this is all right as far as it goes, but it does not contend with what I would identify as the leading constitutional theory on the center-left.  That is what might be called interpretive pluralism (or, in a related form, constitutional common law).  The idea is that there are a range of factors to be considered in finding modern constitutional meaning, including text and original meaning, but also precedent, practice, contemporary understanding, democratic values, moral values, pragmatic implications, and perhaps others.  The approach goes back to Philip Bobbitt's description of multiple interpretive "modalities" in constitutional interpretation.  In modern scholarship I associate it with Mitch Berman, Richard Fallon, David Strauss, and numerous others.

Interpretive pluralism has the advantage of being a fair descriptive account of what the modern Supreme Court actually does.  It also has the advantage (to the interpreter) that, because it admits such a range of divergent factors, it can usually reach the conclusion the interpreter favors for policy reasons.  (That's especially so because in most forms it acknowledges policy considerations as part of its analysis).

Interpretive pluralism is the reason that center-left commentators and judges can make originalist arguments without being hypocritical.  If originalist arguments lead to favored conclusions, the theory makes them available.  But using originalist arguments to resolve one issue doesn't require the pluralist interpreter to use them for the next issue, where their result might be less welcome.  Instead, another "modality' can be invoked.  That's the attraction of the theory.

But that's also the weakness of the theory.  It's not clear that  interpretive pluralism actually differs much from interpreters simply reaching their preferred policy outcomes and then reasoning backward.  (I'm not suggesting this is done in bad faith -- just that there is a very strong inclination, in picking among a range of factors, to pick the ones pointing to the "right" outcome).  That's why interpretive pluralism works better as a descriptive theory than as a prescriptive one.

In the end, in assessing interpretive pluralism, the central question is probably the extent to which it does actually constrain interpreters.  Its defenders would likely say it constrains to a significant extent -- not entirely, because part of its attraction is that it allows interpreters to consider policy implications.  But enough so that it differs (in a positive way, on stability and rule of law grounds) from simply casting judges as policymakers.  (For what it's worth, I'm skeptical of its ability to constrain, so I think it must be justified, if at all, as a mode of judicial policymaking).  But in any event it seems to be an important part of the alternatives-to-originalism debate.

Mike Rappaport adds: 

I argue that interpretive pluralism does not constrain in these two posts from a couple of years ago: 

Is Libertarianism the Law?: Part I The Modalities of the Law

Is Libertarianism the Law?: Part II Using the Modalities to Support Libertarian Results

05/10/2019

New Book: Myron Magnet on Clarence Thomas
Michael Ramsey

Recently published: Clarence Thomas and the Lost Constitution, by Myron Magnet (Encounter Books 2019).  Here is the book description from Amazon:

When Clarence Thomas joined the Supreme Court in 1991, he found with dismay that it was interpreting a very different Constitution from the one the framers had written―the one that had established a federal government manned by the people’s own elected representatives, charged with protecting citizens’ inborn rights while leaving them free to work out their individual happiness themselves, in their families, communities, and states. He found that his predecessors on the Court were complicit in the first step of this transformation, when in the 1870s they defanged the Civil War amendments intended to give full citizenship to his fellow black Americans. In the next generation, Woodrow Wilson, dismissing the framers and their work as obsolete, set out to replace laws made by the people’s representatives with rules made by highly educated, modern, supposedly nonpartisan “experts,” an idea Franklin Roosevelt supersized in the New Deal agencies that he acknowledged had no constitutional warrant. Then, under Chief Justice Earl Warren in the 1950s and 1960s, the Nine set about realizing Wilson’s dream of a Supreme Court sitting as a permanent constitutional convention, conjuring up laws out of smoke and mirrors and justifying them as expressions of the spirit of the age. 

But Thomas, who joined the Court after eight years running one of the myriad administrative agencies that the Great Society had piled on top of FDR’s batch, had deep misgivings about the new governmental order. He shared the framers’ vision of free, self-governing citizens forging their own fate. And from his own experience growing up in segregated Savannah, flirting with and rejecting black radicalism at college, and running an agency that supposedly advanced equality, he doubted that unelected experts and justices really did understand the moral arc of the universe better than the people themselves, or that the rules and rulings they issued made lives better rather than worse. So in the hundreds of opinions he has written in more than a quarter century on the Court―the most important of them explained in these pages in clear, non-lawyerly language―he has questioned the constitutional underpinnings of the new order and tried to restore the limited, self-governing original one, as more legitimate, more just, and more free than the one that grew up in its stead. The Court now seems set to move down the trail he blazed. 

A free, self-governing nation needs independent-minded, self-reliant citizens, and Thomas’s biography, vividly recounted here, produced just the kind of character that the founders assumed would always mark Americans. America’s future depends on the power of its culture and institutions to form ever more citizens of this stamp.

(The author is also author of The Founders at Home: The Building of America, 1735–1817, and is editor-at-large of the Manhattan Institute’s City Journal).

05/09/2019

Andy Grewal: The President's Tax Returns
Michael Ramsey

Andy Grewal (University of Iowa - College of Law) has posted The President's Tax Returns (39 pages) on SSRN.  Here is the abstract:

This Article examines whether congressional committees enjoy the unrestricted authority to demand a President’s tax returns. It concludes that they do not. Though a federal statute seemingly compels the IRS to furnish, on request, anyone’s tax returns to some congressional committees, a statute cannot transcend the constitutional limits on Congress’s investigative authority. Congress enjoys a near-automatic right to review a President’s tax returns only in the impeachment context.

After analyzing the general constitutional principles, the Article briefly examines the House Ways & Means Committee’s disputed request for President Trump’s tax return information. That controversy remains ongoing, and subsequent events may affect the legitimacy of any congressional request for that information. However, the Article expresses doubt that the Committee’s request satisfies the relevant constitutional standard. 

(Via Paul Caron at TaxProf Blog).

The article approaches the matter mostly from the perspective of caselaw.  But I think an originalist/textualist perspective suggests a similar conclusion.  The relevant statute, Section 6103(f)(1) of the tax code (providing that congressional committees may request the IRS to provide anyone’s tax return), must be supported by an enumerated power of Congress.  In some situations use of the statute clearly would be supported: as necessary, for example, to inform Congress's thinking about tax reform legislation or as part of an impeachment investigation.  But it does not seem that there is a constitutional power of Congress that would support the statute in all its applications.  As Professor Grewal says in the article (p. 17):

When Congress enacted the statutory predecessor to Section 6103(f)(1), some legislators believed that the Congress, as a co-equal branch, should enjoy the same unlimited access to tax returns that the executive branch does. They may have thus believed that Section 6103(f)(1) would give them unfettered access to tax return information. But that view would have rested on a fundamental misconception of the legislature’s role. Under the Constitution, the President must take care that the laws are faithfully executed. That responsibility ensures the President’s access to tax return information – he or she could not otherwise ensure the proper execution of the tax laws. Congress, by contrast, has no law execution responsibility or authority.  It thus has no claim to tax return information in the absence of a legitimate legislative purpose.

