The Originalism Blog

Thomas Koenig & Christopher Moore: Of State Remedies and Federal RightsMichael Ramsey

Thomas Koenig (Harvard Law School '24) & Christopher D. Moore (Harvard Law School '24) have posted Of State Remedies and Federal Rights (74 pages) on SSRN.  Here is the abstract:

The Supreme Court has repudiated Bivens on the grounds that it arrogated legislative power to the federal judiciary. As the Court steps back, Congress is free to undo what remains of Bivens or strengthen it. So can the States. Much like they did at common law, the States can supply the cause of action that the federal judiciary cannot. Specifically, as things stand now, States are free to arm their citizens with a cause of action for damages against federal officers who violate their federal constitutional rights. Federalism principles do not stand in their way. Nor does Supreme Court precedent. Nor does the Westfall Act.

Moreover, these state causes of action need not cloak federal executive officials with any particular set of immunities. Federal courts would lack the necessary authority to craft immunities as a matter of federal common law. There’s no special federal concern in protecting federal officials who take actions unauthorized by federal law. And federal law may not authorize any federal official to violate federal constitutional rights. Statutory authorization to craft immunities would likewise be lacking. The immunities the Supreme Court has crafted under Bivens are unique to Bivens actions. When federal courts create a cause of action, they may fill in the gaps by providing statutes of limitations, burdens, and crucially, immunities. But federal courts will not have created converse-1983 actions, and there will be no gaps to fill. If converse-1983 is to fall, it must fall at the hands of Congress — not the federal courts.

Via Larry Solum at Legal Theory Blog, who says: "Very interesting and recommended!  An extraordinary paper".

Amanda Tyler: Judicial Review in Times of EmergencyMichael Ramsey

Amanda L. Tyler (University of California, Berkeley - School of Law) has posted Judicial Review in Times of Emergency: from the Founding through the COVID-19 Pandemic (Virginia Law Review, Vol. 109, No. 3, 2023) (106 pages) on SSRN.  Here is the abstract:

Whether deferring to President Lincoln’s blockade at the start of the Civil War, a state’s suspension of creditors’ remedies during the Great Depression, or President’s Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II, the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that during peacetime would be viewed as flouting the Constitution. Although there have been a handful of exceptions to this practice, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency.

In several recent cases, however, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where they intersect with the exercise of religion, but also in the area of property rights and separation of powers. The Court’s propensity to be so active of late should revive debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same.

This article explores the role of the Constitution and judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic, while surveying debates on either side of the competing visions that emerge. Then, after criticizing the Court’s inconsistent approach to its role during the pandemic and acknowledging that many may find fault in its merits assessments of certain cases, the article contends that the application in some recent cases of normal standards of judicial scrutiny during times of emergency should be viewed as a welcome development. The Court’s recent decisions suggest we have traveled some distance in rejecting the prosecution’s argument at the trial of the Lincoln conspirators that the Constitution is “only the law of peace, not of war.” But, as will also be shown, we still have a considerable way to go.

Via Dan Ernst at Legal History Blog.

Maggie Gardner on the Supreme Court and Personal JurisdictionMichael Ramsey

Maggie Gardner (Cornell Law School) has posted Their Beef Is with Burger King (New York University Journal of International Law and Politics, Vol. 56, 2023) (9 pages) on SSRN.  Here is the abstract:

International Shoe Co. v. Washington was decided seventy-five years ago, and there are some rumblings that it is showing its age. On the Supreme Court, Justice Gorsuch has been the most open skeptic, wondering whether “International Shoe just doesn’t work quite as well as it once did,” though Justice Thomas and Justice Alito have shared similar concerns. While other Justices seem less open to jettisoning International Shoe itself, they have nonetheless worried about its limits, raising questions about online commerce, coffee farmers in Kenya, and duck decoy makers in Maine.

These complaints are misdirected. The Justices’ criticisms (both explicit and implicit) are not really about International Shoe—they are about the doctrinal scaffolding that the Supreme Court superimposed on top of International Shoe in the mid-1980s. In cases like Burger King v. Rudzewicz, Helicopteros Nacionales de Colombia, S. A. v. Hall, and Asahi Metal Industries Co. v. Superior Court, the Supreme Court bifurcated personal jurisdiction analysis into general and specific jurisdiction and articulated a three-part test for specific jurisdiction that we still teach 1Ls today. This festschrift essay draws on Professor Linda Silberman’s prescient contemporaneous commentary about these doctrinal developments to remind readers of the choices made and paths not taken. If Burger King’s effort to rulify personal jurisdiction is proving unworkable, that is not a reason to abandon International Shoe. Instead the Court could scrape off some of the barnacles of interpretation that have accumulated on top of International Shoe, a process the Court may already have started. Granted, even a scrubbed-down version of International Shoe’s framework may not be enough to placate those Justices (like Gorsuch and Thomas) who are seeking an originalist understanding of the Due Process Clause. But better and more stable progress will be made if we can at least diagnose the source of current complaints correctly.

New Book: "American Before 1787" by Jon ElsterMichael Ramsey

Recently published: America before 1787: The Unraveling of a Colonial Regime by Jon Elster (Princeton University Press 2023).  Here is the book description from Amazon:

An original account, drawing on both history and social science, of the causes and consequences of the American Revolution

With America before 1787, Jon Elster offers the second volume of a projected trilogy that examines the emergence of constitutional politics in France and America. Here, he explores the increasingly uneasy relations between Britain and its American colonies and the social movements through which the thirteen colonies overcame their seemingly deep internal antagonisms.

Elster documents the importance of the radical uncertainty about their opponents that characterized both British and American elites and reveals the often neglected force of enthusiasm, and of emotions more generally, in shaping beliefs and in motivating actions. He provides the first detailed examinations of “divide and rule” as a strategy used on both sides of the Atlantic and of the rise and fall of collective action movements among the Americans. Elster also explains how the gradual undermining in America of the British imperial system took its toll on transatlantic relations and describes how state governments and the American Confederation made crucial institutional decisions that informed and constrained the making of the Constitution.

Drawing on a wide range of historical sources and on theories of modern social science, Elster brings together two fields of scholarship in innovative and original ways. The result is a unique synthesis that yields new insights into some of the most important events in modern history.

 

Kevin Bendesky on Cruel PunishmentsMichael Ramsey

Kevin Bendesky (Harvard Law School JD '23) has posted ‘The Key-Stone to the Arch’: Unlocking Section 13’s Original Meaning (University of Pennsylvania Journal of Constitutional Law, Vol. 26, No. __, 2023) (53 pages) on SSRN.  Here is the abstract:

The Pennsylvania Supreme Court holds that Section 13 of the State’s Constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only “cruel and unusual punishments.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This is because Pennsylvania history, says the court, does not provide evidence that the Commonwealth’s prohibition differs from the federal one. Without that historical basis, the court believes it is bound by federal precedent.

This is mistaken. History reveals that Pennsylvanians had a distinct original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited any severity contemporary science deemed unnecessary for those ends. The historical record should provide, not prevent, a distinctly Pennsylvanian definition of cruelty.

This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Pennsylvania Supreme Court interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments.

Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history provides.

Professor Squitieri and NondelegationRob Natelson

In 2019, Julian Mortenson and Nicholas Bagley made public their widely-discussed article (formally published in 2021) in which they concluded that there was no Founding-era non-delegation doctrine. They found no bounds to the extent a Founding-era legislature could delegate its power, so long as the legislature did not permanently alienate that power.