At minimum, the committee needs to explain how its request in this situation is based on Congress's enumerated powers -- particularly as it is not obvious which enumerated power supports it.

And I would add, as Professor Grewal does, that the issue goes well beyond this particular President's returns.  It's somewhat concerning from a privacy perspective that Congress would be able to demand (and disclose) the tax returns of private citizens -- a weapon that could be used to retaliate against people Congress sees as troublemakers.

05/08/2019

John Harrison: Public Rights, Private Privileges, and Article III
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted Public Rights, Private Privileges, and Article III (Georgia Law Review, forthcoming) (48 pages) on SSRN.  Here is the abstract:

This article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. As the Justices are aware, the public rights rationale originated in the 19th century, and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. In light of the Court’s evident interest in the 19th century system, this article explores that system in depth and seeks to identify the ways in which it authorizes and limits executive adjudication. The older system focused on public rights, private rights, and private privileges. The courts protected the private rights they found in the primary law, including federal statutes that created such rights. Private privileges, unlike private rights, could be affected by the unilateral exercise of a proprietary right of the government – that is, by the exercise of a public right. The interest in receiving a payment from the Treasury was a classic example of a private privilege, provided Congress had not given the private recipient a judicially enforceable claim to it. When the executive administered the government’s own legal interests according to the law, it often performed a function that resembled adjudication. That function was nevertheless an exercise of executive power, because executive officials act for the government as proprietor and contracting party. Executive adjudication thus was permissible under the older system when Congress created the relation of public right and private privilege. Whether Congress may do so depends, like other questions concerning congressional power, on the scope of Congress’s enumerated powers and the affirmative limitations on it. The article identifies the questions concerning congressional power that must be answered in order to decide when Congress may create the relations that underwrite executive adjudication under the older system, and shows that the scope for that form of decision making may be quite broad. One constitutional rule is notably absent from the list of constraints: the vesting of the judicial power in the courts by Article III. The constitutional function of the courts is to protect rights. Under the older system, whether a private person has a right with respect to any specific interest depends on the primary law, not Article III. The judicial power took public rights, private rights, and private privileges as it found them.

05/07/2019

Our Fiduciary President
Mike Rappaport

One important area of constitutional law involves the Take Care Clause of the Constitution. Unfortunately, there is a great deal of disagreement about the Clause’s meaning. Happily, at the Originalism Works in Progress Conference held at the University of San Diego School of Law last February, a new paper on the subject, "'Faithful Execution' and Article II" was presented. Written by Andrew Kent, Ethan Leib, and Jed Shugerman, the paper, which is being published in the Harvard Law Review, sheds new light on the Clause.

One important insight that the paper makes is to link the Take Care Clause and the Presidential Oath Clause. The paper argues that these two clauses should be understood as having similar objectives. Both clauses are designed to limit the misuse of executive power. They do so through alternative means—by an oath and by a legal obligation.

The paper also argues that the two clauses impose a common duty on the President to act as a fiduciary. This fiduciary duty includes the diligent and impartial execution of the law, a prohibition on the misappropriation of profits, and a prohibition on unauthorized or ultra vires actions. The paper roots these fiduciary duties largely in the history of oaths that have been applied to executive officials.

There is a reasonable textual basis both for the fiduciary obligation and for the connection between the two clauses. The Take Care Clause provides that the President “shall take Care that the Laws be faithfully executed.” The Presidential Oath Clause requires that the President swear or affirm that he “will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'' Both clauses require that the President faithfully execute something—either the laws or his office. This obligation of faithfulness is a very plausible vehicle for what we now see as fiduciary duties.

The paper spends considerable space discussing the long history of oaths of office. This history shows the importance of oaths historically. These oaths have been used for at least 700 years in England. The paper suggests that the Presidential Oath requirement was not some afterthought of the Framers, but one of the central ways they hoped to restrain improper government behavior.

While the paper enhances our understanding of the Take Care and Presidential Oath Clauses, I am not sure how helpful it is in resolving specific cases. I believe that the paper makes a strong case that Presidents cannot simply close their eyes to wrongdoing by people within the executive. They have an obligation to undertake reasonable efforts to prevent that wrongdoing. But I knew that before reading the paper, based on the text of the Take Care Clause. The paper confirms that conclusion, which is nice, but it does not really teach me anything new here.

A tougher issue for the paper involves the scope of the President’s fiduciary obligations. While the paper claims that the President must avoid conflicts of interest and misappropriation of profits, it does not really explain how far that extends. For example, what about a President who takes actions that are intended to benefit his political party in future elections?  For example, does it violate the oath for a President who wants his party to do well in Iowa to veto a law that would cut back on farm subsidies? The strong position that the paper takes on the President benefiting himself makes this a legitimate question.  Yet, holding such vetoes to be illegal seems problematic.  Thus, many questions remain as to the scope of the President's duties in this area.

Will Selinger on Keegan Callanan on Montesquieu
Michael Ramsey

At Law & Liberty, Will Salinger (University College London, History) reviews Keegan Callanan's book Montesquieu’s Liberalism and the Problem of Universal Politics (Cambridge University Press 2018): Correcting Our View of Montesquieu.  From the introduction:

Living as we do in a time of widespread uncertainty about the future of liberalism, we can easily forget how different the mood was a few short years ago. Instead of expressing anxiety about the survival of liberal democratic institutions in the United States and Western Europe, commentators during the 1990s and 2000s were debating how to spread such institutions across the globe. Within the field of political theory, a prevailing concern was that liberalism had been too successful. Intellectual movements such as communitarianism and civic republicanism flourished during this period with the aim of preserving virtue and community in the face of inevitable liberal hegemony.

This came to mind as I read Keegan Callanan’s very fine new book on the Baron de Montesquieu. One imagines that Montesquieu’s Liberalism and the Problem of Universal Politics was conceived in the era when liberalism seemed invincible, for its purpose is to chasten and moderate triumphalist liberals. The timing doesn’t seem great, but it would be a shame if this work were overlooked. Callanan’s is one of the most interesting accounts of Montesquieu’s thought to appear in recent years.

And in conclusion:

As I noted at the outset, this book was written not merely to offer a new interpretation of Montesquieu, but also to intervene in contemporary debates. By reconsidering Montesquieu, Callanan hoped to chasten the universalist aspirations of post-Cold War American liberalism. Today, as I said, there seems to be little need for that since the idea of spreading liberal democracy across the globe is decisively out of fashion. Meanwhile, the revolt against liberal social and political norms that Trump and his followers are waging in the name of cultural and national particularity has gone far beyond the imagination of any 1990s communitarian.