In January 2020, I responded on this site. I noted some problems with their research and their conclusions. But I added that perhaps non-delegation advocates were misguided in seeking a single non-delegation principle for all of Congress’s powers. I wrote:

It is fundamental that the Constitution does not delegate to Congress “the legislative power.” Rather, it delegates about thirty discrete legislative powers . . . . Specific words and phrases define the scope of each of these powers. The framers were careful drafters, and most of these words and phrases were borrowed from contemporaneous legal or governmental practice. For example, to “regulate Commerce” was an Anglo-American legal phrase embracing the law merchant, protective tariffs, governance and facilitation of navigation, and certain related subjects. Similarly, the framers borrowed the phrase “establish Post Offices and post Roads” from British postal statutes. It encompassed building post offices and intercity roads, designating postal routes and tolls, hiring employees, enacting criminal penalties for misuse of the postal service—everything necessary and customary to develop a working postal system and an intercity highway system.

The extent to which each enumerated power authorized Congress to delegate to executive sub-agents depended on the constitutional words describing the power.

In 2021, Professor Chad Squitieri published a law review article reaching—independently, I assume—a similar conclusion. As Professor Squitiri wrote in his Abstract:

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress . . .

As I had, Professor Squitieri advocated that the extent of permissible delegation for each legislative power should be ascertained from the relevant text and surrounding circumstances.

We are indebted to Professor Squitieri for thus furthering the debate. I do, however, wish to address what I see as a shortcoming. That shortcoming is his use of the Necessary and Proper Clause as a sort of omnibus delegation vehicle for each enumerated power. He writes:

This Necessary and Proper Clause provides the text-based standard for determining how Congress can delegate its Article I, Section 8 powers. The key nondelegation question for the legislative powers enumerated in Article I, Section 8 is therefore as follows: Whether an objective reader in 1788 would have understood a particular delegation to be a “necessary and proper” means of “carrying” a particular Article I, Section 8 power “into execution.”

As some readers know, I concluded long ago that—contrary to prevailing modern orthodoxy— founding generation lawyers construing a document usually preferred the parties’ subjective understanding over the document’s objective meaning, for Qui haeret in litera, haeret in cortice. (pdf)  Because the Constitution was drafted to be construed by then-prevalent interpretive methods, I likewise think we should apply the ratifiers’ subjective understanding when available and coherent. But that is not the point I wish to make today.

In statements such as the one just quoted, Professor Squitieri effectively treats each legislative power as having two components: (1) a general description of the power and (2) the Necessary and Proper Clause authorization to legislate in that area.

I will admit that the framers sometimes drafted in that manner. In Article III, Section 2 they first listed the components of “the judicial Power” and afterwards formally granted those components. (I do not subscribe to the theory that the first sentence of Article III itself vests authority (pdf).) However, the first 17 clauses of Article I, Section 8 (and Congress’s other powers) are not merely recitals to be carried into effect by congressional action under the Necessary and Proper Clause.

The Nature of the Necessary and Proper Clause

In 2004, I published “The Agency Law Origins of the Necessary and Proper Clause” (pdf). Since then, my work has been supplemented and confirmed by a substantial amount of published research on the subject—not just by me, but also by Gary Lawson, Guy Seidman, and Geoff Miller. (See, for example, this book.)

Our underlying findings are pretty much consistent:

• During the Founding Era the term “necessary” in this context was a synonym for “incidental.”

• As several leading Founders pointed out, the Necessary and Proper Clause granted no additional authority to Congress. It simply told the reader that the doctrine of incidental authority, which usually inhered in enumerated-power documents, also applied to the Constitution. This distinguished the Constitution from the Articles of Confederation, which had explicitly excluded incidental authority.

• Incidental powers were those both (1) “less worthy” than those mentioned explicitly (“principal powers”) and (2) tied to their principals by custom or reasonable necessity.

• The meaning of “proper” is less certain. It appears to mean that congressional legislation exercising incidental powers must be consistent with then-understood duties of public trust. For example, regulating an incidental activity must be done for the bona fide purpose of governing an activity within Congress’s explicit authority to govern. It must not be a pretext to serve some unenumerated purpose.

Unfortunately, Professor Squitieri’s article shows no awareness of those research findings.

Application to Non-Delegation

Because the Necessary and Proper Clause is merely a rule of construction, the scope of each power the Constitution grants should be determined from the wording and ambient history of that power alone. There is no need to consult the Necessary and Proper Clause except as a reminder that Congress may regulate incidents in a good faith effort to regulate principals. In exercising the Commerce Power, for example, surely Congress may require labeling standards, even though labeling is technically production or packaging rather than “commerce.”

Assuming that Professor Squitieri and I are correct about the hypothesis we hold in common, we originalists have some work to do. To be sure, some of that work already has been done: An example, as I mentioned in my 2020 entry and elaborated here (pdf), is the scope of the power to “establish” post offices and post roads. The breadth of that scope (see above) suggests that the Congress’s ability to delegate in that area is limited—because the Constitution grants only to Congress, not to any other entity, the power to “establish.”

On the other hand, the enumerated power to “provide and maintain a Navy” contemplates Congress as playing principally a funding role, delegating extensively to executive-branch officers—a conclusion fortified by the Constitution’s designation of the President as commander-in-chief. (I address the Founding-era meaning of “provide” here (pdf).)

For other powers, however, the research has not yet been done. For example, to what extent does the “Power To lay and collect Taxes, Duties, Imposts and Excises” comprehend power to delegate that authority to the President? And does the answer differ according to the nature of the financial exaction?

In short, I believe Professor Squitieri is likely correct in his most important conclusion: The scope of permissible delegation must be determined from the text of each power and the surrounding context. But there is no need to insert the Necessary and Proper Clause into the equation, except as a useful reminder.

Kim Forde-Mazrui on Originalism and Affirmative Action

At the Hill, Kim Forde-Mazrui (Virginia): How originalism supports affirmative action.  From the introduction: 

If the court applies originalist analysis to the higher-education affirmative action cases currently before it, race-conscious admissions across the country should be upheld.

The originalist theory of constitutional interpretation holds that the 14th Amendment’s meaning was fixed by how people understood the amendment when it was ratified in 1868. Historical laws and practices before and following ratification is important evidence for originalists seeking such understanding.

And from later on: 

State colleges have used race preferences in admissions throughout American history. Indeed, until the second half of the 20th century, the great majority of Southern state colleges imposed admission quotas: 100 percent of admitted students were white (and, overwhelmingly, male). Such race-based admissions practices were prevalent when the 14th Amendment was ratified and persisted for nearly a century thereafter.

Moreover, the Reconstruction-era Congress, many of whose members drafted the 14th Amendment, apparently believed the amendment permitted states to use racial preferences in college admissions. In the decade following the amendment’s 1868 ratification, Congress enacted civil rights laws to explicitly prohibit race discrimination in several contexts, including property and contract rights, and access to public-serving businesses, such as hotels, restaurants, theaters and public carriages. But Congress did not prohibit race discrimination by states in higher education, including college admissions. In fact, during Reconstruction, Congress repeatedly considered and rejected proposals to prohibit race discrimination in college admissions as a condition for states to receive federal funds for higher education.

...

This historical evidence adds further support to Harvard’s and UNC’s arguments that the 14th Amendment did not require states to be blind to race. That the amendment’s original meaning appears to have permitted college-admission preferences for white people is disappointing. However, the uncontested, primary purpose of the 14th Amendment is equality for Black people, so the historical practice of race-conscious admissions in the 19th and 20th centuries certainly supports the permissibility of race-conscious admissions for Black people in the 21st century.

I don't think this argument is correct as an originalist approach or that the current Court will be persuaded by it.  But I do think it shows the problem of relying too narrowly on the history and tradition approach of Dobbs and Bruen.  If the Court reaches the constitutional issue in the UNC case some further elaboration may be needed.

Anita Krishnakumar: Textualism’s Fault LinesMichael Ramsey

Anita S. Krishnakumar (Georgetown University Law Center) has posted Textualism’s Fault Lines (102 pages) on SSRN. Here is the abstract:

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the modern Supreme Court, it is time for scholars and jurists to grapple with these theoretical tensions and points of divergence between textualist interpretive theory and practice.

This article provides the first empirical and doctrinal analysis of three central fault lines, or places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive theory. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, this article highlights three surprising textualist fault lines: (1) first, while textualism-in-theory seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualist interpretive practice is decidedly pluralist, as a clear majority of the Court—including all of the Justices widely considered to be textualists—regularly references several interpretive tools that textualism-in-theory rejects; (2) second, while textualism-in-theory insists that statutory terms be given their date-of-enactment or “original public” meaning, textualism-in-practice regularly uses present-day sources to determine statutory meaning; and (3) third, while textualism-in-theory emphasizes the meaning that statutory terms have in everyday conversational speech, textualism-in-practice relies heavily on sophisticated legal doctrines and constructs. These findings hold true even if we focus exclusively on data from the Court’s most recent 2017-2020 terms, during which the Court’s composition has skewed lopsidedly textualist.

After chronicling these divergences between textualist theory and practice, the article considers and rejects the possibility that they may be attributed merely to faint-hearted judicial application of textualism and that they should be resolved through more disciplined adherence to textualist principles. Instead, the article suggests that textualist interpretive theory may actually be inherently contradictory in ways that give rise to these interpretive divergences; for example, textualism’s commitment to stability may be in tension with its commitment to predictability and fair notice. In the end, the article offers some suggestions for how textualist theory might evolve to both reconcile these internal contradictions and to better account for how textualism actually is practiced on the ground.

Via Larry Solum's Legal Theory Blog, where it is "Download of the Week" (last week, but I'm behind).

Haley Proctor: Legislative FactsMichael Ramsey

Haley Proctor (University of Missouri at Columbia - School of Law) has posted Legislative Facts (Notre Dame Law Review, Vol. 99, forthcoming) (69 pages) on SSRN  Here is the abstract:

Giving meaning to law can be a fact-intensive exercise. Sometimes it demands a dusty search for the common usage of a word in 1789; sometimes a green-eye-shaded scrutiny of figures showing the economic impact of a regulatory measure. As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how.

This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role facts play in lawmaking. This Article proposes a different approach that situates facts within the adjudicatory process. The facts captured by the label “legislative fact” play two different roles in resolving parties’ disputes: sometimes they provide a premise for the rule of decision the court uses to resolve the dispute, and sometimes they assist the court in relating that rule of decision to the circumstances of the parties. Courts should distinguish between these roles when determining who should find the facts, and how. This approach results in sounder dispute resolution and sounder developments in the law, and it is more administrable than the current, undisciplined approach.

Why Madison’s 1800 Report is Irrelevant to the Constitutional Debate Over ImmigrationRob Natelson

A debate, held both on this site and on The Volokh Conspiracy, has erupted between Ilya Somin and Andrew Hyman over the extent to which the federal government and states may restrict immigration. Professor Somin denies that Congress has power to prevent immigration to persons from nations with which the United States is not at war; Andrew Hyman argues that Congress has that power under the Constitution’s Define and Punish Clause (Article I, Section 8, Clause 10).

To support his case, Professor Somin relies partly on an 1800 Virginia legislative report, “Proceedings of the Virginia Assembly, on the Answers of Sundry States.” The author was James Madison, and its purpose was to defend the famous 1798 Virginia Resolutions.

The Virginia Resolutions were critical responses to two laws Congress recently had passed as part of a four-law package. The Virginia Resolutions argued that the Alien Friends Act and Sedition Act were unconstitutional. However, the Resolutions had, in turn, encountered heavy fire from some other state legislatures. The Report of 1800 was Madison’s way of responding. Indeed, one reason he had secured election to the House of Delegates this late in his career was to shepherd this new statement through the legislature.

This is not the first time legal scholars have appealed to Madison’s 1800 Report to opine on the Constitution’s treatment of immigration (see, for example, this pdf). However, this post argues that reliance on the Report for that purpose is inconsistent with appropriate scholarly standards.

I so conclude for two reasons. The less important reason is that the Report actually does not address Congress’s power over immigration. The more important reason is that even if it did so, it would not be very reliable evidence.

In the service of full disclosure: My own research has persuaded me that the Constitution’s Define and Punish Clause surely grants Congress power to curb non-commercial immigration (pdf). There was little discussion of the precise issue during the ratification debates (although there was some), because America was seeking as many immigrants as possible. But there is other evidence: All the international law books familiar to Americans stated that sovereign control of borders was a component of the law of nations. Border control was discussed in treatises, or parts of treatises, devoted exclusively to international law and as a component of international law. These treatises included five titles frequently cited in the courts during the ratification era, and recommended to the Confederation Congress by a congressional committee of which Madison and two other framers were members.

Prof. Somin argues that border restrictions and their enforcement were merely part of the municipal law. Professor Somin is an outstanding legal scholar, but in this instance I do not believe his conclusion is tenable.

What’s Good About Madison’s Report

In his Report, Madison contended the federal government has only those powers the Constitution grants it. In other words, the federal government does not have an unstated reservoir of “inherent sovereign authority,” as claimed by Justices such as George Sutherland (pdf) and law professors such as John Mikhail (pdf). As Madison observed, during the ratification debates the Constitution’s advocates uniformly represented it as conveying only limited enumerated powers (pdf, pdf, pdf). And among those who said so was the very person who had invented the “implied sovereign authority” doctrine for the Articles of Confederation: James Wilson.

Thus, in arguing against the Alien Friends Act and the Sedition Act, Madison quite properly contended that the Constitution’s enumerated powers do not confer the authority those laws purported to exercise.

In his Report, Madison also affirmed, as he had affirmed elsewhere, that the Constitution derives its force from the ratification and must be construed as understood by the ratifiers. This observation was simply an application of the dominant Founding-era interpretive method applied to most documents—with the notable exception of real property conveyances (pdf).

These salutary aspects of the Report do not, however, render it appropriate evidence of the understanding of, or meaning to, the ratifiers. 

The Report’s Argument

Here are excerpts from the Report most relevant to the claim that Congress had no power over immigration. Italics are in the original. (Apology: As a stylist, Madison was no Gouverneur Morris.)

The next observation to be made, is, that much confusion and fallacy, have been thrown into the question, by blending the two cases of aliens, members of a hostile nation; and aliens, members of friendly nations. . . . With respect to alien enemies, no doubt has been intimated [in the Virginia Resolutions] as to the federal authority over them; the constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens, who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress, is denied to be constitutional . . . .

                                                                         * * * *

[I]t can never be admitted, that the removal of aliens, authorised by the act, is to be considered, not as punishment for an offence; but as a measure of precaution and prevention. If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country, where he may have formed the most tender of connections, where he may have vested his entire property, and acquired property of the real and permanent, as well as the moveable and temporary kind; where he enjoys under the laws, a greater share of the blessings of personal security and personal liberty, than he can elsewhere hope for, and where he may have nearly compleated his probationary title to citizenship; if moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war . . . and possibly to vindictive purposes which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.