The question of why the post-Cold War liberal order has proven unsatisfactory to so many people is now the subject of countless books and articles. But if Callanan missed his opportunity to chasten American liberalism, he may still have the chance to educate American liberals—and anybody else interested in Montesquieu’s landmark contribution to Western political thought.

05/06/2019

Laurence H. Tribe & Joshua Matz
Michael Ramsey

Laurence H. Tribe (Harvard Law School) and Joshua Matz (Georgetown University Law Center) have posted To (Pretend To) Review Our Book (23 pages) (responding to Michael Stokes Paulsen's review of their book To End a Presidency) on SSRN.  Here is the abstract:

In the world according to Professor Michael Stokes Paulsen, impeachment turns out to be a remarkably simple subject. So simple, in fact, that it’s unclear why it would merit a book, let alone a spate of studies. Here’s the scoop: A few sources from the late 1780s decisively show that “the impeachment judgment is properly concerned... solely with the question whether the wrongs committed are themselves sufficiently serious wrongs as to warrant exercise of the impeachment power.” Nothing else can ever be relevant. If a legislator concludes that the President’s wrongs are “sufficiently serious,” he or she is obliged to vote for the President’s removal from office. And in assessing seriousness, legislators can look only to neutral factors derived from “original objective public meaning.” This approach shields us from “considerations of strategy, practicality, and partisan politics.” It also reveals that the impeachment power has been drastically under-utilized in American history: Andrew Johnson and Bill Clinton, and potentially James Buchanan and Woodrow Wilson (among quite a few others), should never have completed their terms in office. Only a partisan hack — with dodgy motives and even dodgier methods — could support any other view of impeachment.

That’s where we come in: we’re the hacks. Professor Paulsen is explicit on this point. In his telling, we engaged in a devious “partisan gerrymander,” deliberately reverse-engineering an impeachment standard to ensnare as many Republicans as possible while letting Democrats off the hook. We were able to do so, Paulsen adds, only because we didn’t stick to originalist methods. By falsely asserting that originalism doesn’t provide a clear and determinate framework for impeachment analysis, we invented judgment calls vulnerable to partisan manipulation. And then we engaged in precisely such skullduggery, making up new standards and invoking irrelevant considerations. But, alas, we did a bad job. Having written a whole book to oust President Donald J. Trump while saving Clinton’s legacy, we stumbled at the finish line — first by offering “contradictory warnings” about the strategic risks of impeachment, and then by failing to demand Trump’s removal.

Professor Paulsen blends accusations of willful bad faith with insinuations of scholarly and strategic incompetence. These aren’t minor charges. You might therefore expect that Paulsen would have engaged seriously with our arguments. If so, you’d be disappointed. As one of our colleagues candidly remarked, “It’s almost like he didn’t read the book.” In accusing us of a partisan gerrymander and methodological dishonesty, Paulsen repeatedly and egregiously mis-describes our thesis, reasoning, and conclusions. He then ignores entire sections of the book that refute core premises of his “naïve” view. Throughout, he rips text out of context to complain about contradiction. In short, he has reviewed a book that we didn’t (and wouldn’t) write. And he has accompanied that “review” with a supposedly originalist theory of impeachment that is neither originalist nor persuasive.

05/05/2019

Skylar Croy: Rethinking Critiques of 'New Originalism'
Michael Ramsey

Skylar Croy (University of Wisconsin - Madison, Law School, Students) has posted The Problem of Change: Rethinking Critiques of 'New Originalism' (Drake Law Review Discourse, March 2019) (18 pages) on SSRN.  Here is the abstract:

How do originalists deal with change? It turns out many minimize the issue. Those that have dealt with it have offered solutions that are, to be generous, not great.

Some originalists, often called "new originalists," acknowledge that the correct application of the original meaning is not always clear. These originalists then turn to non-originalist principles for an answer. Some originalist scholars, such as Professors John O. McGinnis and Michael B. Rappaport, have been highly critical of this aspect of new originalism.

This Comment argues new originalism is a necessary evil. First, it argues the methods originalists have proposed to deal with change are, essentially, all the same. This Comment then labels these methods "abstraction-based originalism" because they all require the interpreter to abstract something--such as a value from the Founding generation. This Comment argues the faults of living constitutionalism are present in both new and abstraction-based originalism, but new originalism is honest because it acknowledges the problem. This Comment also uses arguments made by textualists when discussing purposed-based statutory interpretation against abstraction-based originalism. This Comment concludes that originalist literature should be friendlier to new originalism and proposes one possible area of further study.

Via Larry Solum at Legal Theory Blog, who comments: 

Kudos to Croy, a student at Wisconsin, for this very ambitious piece.  Although I do not agree with the author's representations regarding the state of the literature and the role of "abstraction," I greatly admire this interesting and thoughtful article.

05/04/2019

Ethan Leib & James Brudney: The Belt-and-Suspenders Canon
Michael Ramsey

Ethan J. Leib (Fordham University School of Law) and James J. Brudney (Fordham University School of Law) have posted The Belt-and-Suspenders Canon (Iowa Law Review, Vol. 105, forthcoming 2020) (36 pages) on SSRN.  Here is the abstract:

This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully – rather than regrettably and lazily – think about employing “belt-and-suspenders” efforts in their drafting practices. We then analyze in depth courts’ disparate efforts to integrate a belt-and-suspenders canon into their thinking about anti-surplusage rules and other textual canons. By sketching a promising future for this new canon, we hope to draw judicial practice closer to legislative practice and to enhance the enterprise of statutory interpretation for textualists and intentionalists alike.

(Via Prawfsblawg.)

Seems relevant to textualist constitutional interpretation as well.  Although, as Asher Steinberg says in the comments at Prawfsblawg, it's not entirely clear that a new canon is needed, as opposed to just less reliance on the anti-surplusage canon.  Steinberg also adds:

I don't find the very brief discussion of why textualists should care for this canon at all convincing. It isn't at all clear that textualists should care much about the realities of the legislative process (see Manning's "Inside Congress's Mind" for textualist skepticism about the relevance of Gluck and Bressman's research about how Congress writes statutes to interpretation), inasmuch as public meaning isn't a function of little-known facts about that process. There's a sentence in here that alternatively claims that belt-and-suspenders readings are efforts to determine the communicative content of statutes. Are they? Suppose it were the case that English speakers generally assume non-redundancy in trying to understand others' speech and writing, and that they are largely unaware of the particular realities of the legislative process that cause Congress to depart from this norm of non-redundancy. Were that the case, I don't know what a belt-and-suspenders reading could be aiming at but congressional intentions that would be obscure to most readers.