                                                                         * * * *

It is said, further, that by the law and practice of nations, aliens may be removed at discretion, for offences against the law of nations; that Congress are authorised to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences.

The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.

A hasty reading of this passage might leave one with the impression that Madison was laying down the invariable rule that the federal government has authority to punish aliens from enemy nations but no authority to punish those from friendly nations; and that punishing the latter is solely a matter for the municipal—i.e., state—law.

A Closer Reading

The Alien Friends Act was primarily directed at deportation, and a closer reading of this passage shows Madison was discussing only deportation, not immigration per se. It is true, as Prof. Somin states, that the statute contained some minor restrictions on immigration. Significantly, however, Madison did not challenge those.

The passage further shows that Madison was criticizing the law for authorizing presidential deportation, not just of any aliens from friendly countries, but only of those in the United States legally. He assails deportation without due process from a country “into which [they have] been invited.”

“Alien friends,” Madison wrote, “except in the single case of public ministers, are under the municipal law.” In 18th century jurisprudence, this was so because an alien friend coming into the country legally entered into temporary “allegiance” to the receiving sovereign. By subjecting himself to the receiving sovereign’s laws, the alien friend became a temporary “subject” (subditus) of that sovereign—conditional only on the alien’s overriding obligation to his own sovereign. In return, the alien friend was entitled to the receiving sovereign’s protection.

A prominent example of submission to a sovereign’s laws triggering a duty of protection was Somerset v. Stewart, the 1772 case that effectively abolished slavery in England. James Somerset had been a slave in Virginia. But his arrival in England and submission to her laws rendered him (in the words of his legal counsel) “liable to all their penalties and consequently has a right to their protection” (pdf).

(Madison’s exception for “public ministers” reflected the rule that a diplomat on foreign territory was not in allegiance to the receiving sovereign. Wherever he trod became, as to him, a plot of his homeland.)

So far, so good: Alien friends were subject only to the municipal law. But what was an alien friend?

This term encompassed most visitors from friendly nations—but not all of them. A person from a friendly country might show himself hostile to the laws of the receiving nation and therefore not in allegiance to it. No allegiance, no protection.

An example of the latter situation was reported in Vaughan’s Case, 2 Salk. 635, 91 Eng. Rep. 535 (undated). This was a decision by Sir John Holt, one of England’s most highly regarded Chief Justices (served: 1689-1710), and reported by William Salkeld, one of the more highly-regarded case reporters.

Vaughn was a Dutchman at a time when the United Provinces of the Netherlands was in alliance with Great Britain. It therefore was claimed that he was a friendly alien. But he had allied himself with France, a nation with which Britain was at war. That made him an enemy alien, notwithstanding his nationality. Of such people, Justice Holt said, “[T]the French subjection makes them French subjects in respect of all other nations but their own.”

To put the principle more generally: An immigrant or foreign visitor from a friendly nation puts himself under the protection of the receiving sovereign—and therefore becomes entitled to the protection afforded an alien friend—by subjecting himself to the receiving sovereign’s laws. He is the kind of person Madison describes as coming into a country

into which he has been invited, as the asylum most auspicious to his happiness . . . where he enjoys under the laws, a greater share of the blessings of personal security and personal liberty, than he can elsewhere hope for, and where he may have nearly compleated his probationary title to citizenship . . . .

By contrast, a person seeking to enter the country illegally (such as, but not limited to, an invader—a word, incidentally, whose Founding-era dictionary meaning is broad enough to include much of what is now going on at the southern border) does not subject himself to that country’s laws. He is not, as Madison was using the term, a “friendly alien.”

The More Serious Objections

Readers who have spent much time with academics in other disciplines may be aware that, as a general proposition, legal scholarship is not highly regarded. (The sneer about “law office legal history” comes to mind.) Our legal training, coupled with the fact that most of us have no training in historical methods, tempts us to prefer a superficially appealing argument to a true one. All too often, we yield to the temptation by cherry-picking relevant evidence—or wandering into distant fields in search of other cherries to pick.

A common symptom of this, in my view, is the marshaling of sources arising well after the Constitution’s ratification to “prove” ratification-era meaning or understanding. Historians sometimes call this “reading history backwards.” They know it more formally as “anachronism.”

There are all sorts of reasons why post-ratification statements are generally useless for showing ratification-era understanding. Here are some:

*          Memories fade.

*          Ratification-era participants who might have contradicted those statements often were not around to do so: When the 1800 Report was published, such leading participants in the constitutional debates as Benjamin Franklin, Patrick Henry, George Mason, Roger Sherman, Melancton Smith, and George Washington were all dead. John Rutledge was still alive, but suffering from mental illness. Rufus King was abroad. And so forth.

*          Incentives change. The same person who, when presenting the Constitution to the public in 1788, had an incentive to characterize the federal government’s powers one way, often had an incentive to characterize them differently later on. By way of illustration, the difference is great between Alexander Hamilton’s constitutional arguments in Federalist No. 16 (prior to ratification) and in his Report on Manufactures (after ratification).

*          Alliances change. In particular, they changed dramatically after the first session of the First Federal Congress, as the case of Madison illustrates: Prior to that time, he was allied with Hamilton. After that time, he was allied with Thomas Jefferson.

*          Context and language change.

Using Madison’s 1800 Report to show the understanding of the ratifiers a decade earlier is subject to all of those objections.

Of course, it might be contended that under the rule of “practical construction,” one could use the Report to “liquidate” the Constitution’s true meaning. But the rule of practical construction requires both an initial ambiguity and a uniform subsequent interpretation. Even if the former were present (and in view of the evidence on the scope of the Define and Punish Clause, I don’t think it is), the latter is not: Far from expressing a universal view, the Report was a highly partisan production whose conclusions on the Alien Friends Act were opposed by some other Founders. And even if the Report could be read as denying a congressional power over immigration, it would be inconsistent with long-standing practice.

The Report of 1800 confirms many earlier public representations about the Constitution as a document conveying only those powers enumerated and their incidents. It also applies the then-prevailing interpretive technique to the instrument. Further, it is evidence of Madison’s constitutional views at the time, as well as those of a majority of the Virginia legislature.

But it is not useful evidence of the Constitution’s treatment of immigration.

Seth Barrett Tillman & Josh Blackman: Offices and Officers of the Constitution, Part IVMichael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) & Josh Blackman (South Texas College of Law Houston) have posted Offices and Officers of the Constitution, Part IV: The 'Office . . . under the United States' Drafting Convention (62(4) S. Tex. L. Rev. 455–532 (forthcoming 2023) (78 pages) on SSRN.  Here is the abstract:

This Article is the fourth installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution’s divergent “office”- and “officer”-language. The third installment analyzed the phrase “Officers of the United States,” which is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause. This fourth installment will trace the history of the “Office . . . under the United States” drafting convention.

This Article proceeds in eight sections. Section I introduces the British drafting convention: “Office under the Crown.” For the last three centuries, this phrase has referred to appointed positions. And, in our view, this English and British legal tradition crossed the Atlantic—ultimately becoming part of a wider Anglo-American legal tradition. Section II considers the use of the “Office . . . under” drafting convention in the Articles of Confederation, which was ratified in 1781. Section III turns to the four clauses in the Constitution that use the phrase “Office . . . under the United States,” albeit with some variations: the Elector Incompatibility Clause, the Impeachment Disqualification Clause, the Incompatibility Clause, and the Foreign Emoluments Clause. In our view, the phrase “Office . . . under the United States” refers to appointed positions in the Executive and Judicial Branches, as well as non-apex appointed positions in the Legislative Branch.