True, but I think English speakers, although perhaps "generally assum[ing] non-redundancy in trying to understand others' speech and writing," also recognize the use of redundancy for emphasis and certainty in some circumstances.

05/03/2019

Why Madison's Phrase About Enlarging Federal Power Was Removed From the Ninth Amendment
Andrew Hyman

Thanks to Mike Rappaport for discussing the Ninth Amendment with me.  He quotes Madison’s draft of June 8, 1789:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution. [Emphasis added.]

Professor Rappaport says that, because the italicized language was ultimately removed, “it is hard to argue that the Ninth Amendment merely protects against the expansion of Congress’s powers.”  But it does not seem obvious to me that that phrase was removed because Congress was unconcerned about enlarging delegated power.  Rather, it  looks more like the language was tightened up, perhaps because the second phrase about enlargement of powers was deemed redundant, or instead because of a desire to merge the two phrases, which related respectively to disparagement of rights and outright surrender of rights.

Either way, the phrase was not removed because the framers were unconcerned about inadvertent enlargement of delegated power.  There is just too much evidence that they did want to prevent inadvertent enlargement of delegated power.   For example, as I already mentioned, Madison wrote to George Washington on December 5, 1789 (after Congress had already shortened Madison's draft)  that the Ninth Amendment would ensure that the enumerated powers “shall not be extended.”  Likewise, Hardin Burnley was present during the Virginia debate over ratifying the Ninth Amendment, and said that “by protecting the rights of the people & of the states, an improper extension of power will be prevented….”

But all of that is inside baseball compared to the final text of the Ninth Amendment.  That text plainly does not impede interpreting the enumeration of powers in a way that denies or disparages rights retained by the people.  Thus, the amendment does not establish that any unenumerated natural rights are exceptions to the enumerated powers.  The U.S. Supreme Court was correct to say in U.S. Public Workers v. Mitchell, 330 U.S. 75 (1947): "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

Of course, many of the rights safeguarded by the Ninth Amendment are natural rights outside the scope of enumerated powers.  For example, the secular right to wear a hat or to cremate the dead were understood as falling outside the federal powers listed in the unamended Constitution, and therefore the Ninth Amendment ensured they would remain so.  For this reason, I suspect Mike Rappaport and I don’t really disagree about very much here.   At least, there is considerable overlap between the so-called “federalism model” and “natural rights model” of the Ninth Amendment.

If a statute seems to violate unenumerated natural rights, then courts can adopt a clear statement rule, requiring Congress to be very explicit.  But I do not think the Ninth Amendment is needed for that.  On the other hand, if the Ninth Amendment is incorrectly interpreted as a fount of unenumerated exceptions to the enumerated powers, then courts would likely go well beyond a clear statement rule, and would simply decline to apply the statutes even if they are 100% clear.

Ed Whelan versus Michael Dorf on Title VII and Sexual Orientation Discrimination
Michael Ramsey

At Verdict, Michael Dorf:  SCOTUS LGBT Discrimination Case Will Test Conservative Commitment to Textualism.  From the introduction:

Last week, the Supreme Court agreed to review three lower court decisions posing the important question whether Title VII of the Civil Rights Act of 1964—which makes it unlawful for an employer or prospective employer “to discriminate against any individual . . . because of such individual’s . . . sex”—thereby forbids discrimination on the basis of sexual orientation and gender identity. There is little doubt that few if any of the members of the Congress that originally enacted the statutory language would have thought it had that effect.

However, as the late Justice Antonin Scalia wrote for the Court in a 1998 Title VII case that applied the statute’s sex discrimination prohibition to other circumstances that its drafters likely did not envision, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” And there are straightforward reasons to think that discrimination based on sexual orientation or gender identity is sex discrimination.

The pending Title VII cases thus pose a test for the Court’s conservative majority. At one point or another and to varying degrees, all of the Court’s conservatives have embraced some version of the so-called textualist approach to statutory interpretation epitomized by Justice Scalia’s observation in the 1998 case, Oncale v. Sundowner Offshore Services, Inc. If they keep faith with their textualist commitment, they will rule in favor of the plaintiffs.

And further:

The argument for the plaintiffs in the Title VII cases is very straightforward. As Chief Judge Robert Katzmann of the US Court of Appeals for the Second Circuit wrote for an en banc majority in one of the cases now before the Supreme Court:

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

Ed Whelan responds at NRO Bench Memos: No, Conservative Justices Should Not Rule for Plaintiffs in Title VII SOGI Cases.  From the introduction:

In another entry in the genre of liberals-tell-conservatives-what-conservative-principles-mean, law professor Michael C. Dorf argues in an op-ed that if the conservative justices “keep faith with their textualist commitment, they will rule in favor of the plaintiffs” in the cases to be argued next term that present the questions whether Title VII’s ban on employment practices that “discriminate … on the basis of … sex” prohibits discrimination on the basis of sexual orientation and discrimination on the basis of gender identity. But Dorf’s argument, as I see it, misconceives what the conservative textualist commitment consists of.

At the heart of Dorf’s argument is Justice Scalia’s statement in his majority opinion in Oncale v. Sundowner Offshore Services, Inc. (1998) that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” By that proposition, Scalia was making in the statutory context the same distinction between original meaning and original intent that he prominently made in the context of constitutional interpretation. So it would be incumbent on Dorf to show that the original meaning of Title VII bars discrimination on the basis of sexual orientation and gender identity.

Dorf does not undertake to make an argument about original meaning. Instead, he embraces the argument by Second Circuit chief judge Robert Katzmann, in his en banc majority opinion in Zadra v. Altitude Express, Inc., that “because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” (Emphasis added.) He then applies the same “function of sex” claim to gender identity. But neither he nor Katzmann grounds this “function of sex” claim in the original meaning of Title VII.

Without expressly taking a side, I note that it's a little odd for Professor Dorf to rest his textualist argument principally on an opinion by Judge Katzmann.  After all, Judge Katzmann, one of the nation's leading academic judges, wrote an entire book arguing that textualism was an inappropriate approach to statutory interpretation.  It's a great book.  But Judge Katzmann is really really not a textualist.

05/02/2019

Josh Blackman on the Special Counsel and the Take Care Clause
Michael Ramsey

At Lawfare, Josh Blackman: The Special Counsel’s Constitutional Analysis: Corrupt Intent and the Take Care Clause.  From the introduction:

Special Counsel Robert Mueller’s report found that the federal obstruction of justice statutes can apply to the president, even though the statutes do not state this expressly. ... [Mueller] concluded the obstruction statutes can generally apply to the president because “a ‘corrupt’ official action does not diminish the President’s ability to exercise Article II powers.” This argument is premised on a novel theory of the Take Care Clause that no court of record has even hinted at. Mueller may be right about this theory in many, if not most cases. But he should have exercised far more caution in advancing this sweeping constitutional argument. That lack of caution reaffirms, once again, how far he departed from OLC’s limited discussion of the President’s amenability to the criminal law. A 1995 OLC opinion hints only that the president could violate the federal bribery statute And that lack of caution reaffirms why the clear statement rule was the optimal way to resolve this issue.

...

[Mueller's argument], which is developed at several junctures of the report, can be reduced to a three-part syllogism: (1) It is inconsistent with the official duties of the president to take official actions that are not faithful executions of the law; (2) acting with a “corrupt personal motive” is “parallel” to, or “aligns with,” taking actions that are not faithful executions of the law; and (3) therefore, Article II does not prevent Congress from criminalizing “corrupt” actions, such as obstruction of justice, because those actions are inconsistent with the official duties of the president.   

The first element is fairly obvious. It derives straight from the text of the Take Care Clause, which provides that the president “shall take Care that the Laws be faithfully executed.” The third element is also true, if in fact a “corrupt” action is “inconsistent with the official duty”: if the Constitution does not give the president the power to do X, then Congress can pass a statute that prevents the president from doing X.

The entire syllogism, then, turns on the second element: Are actions taken with a “corrupt personal motive” “parallel” to, or “align[ed] with,” unfaithful executions of the law?

Professor Blackman then suggests that the answer to this question is "no," or at least "not necessarily."  (With graphs!).

From the core of the argument:

In 2015—long before President Trump’s election was even conceivable—I surveyed founding-era dictionaries to develop the original understanding the Take Care Clause. I turned to these primary sources because the Supreme Court has said strikingly little about this provision. Mueller cites several of the leading Supreme Court’s precedents, including Myers v. U.S.U.S. v. ArmstrongBowsher v. SynarMorrison v. Olson, and Free Enterprise Fund v. PCAOB. Yet none of these cases supports the conclusion that “the concept of ‘faithful execution’ connotes the use of power in the interest of the public, not in the office holder’s personal interests.” Mueller, like me, turned to some form of originalist analysis to shed light on this seldom-interpreted constitutional provision.

As an academic exercise, it is both necessary and proper to develop constitutional theories based on primary sources. And, in such academic exercises, the author should be candid that his theory is tentative and cannot be supported by any judicial precedent. For example, in my article, I offered analyses of several aspects of the clause: what sort of duty does “shall” impose; what does it means to act with “care;” what does it mean to “execute[];” and what does it mean to “execute[]” “the laws” “faithfully.” I also studied the common law history of faithful execution, and similar provisions in state constitutions. Even with that background, I still acknowledge that the meaning is not self-evident, and the absence of judicial authority makes the task even more fraught.

Mueller did not exercise that caution. He drew important conclusions about a particularly enigmatic provision of the Constitution, citing solely a dictionary definition of a single word in the clause. There is work that could have supported his theory, but he didn't even acknowledge it. Ultimately, only a thin reed supports his broad conclusion.

Professor Blackman has a second post as well: The Special Counsel’s Constitutional Analysis: Chilling Effects.

05/01/2019

Original Original Intent
Mike Rappaport

One of the great scholars of the American Constitution from a historical perspective was David Currie.  Here is a short excerpt from the Green Bag and the University of Chicago Law School Record about Currie's views on originalism.  

PAUL A. CLARK:      You have said that in the early nineteenth century everyone agreed that “the Constitution should be interpreted in accordance with the Framers’ original intentions” and yet one of your colleagues, Geoffrey Stone, recently called originalism a “vacuous ideology.”  From your reading of the constitutional arguments in the period when everyone was an originalist, how would you respond to Professor Stone?

DAVID P. CURRIE:  My first response is that I am simply reporting what I have discovered:  It is an interesting historical fact that most interpreters up until the Civil War (I have gone no farther) believed the Constitution should be interpreted according to the intentions of the Framers.  Beyond that, I think the fact that so many people believed it suggests they just may have been right.  After all, they were closer to the Framers than we are.  If they thought the original understanding important, it may be the Framers did too.  This approach also squares with what Blackstone, the Framers’ mentor, said about statutory interpretation:  Laws should be construed so as to accomplish their purpose.  Both Story and Marshall, of course, said the same thing about the Constitution.  More fundamentally, I don’t see how one can claim to be interpreting the law if one ignores what we know about what it was intended to mean.  If we grant that the Framers had the right to make law to bind us in the future, it seems to me that assumption requires us to try to carry out their intentions, which they could only express in often ambiguous words.  “Vacuous” means, among other things, empty.  If the point is that the historical record doesn’t contain all the answers, I would readily agree; that seems to me no reason for disdaining such help as one can derive from the existing materials – such as the Sedition Act debates of 1798, which contain in condensed form the whole modern theory of freedom of speech. 

Stephen Sachs: Finding Law
Michael Ramsey

Recently published, in the California Law Review, Stephen E. Sachs: Finding Law (107 Cal. L. Rev. 527 (2019)).  Here is the abstract: 

That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a “fallacy,” an “illusion,” a “brooding omnipresence in the sky.” That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system. This Article seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, “positive” criticism is that law has to come from somewhere: judges can’t discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English—with a certain kind of reliability, but with no power to revise at will.

The second, “realist” criticism is that law leaves too many questions open: when judges can’t find the law, they have to make it instead. But uncertain cases force judges to make decisions, not to make law. Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force—as law of the circuit, law of the case, and so on—without altering the underlying law on which they’re based. This Article claims only that it’s plausible for a legal system to have its judges find law. It doesn’t try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous passages in Erie, rest on the false premise that judge-made law is inevitable—that judges simply can’t do otherwise. In fact, judges can do otherwise: they can act as the law’s servants rather than its masters. The fact that they can forces us to confront the question of whether they should—and, indeed, whether the Erie doctrine itself can outlive its mistaken premises. Finding law is no fallacy or illusion; the brooding omnipresence broods on.

04/30/2019

The Ninth Amendment and the Federalist Interpretation
Mike Rappaport

Andrew Hyman writes a response to my post that the Ninth Amendment refers to natural rights, although it does not protect them as constitutional rights. Hyman offers a different interpretation of the Ninth Amendment, one I call the Federalist interpretation (which I referred to in my earlier post).

Hyman argues that the:

Amendment means the Constitution’s enumeration of powers – and not its enumeration of rights – may be construed to deny or disparage unenumerated retained rights to the same extent as under the original unamended Constitution.