Section IV analyzes several reports prepared during President Washington’s administration by the Treasury Department under its first Secretary of the Treasury, Alexander Hamilton. These documents support our position: the British “Office . . . under” drafting convention, which was used to distinguish between appointed and elected positions, had been adopted by Hamilton, a framer, and some of his contemporaries. Section V reviews an anti-bribery statute enacted by the first Congress. This 1790 statute, and other similar early federal statutes, provide further support for our position that the First Congress and early congresses adhered to the British “Office under” drafting convention. Section VI considers how the phrase “Office under the United States” was used during the American Civil War. At this time, more than seven decades after the framing, Hamilton’s understanding of the “Office . . . under” drafting convention, as well as the documents he and his department had drafted, were still remembered and remained influential. Section VII surveys other nineteenth-century commentators who recognized the “Office . . . under” drafting convention, including Joseph Story. Section VIII revisits an 1809 state legislative debate concerning the 1776 North Carolina Constitution. Some participants in that debate, including a future state supreme court justice, recognized that the state constitution’s “office”-language distinguished between appointed and elected positions.

These eight parts support our position: in the Anglo-American legal tradition, the phrase “Office under the . . .” was, and remains, a commonly-used drafting convention that refers to appointed officers. This phrase does not refer to elected officials.

Part III of this series, also recently posted on SSRN, is noted here.

Programming Note: Yet Another Blog HolidayMichael Ramsey

I will be on blog hiatus for about a week as part of my sabbatical leave.  Hope nothing interesting happens.

Is the National Popular Vote Compact Unconstitutional? (Again)Michael Ramsey

At PowerLine, UCLA law emeritus professor Dan Lowenstein, in a guest comment, argues that the proposed National Popular Vote Compact is unconstitutional, here.  From the core of the argument: 

A close reading of the constitutional language makes evident that, as the first clause states, the appointment of electors must be by the state.  The power granted to the legislature is not to determine any method whatever for selecting the electors, but to determine a method whereby “the state” shall appoint electors.  The appointment must be by the state.

Of course, the state is not a human being, and therefore cannot itself appoint anyone or make any other decision.  The state must act through someone who can speak as the state.  Most obviously in a democracy, the voters of the state may speak as the state.  In fact, at present and for most of our country’s history, every state legislature has chosen popular election as the method for appointing electors.  As is well-known, however, in the early decades of the Republic, in many states the legislature itself appointed the electors.  This was proper, because the legislature is elected by the people of the state, and therefore may be said to speak as the state.

To the best of my knowledge, election by the voters and selection by the legislature are the only means of appointment that have ever been used.  Those also appear to be the only two methods that were contemplated by the framers of the Constitution.  Would any other method be consistent with the language of Article II?  Probably selection by the governor would be permissible, because the governor, like the legislature, is selected by the state’s voters.  Although it begins to get a little tenuous, probably another statewide official, such as the attorney general or the secretary of state, could appoint the electors.  And perhaps two or more such officials acting collectively.  More tenuously yet would be selection by the members of the state Supreme Court, since their appointment too can be traced back to the state’s voters.  (I am not suggesting that any of these methods would make any sense as a matter of policy, but only that they might come within the Constitution’s language.)  It would also probably be possible for the people or the legislature to choose delegates to a convention that would select the electors.

That about exhausts the possibilities that are or might be permissible under the Constitution’s language.  The selection could not be delegated to a limited portion of the state’s voters or a group selected by such a limited portion.  For example, the Illinois legislature could not decide that electors should be selected only by the voters of Chicago or only by voters outside Chicago.  Or by the City Council of Chicago.  Because a portion of the state is not the state, and a portion of the state cannot plausibly be regarded as speaking as the state.  Even more obviously, the appointment of electors may not be delegated to people who have no connection with the state.  Thus, the legislature could not determine that the state’s electors should be appointed by the King of England or by the Pope or by the United Nations General Assembly.  By precisely the same principle that would bar such methods, the appointment power may not be delegated to the voters of other states.

Thanks to Andrew Hyman for the pointer.  Andrew independently made a similar argument on this blog a while back: Let’s Not Overthink the National Popular Vote Compact Which is Clever but Cannot Work.  An excerpt:

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

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

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

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

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

I also think the National Popular Vote Compact is unconstitutional, at least absent the consent of Congress, under the agreement or compact clause of Article I, Section 10, para. 3, as argued by Michael Morley (and endorsed by me) here.  My thoughts from that post:

The threshold originalist objection [to the NPVC] is that Article I, Section 10 says that "no State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State."  Modern law has watered down that clause somewhat in nonoriginalist ways (though not, in my view, enough to validate the National Popular Vote Compact); but for originalists (or even just textualists) the clause seems unavoidably conclusive.  Still, it's worth thinking about whether the Compact would be unconstitutional even if Congress approved it.

One further objection might be that the Compact, despite its name, is actually a treaty.  A different clause of Article I, Section 10 says that "No State shall enter into any Treaty" (presumably even with Congress' consent).  Though the Constitution thus recognizes a difference between treaties on one hand and agreements or compacts on the other, it is unhelpful on the difference.  I made some effort to work out the originalist difference in my long-ago article on executive agreements (where the issue also comes up) but that effort was not terribly satisfactory.

But, I would add, Congress isn't likely to approve the NPVC so the treaty issue seems academic.  And, as Andrew Hyman points out, if he and Professor Lowenstein are right, the compact clause argument is academic as well, since a compact (like a treaty) obviously can't violate the Constitution.

Mark Moller & Lawrence Solum: The Article III "Party" and the Originalist Case against Corporate Diversity JurisdictionMichael Ramsey

Mark Moller (DePaul University - College of Law) & Lawrence B. Solum (University of Virginia School of Law) have posted The Article III "Party" and the Originalist Case against Corporate Diversity Jurisdiction (William & Mary Law Review, Vol. 64, No. 5, 2023) (101 pages) on SSRN.  here is the abstract:

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this article and a previous one, we develop the first sustained originalist critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And so corporate litigants might preserve their access to diversity jurisdiction if that jurisdiction can vest through diverse shareholder citizenship.

In this article, we consider whether corporations can indeed preserve access to diversity jurisdiction via this route. We conclude they cannot. From an originalist perspective, shareholders are not parties to Article III “controversies” that proceed in the corporate name. In such controversies, shareholder citizenship cannot establish diversity jurisdiction.

The result of our analysis is that corporations are not citizens, and they normally can’t use shareholder citizenship to access diversity jurisdiction either. It follows that general corporate diversity jurisdiction is not authorized by the constitutional text.

Michael Mannheimer: Police Violence and the Original Meaning of 'Due Process of Law'Michael Ramsey

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posed Police Violence and the Original Meaning of 'Due Process of Law' (Northern Kentucky Law Review, forthcoming) (28 pages) on SSRN.  Here is the abstract:

Two different sources of law constrain police violence: state substantive law and the Constitution. State criminal law provides defenses – self-defense, defense of others, and the law enforcement defense – when police use of violence would otherwise constitute assault, murder, or other crimes. The Fourth Amendment constrains police use of violence to seize people. Lawyers, judges, and legislators often conflate the two, believing that, because the Supremacy Clause typically makes federal law supreme over state law, the constitutional standards must be woven into, or even displace, state law.

This is problematic for at least two reasons. First, the Fourth Amendment applies only where a person has been “seized.” Thus, preemption of state law by the Fourth Amendment might result in virtually no protection at all for victims of unjustified police violence in non-seizure situations. Second, state law criminal defenses have for centuries permitted violence only as a last resort, through the requirements of necessity, imminence, and proportionality, which are necessary to a successful justification claim. But the Fourth Amendment standard does not contain these constraints, at least not explicitly. As a result, judges who treat the Fourth Amendment as supplying the relevant standard for justifiable police use of violence have unwittingly abrogated this central idea that violence is justified only if absolutely necessary. This has led some state courts to impliedly reject 700 years of Anglo-American law with the stroke of a pen, a result that can be characterized, without hyperbole, as not just wrong but monstrously wrong.

One solution is to stop thinking about police violence as a Fourth Amendment issue and think of it instead as a Fourteenth Amendment “due process of law” issue. Although virtually every lawyer and judge alive today has been taught that the Fourteenth Amendment incorporates the Fourth “jot-for-jot,” that notion is problematic when one looks at what the framers and ratifiers of the Fourteenth Amendment actually thought and said. They contemplated instead that the Due Process Clause would require police to obey state law, and state prosecutors and judges to hold them to account when they don’t. Thus, a separate body of Fourth Amendment constraints is superfluous. The question in every case, regardless of whether it involves a “seizure,” should be whether police obeyed state law in using violence – and, if not, whether they have been prosecuted and punished. Instead of state law tracking the Constitution, we should think of the Constitution as tracking state law.

The Judicious Use of Corpus LinguisticsDavid Weisberg

The abstract of an article by Profs. Clark Cunningham and Ute Römer—“Can a President Be Impeached for Non-Criminal Conduct? New Linguistic Analysis Says Yes”—has been posted by Prof. Michael Ramsey, who agrees with the affirmative conclusion in the title.  I too agree with that conclusion (see, here).  But what I find most significant about the Cunningham & Römer article is that it is an instance of an extremely rare phenomenon: the appropriate use of Corpus Linguistics.  I believe CL is almost always invoked inappropriately.  Here is why I think the article is an exception to the rule.     

In a paper published on SSRN, I posited what I call the Paradox of Originalism:

If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

The Paradox, I submit, is self-evidently true.  A few additional moments of reflection reveal that any originalist who presumes that, because of the antiquity of the Constitution, all the words and phrases in it might have time-dated meanings that differ from their current meanings, will inevitably be caught in an infinite regress. 

The paradigmatic instance of the Paradox is found in Justice Scalia’s majority opinion in D.C. v. Heller, where he investigated the meaning in the Second Amendment of the words “Arms” (554 US at 581), “keep” (554 US at 582), and “bear” (554 US at 584).  Justice Scalia began his examination of each of those words by turning to the 1773 edition of Dr. Johnson’s dictionary; he learned, e.g., that “Arms” is defined therein as “[w]eapons of offense, or armor of defense.”  But that dictionary pre-dates the Constitution itself.  Therefore, any conscientious originalist who entertains the presumption referred to in the Paradox (and why would Justice Scalia immediately turn to a dictionary published in 1773 unless he were entertaining that presumption?) would again have to resort to late-18th-century literary materials to determine the meaning of the words “weapons,” “offense,” “armor,” and “defense” in 1773.  And, once those four words have been defined, the words in their own definitions will have to be defined, etc., ad infinitum.

It’s similarly self-evident that, if one presumes that all the words and phrases in the Constitution might have time-dated meanings different from their current meanings, the CL methodology also exemplifies the Paradox of Originalism and the infinite regress it generates.  This is entirely predictable, because CL creates what are in effect custom-made dictionaries that are contemporaneous with an antique text. 

Practitioners of CL believe that, when studying an antique text, the proper way to ascertain its meaning is to compile a corpus of contemporary literary materials in which key words or phrases in the target text appear, and then to determine, based on that corpus, what are the predominant or ordinary senses of the target text. But the literary materials in the corpus are by design roughly as ancient as the target text, and so the question arises: how can we be sure that we correctly understand the key words and phrases in the corpus?  To achieve certainty, we must create new corpora  corresponding to those new target terms, and now we’ve entered into an infinite regress.

There are, nevertheless, instances where one might very usefully consult contemporaneous literary materials, including dictionaries and corpora, to ascertain time-dated meanings of antique texts.  Those instances, however, are not generated by presumptions about the mere possibility of time-dated meanings that differ from current meanings.  Rather, they arise out of two specific circumstances of which I am aware (and there may be other circumstances of which I’m not aware).

One circumstance would be where a word or phrase is so archaic and obsolete that we have no clear idea what it meant when it was used in the Constitution.  For example, Article I, Section 10 discusses “Letters of Marque and Reprisal” and “Bill of Attainder,” among other things.  These phrases are obviously legal terms of art that were current in 1789, but are not current today.  It makes perfect sense to flesh out their meaning by resorting to contemporaneous literary materials, but not because we entertain some general presumption about all the words and phrases in the Constitution.  It is, rather, because we are very much aware that we have no clear understanding of what those particular phrases, which are now obsolete, meant in 1789.

A second circumstance would arise where the language of the Constitution, taken in full context, seemingly contradicts our contemporary understanding of its meaning.  An example would be the language of Article II, Section 4, which recites that impeachable offenses are: “Treason, Bribery, or other high Crimes and Misdemeanors.”  This is, of course, the phrase that Cunningham & Römer examine in their article.  And it certainly invites close examination, because in today’s legal terminology a “misdemeanor” is a relatively minor offense, and a “high misdemeanor,” to which the constitutional text seems to refer, would be a present-day oxymoron.

In sum, both Justice Scalia’s rather old-fashioned reliance on literary materials such as Dr. Johnson’s dictionary and the new-fangled methodology of CL will inevitably fall afoul of the Paradox of Originalism, if those methodologies are deployed because someone entertains a presumption about the mere theoretical possibility of time-dated meanings that differ from current meanings.  But both those methodologies might properly be used either when we reasonably believe we have little or no understanding of long-obsolete words and phrases in the Constitution, or when our understanding of the words and phrases, considered in context in the Constitution, makes no sense.

John Vlahoplus: Insurrection, Disqualification, and the Presidency [Update: With a Comment]Michael Ramsey

John Vlahoplus (independent) has posted Insurrection, Disqualification, and the Presidency (13 Brit. J. Am. Legal Stud. (forthcoming)) (28 pages) on SSRN.  Here is the abstract:

Section 3 of the Fourteenth Amendment provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in insurrection may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House. The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States?

This Article makes the case that the President is an officer of, and holds an office under, the United States for those purposes. It contributes to the debate over the provision’s reach by setting out the broad case for Section 3’s application to Presidents and the Presidency, utilizing text, purpose, legislative history, canons of construction, ordinary usage, and contemporaneous judicial and executive interpretations.

The Article demonstrates public understandings before and after ratification that Section 3 bars eligibility to the Presidency, both in general and for the most important disqualified rebel—Jefferson Davis. It catalogues descriptions of Presidents as officers of the United States from Washington in 1794 to Jefferson, Jackson, Van Buren, Harrison, Polk, Taylor, Fillmore, Buchanan, Lincoln, Johnson, Grant, and Garfield, many of which occurred in the context of the President’s election, constitutional position, and role in preventing domestic violence, preserving the Union, and enforcing the law during Reconstruction. Finally, it ties related Reconstruction statutes, legislative history, and contemporaneous judicial and executive interpretations into the broad case that Section 3 bars faithless Presidents from again taking the oath to “preserve, protect and defend the Constitution of the United States” until Congress permits.