Why, you might ask, would the framers have suggested that the enumeration of powers can be construed to deny unenumerated retained rights?  It is not a mystery.  As James Madison wrote to George Washington on December 5, 1789: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

Hyman’s post is a bit brief. But it is worthwhile explaining his view in a bit more detail, since it is a significant one. Under this view, there was a concern that the Bill of Rights might be dangerous and lead to interpretations that would expand the powers of the federal government. How could that happen?

Consider the following example. The Federalists had argued that an amendment protecting freedom of the press was unnecessary because Congress did not have authority under the enumerated powers to regulate the press. But if a freedom of the press amendment was passed, that could be dangerous. People might argue that the passage of the freedom of the press amendment showed that Congress’s powers were broad enough to regulate the press. The reason is that a freedom of the press amendment might have seemed unnecessary if the enumerated powers did not extend to regulations of the press. The amendment would have been superfluous. To avoid that superfluousness, one should interpret the enumerated powers to allow regulation of the press. Therefore, a Bill of Rights might expand the interpretation of the enumerated powers. According to this argument, the Ninth Amendment was needed to eliminate this inference.

I used to prefer this interpretation of the Ninth Amendment and still think there is much to it. But ultimately I concluded that it did not fit the original meaning of the text as well as the interpretation I defended in my previous post.

Let me explain why. Madison’s original proposal for the Ninth Amendment was the following:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution. [Emphasis added.]

Thus, Madison’s original proposal was concerned with two inferences: that the enumeration in the Bill of Rights would enlarge Congress’s enumerated powers (the italicized portion) and that the enumeration would disparage the rights retained by the people.

But Madison’s proposal was changed into the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  Clearly, the italicized language has been taken out.  Instead, it is only the language about the retained rights that remains.

Thus, it is hard to argue that the Ninth Amendment merely protects against the expansion of Congress’s powers. Given that the language about rights retained by the people typically referred to natural rights, I believe the best public meaning of the language here is a reference to those natural rights. Now, it might be possible that the Ninth Amendment is also referring to the expansion of enumerated powers. If so, then the Ninth Amendment will have a meaning that protects against the freedom of press inference described above. But I do not believe that the best meaning can deny that natural rights are at least part of what is being referred to here in the Ninth Amendment.

The President and Obstruction, Specifically
Michael Ramsey

I had not intended to write anything specific about the Mueller investigation beyond my general sketch of the constitutional aspects of the President and obstruction of justice.  But I think some important commentary is misunderstanding – or glossing over – a fundamental point about the President’s role (e.g., here from Quinta Jurecic at Lawfare).  So here are some specifics.

It is not sufficient to say that a President’s attempts to influence (or “interfere with”) an investigation or prosecution amount to obstruction of justice.  This is the tone of a good bit of commentary regarding the current President: that is, that the only substantial question in the case of the Mueller report is whether the President in fact tried to influence investigations or prosecutions.  But that is entirely the wrong way to look at it.  The key question is whether the President failed to act in his understanding of the public interest in influencing the investigations or prosecutions.

To sum up what I wrote before, the President is the nation’s chief prosecutor, by Article II, Section 1 of the Constitution.  Other federal prosecutors and investigators are his agents and instruments as a constitutional matter, although the executive branch may choose to impose some administrative separation.  (Again, I leave aside the question whether Congress can alter that arrangement by statute, per Morrison v. Olson, because Congress has not done so here).  That means that when the President "influences" an investigation or prosecution, he acts in his role as chief prosecutor.

That does make him beyond the obstruction of justice statutes.  The President has a constitutional duty of faithful execution of his office and a constitutional duty to take care that the laws are faithfully executed.  I read this language to mean that he can indeed obstruct justice, within the meaning of the statutes, when he acts against his duty of faithful execution.  Thus when a President takes bribes, destroys evidence or threatens witnesses, we may be confident he is acting against the public interest and thus contrary to his duty of faithful execution.

But it is an entirely different matter when the President seeks to influence or direct – or even discontinue – an investigation or prosecution in his role as chief prosecutor.  There are many reasons a prosecutor might do so in the public interest.  Making that decision is the essence of prosecutorial discretion.

As a result, the fact (if it is a fact) that the President sought to influence or discontinue investigations or prosecutions is not, standing alone, evidence of obstruction of justice.  Without more, it is merely evidence that he exercised his role as chief prosecutor to supervise prosecutions (prosecutions mostly left to his subordinates, but nonetheless subject to his constitutional oversight).  There needs also to be evidence that in doing so he was not acting in what he believed to be the public interest.  And absent bribe-taking, evidence destruction or the like, it is unlikely that such a case can be made.

Consider, for example, one of the claims against President Trump: that he asked then-FBI Director Comey to go easy on Michael Flynn in the prosecution for lying to the FBI.  As chief prosecutor, the President had constitutional authority over the Flynn matter.  Asking (or even ordering) Comey to go easy on Flynn is simply part of that authority.  The President could have ordered Comey to shut down the prosecution altogether, and fired him if he refused.  (For that matter, the President could have ended the whole matter by pardoning Flynn).  The idea that the much lesser act of suggesting leniency amounts to obstruction of justice misunderstands the President’s role and authority.

Of course, if the President asked Comey to go easy on Flynn for reasons not in the public interest, that would be a different matter.  But there’s no evidence of this.  It’s entirely plausible that the President thought Flynn’s supposed wrongdoing was debatable or inconsequential and that Flynn’s previous service should count in his favor.  That would be sufficient to support a request for leniency.

The same analysis applies to Mueller’s investigation of Russian collusion.  As a constitutional matter the President had authority over it.  As chief prosecutor he could decide to influence it or discontinue it (or to dismiss Mueller and find a replacement).  The President chose largely to allow Mueller to proceed independently and to cooperate with him.  But the President could decide that the investigation was not in the public interest or that Mueller was not the right man for the job. Again, this would not be obstruction of justice; it would be acting in his constitutional role – so long as the President understood himself to be acting in the public interest.

To be sure, it’s possible that the President did not believe himself to be acting in the public interest to the extent he sought to influence or curtail Mueller’s investigation.  (I leave aside factual questions of whether such attempts occurred).  Such a conclusion is somewhat more plausible than in the case of the Flynn prosecution, because the investigation potentially implicated the President himself.  But that is hardly decisive.  Especially because Mueller ultimately could not demonstrate any collusion, it’s very likely that the President considered the investigation a pointless hindrance to the performance of his official duties.  The question is not whether the President acted in ways that benefited himself; the question is whether he acted in ways he believed harmed the public interest.  It is only the latter that would take the case from the constitutional exercise of prosecutorial discretion to the violation of the duty of faithful execution.