On the relationship between this article and the views of Professors Tillman and Blackman on the key constitutional terms, the article comments (p. 5, footnotes omitted): 

Professors Josh Blackman and Seth Barrett Tillman have closely read the offices and officers language in the Constitution of 1788. They conclude that within that document the term “Officers of the United States” refers “to appointed positions in the Executive and Judicial Branches,” and the term “Office . . . under the United States” refers to those positions plus “non-apex appointed positions in the Legislative Branch.” Under their reading, the terms exclude elected officials and elective positions. The President is not an officer of, and does not hold an office under, the United States. After all, for example, Article II Section 3 provides that the President “shall commission all the Officers of the United States,” but Presidents do not commission themselves.

This Article takes no position on whether Professors Blackman and Tillman correctly interpret the 1788 Constitution. Instead, it addresses the use of those terms after 1788 including proximate to the ratification of the Fourteenth Amendment in 1868, a time of Reconstruction that differed radically from the original Founding. ... This Article makes the case that in the context of the Civil War and Reconstruction, the Section 3 terms include elected officials and elective positions generally, and the President and Presidency specifically.

COMMENT FROM ANDREW HYMAN:  John Vlahoplus mentions that, "This Article takes no position on whether Professors Blackman and Tillman correctly interpret the 1788 Constitution." However, John's article would present a stronger argument if he could prove that the 1788 Constitution did use the term "officer of the United States" in the Commissions Clause in a way that is consistent with the same term's use in the 1868 constitutional amendment.  This is easy to do, in two steps.  First, the verb "commission" was understood in 1788 as synonymous with "empower," and in this particular context it meant to give a writ conferring some right or authority, so it was (and is) intrinsically impossible for the president to commission himself as president.  Second, it is an ancient maxim that the law does not require impossibilities; if the president is an officer under the United States, then the Commissions Clause must have a presidential exception, according to both common sense as well as the ancient maxim that the law does not require impossibilities.

The Civil and Military Power of a State to Resist Unlawful ImmigrationAndrew Hyman

There's much news this week about an impending increase in the already-unprecedented level of unlawful immigration, as pandemic-era policies are relaxed by the Biden administration.  The state of Texas is a border state, and The Hill reported on May 8 about action by the Texas governor:  Abbott deploying 'tactical border force' as Title 42 nears end.  Governor Abbott already declared an "invasion" in November, "and moved to invoke invasion clauses of the U.S. and Texas constitutions to allow him to boost security at the border."  Certainly many of the undocumented immigrants are simply seeking better lives for themselves and their loved ones, but there are also advantages to enforcing laws, having borders, avoiding chaos, and providing sufficient foreign aid to uplift other countries.

There are two ways that Texas and other border states can potentially try to curtail illegal immigration, and those two ways are civil and military.  The influx appears to be too daunting and formidable for the Biden administration to adequately address (assuming they want to address it) without separate action by the border states, either civil or military, or both.  Interesting legal questions arise about the extent of a state's authority on both the civil and military sides.  

On the civil side, the ability of states to reduce illegal immigration greatly shrank in the case of Arizona v. United States (2012).  Writing at National Review last month, Jim Geraghty called that SCOTUS opinion a "legal buzzsaw" and I agree with those who say that 5-3 decision was wrongly decided.  The Texas attorney general is suggesting it's time to test that precedent.  The correctness of that Arizona case hinges partly on whether it relied upon the correct clause of the Constitution, and I strongly suspect it did not.  Justice Kennedy wrote for the Court:

 

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens....This authority rests, in part, on the National Government’s constitutional power to "establish an uniform Rule of Naturalization," U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations....

 

If the Naturalization Clause really were the main clause to deal with illegal immigration, then its requirement of a "uniform rule" would certainly seem to argue against concurrent state power, and for a uniform national policy.  But naturalization is all about giving the rights of citizenship to foreigners, not about whether people who have no path to naturalization may set foot in the United States, or whether those people can remain in the United States indefinitely with a status other than citizenship.  The Constitution gives Congress power over illegal immigration because of another  clause that has no "uniform rule" requirement, and that clause is the Define and Punish Clause, which gives Congress power to "define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations."  In his treatise The Law of Nations that was constantly in the hands of the framers, Vattel wrote,

 

[T]he sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases, or to certain persons or for certain particular purposes, according as he may think it advantageous to the state.  There is nothing in all this that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. 

 

Yes, federal laws must be controlling on this subject, but state laws that are consistent with those federal laws should not be considered as pre-empted. Blackstone wrote: "by the law of nations no member of one society has a right to intrude into another ... [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient."  Mistaken reliance upon the Naturalization Clause, and its attendant requirement of national uniformity, has sidelined the Define and Punish Clause, and shut out the states (especially the border states) from a meaningful role in using their ordinary civil justice system to reduce illegal immigration.  That's the main problem, in my view, that is hamstringing state civil power. 

Regarding states' military power to resist illegal immigration, the Constitution says, "No State shall, without the Consent of Congress ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."  States are thus entitled to use military power and personnel in self-defense.  A key question is what constitutes an "invasion."  No modifiers are used in the Constitution, such as "invaded by armed forces of a foreign government."  It would certainly be odd if the forces of a foreign government could simply leave their weapons at home, and thereby deprive a U.S. state of power to resist their incursion.  In Federalist 43, Madison made clear that foreign governments need not be involved: "A protection against invasion is due from every society to the parts composing it.  The latitude of the expression used here seems to secure each state, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors...."  The Constitution's lack of modifiers on the words "invader" and "invasion" signify a deliberate latitude of expression.  It is unfortunate that the civil power of the states has been so constricted by judicial error that we have to discuss the military power now as well, and the civil power alone might be sufficient were it not for cases like Arizona v. United States.

 

MICHAEL RAMSEY adds: Rob Natelson is the leading academic proponent of the view that the define and punish clause gives the federal government power over immigration -- see especially this article: The Power to Restrict Immigration and the Original Meaning of the Constitution’s Define and Punish Clause.  I am becoming persuaded by this view.

 

DAVID WEISBERG adds: For obvious reasons, we all hesitate to focus on the provisions of the Constitution which dealt, in a euphemistic, circumlocutory manner, with slavery.  Nevertheless, I think it is worth noting that Article I, Section 9, Clause 1 states: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to [1808.]”  This text clearly implies that the identity of the persons or classes of persons who may properly migrate is, at least to some degree, determined by those who “the States … shall think proper to admit[.]”  Thus, the text certainly bolsters Andrew Hyman’s contention that Arizona v. United States is “hamstringing state civil power.”

Seth Barrett Tillman & Josh Blackman: Offices and Officers of the Constitution, Part IIIMichael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) & Josh Blackman (South Texas College of Law Houston) have posted Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses (62(4) S. Tex. L. Rev. 349–454 (2023)) (106 pages) on SSRN.  Here is the abstract:

This Article is the third installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution’s divergent “Office”- and “Officer”-language. This third installment will analyze the phrase “Officers of the United States,” which is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause.

This Article proceeds in six sections. Section I describes our methodology, which includes textualism, original public meaning originalism, original methods originalism, and consideration of historical practices during the founding-era and later-in-time. Section II explains that the phrase “Officers of the United States” is defined by the Appointments Clause. This phrase refers to appointed positions in the Executive and Judicial Branches. Our position here is supported by the drafting history of the Appointments Clause, as well as Supreme Court precedent. Section III turns to the Impeachment Clause, which applies to “civil Officers of the United States.” This latter category refers to non-military appointed positions in the Executive Branch and Judicial Branch. Members of Congress, as well as appointed positions in the Legislative Branch, are not “civil Officers of the United States,” and therefore such positions cannot be impeached.