I don’t think any of this analysis is inconsistent with what the Mueller report actually says (I confess to not having read all of it), although it may be contrary to some of its implications.  The report emphasizes that the question is whether the President acted “corruptly” or contrary to his duty of faithful execution.  I understand that to be parallel to my assessment.  But that would seem to require more proof of a bad motive than the report supplies.  The President’s disagreement with the investigation is not evidence of a corrupt motive; it’s evidence that he understood the public interest differently from his critics.

Two final points:  First, the Mueller report argues that its assessment of how the obstruction statutes interact with the president’s constitutional powers should not unduly chill the exercise of the President’s Article II powers.  I agree.  But only if the President’s actions to direct prosecutions and investigations (including of himself) are not assumed to be done from corrupt motives.  The burden should be on those claiming wrongdoing to prove it.

And second: The likely response to my assessment is that it puts the President in charge of investigating himself and thus effectively insulates him from investigation.  To that there are in turn two responses.  One is that it is the Constitution’s design, even if not an ideal one.  The second is Justice Scalia’s response in his Morrison dissent.  The President faces political constraints.  It is no accident that President Trump let the Mueller investigation proceed largely (if not entirely) unchecked despite his disagreement with it.  And in any event, Congress has the final say by invoking (or not invoking) the impeachment process.  That is the Constitution’s solution.

04/29/2019

John McGinnis on the Flexible Constitution
Michael Ramsey

At Law & Liberty, John McGinnis:  Originalism Protects the Timelessness of the Constitution (responding to this post by Michael Greve).  From the core of the argument: 

... [W]hat is most striking about [Professor Greve's] position is that he seems at times to adopt the progressive view of an evolutionary rather than a timeless Constitution. Michael calls “a timeless Constitution above all politics” a “mirage.”

But the Constitution itself is indeed in one sense timeless and it is this timelessness that energizes a politics to address change. As I said in my remarks and Mike Rappaport and I have expounded at greater length, the Constitution interpreted timelessly itself contemplates politics to address social change in three ways.

First, the states themselves have ample powers subject to relatively few restrictions. Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.

Second, Congress has substantial but not unlimited powers to legislate. And the powers are often stated as principles, like the Commerce Clause, that expand in scope even if they do not change in meaning as the nation matures. The Necessary and Proper Clause allows them to choose the means to do this, so long as their decisions are bona fide attempts to effectuate these powers and do not try to exercise other “great powers” denied by the enumeration.

Finally, the Constitution creates an amendment process by which to replace provisions that have become outmoded.  And here is where originalism comes in again. The high politics of the amendments will not work without originalism. If judges can change the constitution, which includes interpreting it in ways not contemplated by the Framers, the judiciary rather than the people will control constitutional change. Indeed ordinary politics may be compromised too as people seek to have judges unconstrained by the original meaning do what they cannot persuade legislators to do in legislation.

How Old is Originalism?
Mike Rappaport

Michael Greve recently published a piece entitled Originalism as Ideology which criticizes originalism and argues that it may have “run its course.”  Greve’s essay covers a lot of ground, but I thought it might be useful to discuss one key aspect of it that is of wider concern: how old is originalism?

According to Greve, originalism was born approximately in 1982 as a means of combatting Warren Court judicial activism.  He believes that in some ways it has been stupendously successful, but it is time to move on.

But is this right?  In my view, Originalism is not a thirty seven year old ideology, but a legal idea that is as old as the Constitution.  The main interpretive approaches at the time of the Constitution's ratification were originalist.  First, Alexander Hamilton’s interpretive approach was originalist.  Under original methods originalism – which in my view is the best originalist approach – one should look to the interpretive rules that existed at the time to discern its original meaning.  As Hamilton said in 1791, “whatever may have been the intentions of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.”  Using the conventional methods was the dominant approach in the early years.

The principal competing approach was that of Thomas Jefferson, which viewed the Constitution as a compact among the states.  Jefferson’s approach was also originalist.  He argued that one should look to the original intent as evidenced by the actions of the ratification conventions.  Significantly, Jefferson also was arguing for applying the conventional methods at the time – he simply believed that different conventional methods applied because he thought of the Constitution not as fundamental law, but as a compact among the states.

Thus, originalism was dominant from the beginning.  And it continued to be dominant through the Civil War.  At some point after the Civil War, it began to weaken a bit.  Finally, it was exiled through a combination of the Progressive criticisms of the Constitution and New Deal court packing.  By the 1940s, originalism was dead.  At first, it was replaced by a form of judicial restraint, and then by Warren Court judicial activism.  Neither of these approaches was friendly to originalism.

Eventually, some people opposed to these movements – especially Warren Court activism – came to settle on originalism and the modern originalism that Greve talks about emerged.  But it is a mistake to see this emergence as the birth of originalism.  Instead, it was an attempt to rediscover originalism.

It has taken some time for a genuine originalism to be rediscovered (what Greve refers to as originalism being “repeatedly reformulated”).  But this should not be surprising.  Originalism had been dormant for many years.  And when it became active again, it faced many obstacles.  Besides figuring out the historical methods for determining the original meaning, one needed to figure out how to apply these methods to a Constitution that was no longer a generation or two old, but that had been in existence for more than two centuries.  So modern interpreters needed to figure out how to discover the meaning of older words from a different legal world.  And originalism also needed to defend itself against a modern academy that was filled with theoretical arguments for different positions.

So modern originalism has changed a bit over its 37 years.  But that is all understandable when one realizes it is merely seeking to rediscover the original method for interpreting the Constitution and to defend those methods against modern critiques.

Greve says it is time to recognize that originalism has passed its period of usefulness.  By contrast, I would say it is time to recognize what modern originalism is and that it is attempting to restore the original methods for interpreting our Constitution.

04/28/2019

What an “Inalienable Natural Right” Originally Meant (Updated)
Andrew Hyman

In Kansas, the first section of the state constitution’s bill of rights says this:
 
1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
 
In a widely-reported April 26 opinion, the Kansas Supreme Court asked:  “Is this declaration of rights more than an idealized aspiration?”  The court answered “yes.”  And then the court went on to say that abortion is part of “liberty” and so the state legislature is subject to strict scrutiny under this clause (Justice Stegall wrote a dissent).
 
Some other state constitutions have similar clauses, and of course there is similar language in the Declaration of Independence.  An interpretation of this clause like the Kansas Supreme Court gave this week could supercharge the ability of state courts to undo almost any state law that they strongly disagree with.  So, it seems worthwhile to figure out if that would really be legitimate based upon original meaning.
 
This clause of the state constitution was adopted in 1859 during a convention in Wyandotte, Kansas.  According to the full transcript of the debates at that convention, it does appear that they meant for this clause to be more than an idealized aspiration, but that raised a problem for them: if liberty, or the control of a man’s person, is a right that cannot be alienated, then how could the state ever put anyone in jail for committing a crime?  One delegate said it would become impossible to “make a man amenable to any criminal law,” another complained that such a clause would “open all your jails,” and yet another asked how it would be possible to carry a defendant into court “without violating this clause.”  Then Samuel Kingman (later Chief Justice of the Kansas Supreme Court) rose to defend a revised and final version of the clause, and his defense was not even close to the modern doctrine of fundamental substantive rights.  On the contrary, the argument by Kingman that won the day was this:
 
I hold that this use of the word "inalienable," is misunderstood and misinterpreted in this House.  A man's right to his life is inalienable in law under all circumstances. He has no right to sell or give it away — no right to dispose of it at all. But the word "inalienable" has a fixed meaning in law. And when in the common use of the word we say, that a man cannot alienate his property, none would suppose we mean to say, he cannot forfeit his property.
 
Even today, one sense of the word “alienation” is “The voluntary and complete transfer from one person to another.”  And so, according to Kingman (putting aside the clause’s equality requirement), the clause in question does not limit what the state can do to a person but rather limits what a person can legally do to himself.  What I find remarkable is that the Kansas Supreme Court mentioned and quoted Kingman well over a dozen times in its opinion this month, and yet never even alluded to the part where Kingman said the meaning of the word “inalienable” had been misunderstood.  So perhaps the court’s opinion contained elements of originalism, but not nearly enough.  If it had, the court likely would have found that this clause affirms legislative power to stop people from killing themselves, from enslaving themselves, or from taking other actions which disable them from pursuing happiness.
 
UPDATE FROM ANDREW (April 28, 2019): At page 63 of the Kansas Supreme Court's opinion, the court did repeat part of the Kingman quote that is blockquoted above, in particular the fourth and fifth sentences. The court then cites John Locke and Randy Barnett regarding natural rights that the state should defend, but does so as if the word "inalienable" were not present in the clause at issue, and as if the rest of the Kansas bill of rights does not protect many natural rights regardless of whether they are inalienable.

04/27/2019

William Baude: Adjudication Outside Article III
Michael Ramsey

William Baude (University of Chicago - Law School) has posted Adjudication Outside Article III (133 Harvard Law Review (forthcoming)) (61 pages) on SSRN.  Here is the abstract: 

Article III requires federal courts that exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III – state courts, most obviously, but also territorial courts, administrative adjudication of public rights, and military tribunals. The question is why.

This article attempts to provide an answer. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with and what it is trying to do with that power? 

With this framework in view, the structure and scope of non-Article-III adjudication becomes clearer. Some courts exercise the judicial power of some other government. This is why territorial courts and state courts are constitutional. Some bodies exercise executive power, subject to the constraints reflected by the Due Process Clause. This is why administrative adjudication of public rights and military trials are constitutional. Some exercise no governmental power, and can proceed only as an adjunct to another entity, or on the basis of consent. This is the only basis on which magistrate judges and bankruptcy judges can proceed, and may render some of their current behavior unconstitutional.

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

04/26/2019

Michael Greve: Originalism as Ideology
Michael Ramsey

At Law and Liberty, Michael Greve: Originalism as Ideology.  From the introduction: 

I propose to explore originalism as ideology. What I mean by “ideology” is not partisan commitment but the original, Hegelian meaning: an idea whose progenitors deny, or cannot bring themselves to reflect upon the contingent conditions of that idea’s origin or creation—a thought or theory that parades around as timeless truth, as opposed to recognizing that it is a child of its time. In my view, originalism has been way too ideological in that sense. It would benefit from reflection and candor.

Originalism originated circa 1982 as a bit of a good-natured joke. Conservatives needed some respectable way of telling Justice Brennan and Justice Marshall, you can’t just make things up. “Strict construction” had failed (too Nixonian); so had Alex Bickel’s “passive virtues” (too fusty, and futile after the 1960s and certainly after Roe). Originalism looked like it might work. It seemed to offer a big tent for conservatives of all stripes and, at the same time, a program beyond partisan ideology and culture wars. This isn’t just about abortion or the death penalty, originalism seemed to be saying: we have a neutral program—a method of interpretation. Obviously, that was never quite true; but it had a certain surface plausibility.

It soon turned out that the originalist program had to be reformulated—not once, but repeatedly. Some of the reasons were theoretical; others political. Initially originalism was supposed to be about adhering to the Founders subjective intentions. That position is hard to defend as a serious theory and, worse, seems to be saying that Brown v. Board was probably wrong. Michael McConnell solved that latter problem in a famous article; and originalism migrated to a theory of “original public meaning.” That position is still au courant. But it, too, has been modified—again, for a combination of political and theoretical reasons. As for politics: in academic precincts, there must be a right to same-sex marriage if you want to remain part of the conversation. And there is, Steven Calabresi and other noted originalists purport to have shown: right there in the Fourteenth Amendment.  Other originalists have been cagier, although I wonder how long that can last.

(Thanks to Andrew Hyman and Mark Pulliam for the pointer).

Also at Law and Liberty, Mike Rappaport has a response:  How Old is Originalism?

For me, a telling paragraph in Professor Greve's critique is this one:

A far more consequential example [of the problems with originalism]: the separation of powers, and the “unitary executive.” We were supposed to celebrate Chadha (the “legislative veto” case) and we weren’t supposed to question the “unitary executive” because President Reagan and his Justice Department fought it ["fought for it," I think is intended] and, more important, because it wasn’t just a theory or doctrine but came directly from the Constitution’s text: it vests the Executive Power, all of it, in a President. That uncompromising position makes it hard to entertain second thoughts about presidential government, as many serious people now do; or to put the “unitary” piece of the puzzle together with an executive state that’s obviously out of control. 

No, accepting the unitary executive as an aspect of the text's original meaning does not "make[] it hard to entertain second thoughts about presidential government."  You may entertain all the second thoughts you wish.  But (if you are an originalist) you can't implement those thoughts through the courts under the cover of a supposed reinterpretation of the Constitution (in fact, by persuading five Justices to share your second thoughts).

Professor Greve is, in short, a conservative living constitutionalist.  Like most living constitutionalists, he wants to dress his modern intuitions up with some connection to the Constitution and the founding era, but he doesn't want those connections to get in the way of any "second thoughts" he might have about the modern efficacy of what was actually written in the Constitution. 

And that's fine.  Living constitutionalism is a worthy opponent of originalism, and there's no reason why living constitutionalism should necessarily lean left.  Indeed, I think the broader discussion of constitutional interpretation would be a more balanced and useful one if there were more conservative living constitutionalists.  Among other things, people on the left might find that originalism has more virtues than they supposed.