Section IV considers the Commissions Clause, which requires the President to commission “all the Officers of the United States.” There is a longstanding practice of the President’s commissioning appointed positions in the Executive Branch and Judicial Branch. But there is no evidence the President has ever commissioned an elected official, including himself. Section V analyzes the Oath or Affirmation Clause, which suggests that Senators and Representatives, as well as the President, are not “Officers of the United States.” Finally, Section VI focuses on the Recess Appointments Clause. This provision does not use the phrase “Officers of the United States,” and it is not clear whether recess appointees are “Officers of the United States.”

These eight parts support our position: in the Anglo-American legal tradition, the phrase “Office under the . . .” was, and remains, a commonly-used drafting convention that refers to appointed officers. This phrase does not refer to elected officials.

UPDATE:  At Legal Theory Blog, Larry Solum says "Highly recommended."

Thomas Merrill on the Major Questions DoctrineMichael Ramsey

Thomas W. Merrill (Columbia University - Law School) has posted The Major Questions Doctrine: Right Diagnosis, Wrong Remedy (41 pages) on SSRN.  Here is the abstract:

The Supreme Court has recently adopted the “major questions” doctrine, the gist of which is that courts should not uphold novel agency efforts to regulate questions of economic and political significance absent clear congressional authorization. Although the new doctrine has been attacked as an attempt to revive the nondelegation doctrine, the better view is that it responds to two perceived failings of the Chevron doctrine: that it contributes to instability in the law and provides an inadequate basis for courts to police agency deviations from the scope of their regulatory authority. The article criticizes aspects of the major question doctrine for asking courts to engage in a type of political punditry and proposes two more conventional modifications to the Chevron doctrine that would preserve the traditional role of courts as legal interpreters.

And from the article (pp. 10-11, footnotes omitted), thoughts about the relationship between the major questions doctrine and the nondelegation doctrine:

[I]t makes no sense as a conceptual matter to enforce the nondelegation doctrine with a requirement of clear congressional authorization. The nondelegation doctrine rests on the proposition that the Constitution gives Congress the exclusive power to legislate, and therefore Congress cannot transfer this authority to another branch of government. Over the
years, the Court has implicitly defined “to legislate” (in the nondelegation context at least) to
mean to transfer great discretionary power to act with the force of law to another branch of
government. Hence the proposition that if Congress cabins the transfer of power with an
“intelligible principle” (or limits it to “filling up the details”), there has been no violation of the
Constitution, because there has been no transfer of great discretionary power. But if Congress
has exclusive authority to legislate, and cannot transfer this to another branch of government by giving it great discretionary power, it makes no sense to say Congress can transfer great
discretionary authority by clearly authorizing the transfer.

Putting this together, the case for characterizing the major questions doctrine as an effort
to revive the nondelegation doctrine in the guise of a “clear statement rule” is weak. There
seems to be a tendency to take the Gorsuch concurrences as the true expression of the Court’s
reasons for adopting the major questions doctrine.41 To be sure, Gorsuch writes with more self assurance and grounds his arguments in jurisprudential ideas wrapped in a quasi-originalist gloss. But the majority opinion in West Virginia and the three per curiam opinions are opinions for the Court and carry the full force of precedent. Justice Gorsuch’s concurring opinions garnered no more than three votes, and thus have no binding authority. The fact that the nondelegation doctrine is not mentioned in any of the majority opinions would seem to belie the claim that a revival of that doctrine is the real objective of the Court.

(I note this in particular because it is somewhat contrary to my own tentative views about the relationship between two doctrines, though I hesitate to disagree with Professor Merrill on anything.)

Legal Theory Lexicon on Originalism (Revised)Michael Ramsey

At Legal Theory Blog, Larry Solum has a revised Legal Theory Lexicon entry for Originalism.  Some excerpts relating to the development of originalist theory:

The Origins of Originalism

No one scholar or judge deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren Court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. The landscape changed again in the late 1980s, when Justice Antonin Scalia suggested that originalists should shift their attention from "the original intentions of the framers" to the "public meaning of the constitutional text" or "original meaning."

The New Originalism

The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. One of the important moves was the shift from "original intentions" to "original public meaning," but two other developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court. (Ackerman does not call himself an "originalist," but many of Ackerman's former students do work that is implicitly or explicitly originalist.)  Second, Randy Barnett (the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists.  The most recent development in this dynamic is Jack Balkin's attempt to reconcile originalism with living constitutionalism.  Balkin's article, "Abortion and Original Meaning" (link provided below) elicited a good deal of commentary and criticism: his recent book, Living Originalism, further develops his take on originalist theory and applies it to a variety of topics.

And from later on:

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Ilan Wurman: Reversing IncorporationMichael Ramsey

Ilan Wurman (Arizona State University - Sandra Day O'Connor College of Law) has posted Reversing Incorporation (99 Notre Dame Law Review (2023 forthcoming)) (88 pages) on SSRN.  Here is the abstract:

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and securing such rights. The record reveals that the antislavery and Republican concern, both before and after the adoption of the Fourteenth Amendment, was equality in civil rights however defined and regulated under state law. In making this claim, this Article identifies a significant conceptual error pervasive in the literature: conflating the rights the first eight amendments secure with the first eight amendments themselves. Merely identifying the freedom of speech or the right to bear arms as a privilege or immunity of United States citizenship tells us nothing about how various constitutional provisions would guarantee and secure them.

Ilya Somin on Justice Scalia's Unpublished Dissent in KeloMichael Ramsey

At Volokh Conspiracy, Ilya Somin: Justice Scalia's Unpublished Dissent in Kelo v. City of New London.  From the introduction:

... [O]ne of the most interesting revelations in Stevens' files is that Justice Antonin Scalia wrote a dissent in the case, which he eventually chose not to publish. In this post, I reprint Scalia's dissent in its entirely (it's short!), and then offer some comments.

And from later on:

Ironically, just 17 days before Kelo was issued, and nine days before Scalia circulated his dissent, the Supreme Court issued its decision in Gonzales v. Raich, which held that Congress' power to regulate interstate commerce was so broad that it allowed it to ban the possession of medical marijuana that had never crossed state lines or been sold in any market, even within a state. Justice Stevens was the author of the majority opinion in Raich, just like in Kelo. Raich was a deeply flawed ruling that expanded federal power further than any previous Supreme Court decisions, and ran roughshod over state diversity and autonomy. There is an obvious tension between Stevens' paeans to state and local autonomy in Kelo and his endorsement of extraordinarily broad federal power in Raich.

Scalia could and should have called out Stevens and the four other justices who were in the majority in both Raich and Kelo on this contradiction. But he was ill-positioned to do so, because he himself had also voted for the federal government in Raich, albeit in a concurring opinion that used different reasoning than the majority. In my view, this was one of Scalia's worst opinions.

In sum, Scalia was right to highlight the flaws in Stevens' appeal to federalism and local diversity. But his own role in the Raich case prevented him from pointing out the full extent of the contradiction in the majority's position.

Agreed.  Justice O'Connor's dissent in Raich is entirely persuasive to me from an originalist perspective, and also shows why the Court would not have needed to overrule any cases to reach it (I think that was Scalia's main concern).  I also think Scalia later came to regret his Raich concurrence, or at least its implications, as indicated by his participation in the joint dissent in NFIB v. Sebelius.

John McGinnis Reviews "Nine Black Robes" by Joan BiskupicMichael Ramsey

At Law & Liberty, John McGinnis: Misreading the Court.  From the introduction:

... [T]he Court’s opinions are necessarily refracted for most citizens through journalists and academics, almost all of whom today are hostile to its views and to the justices in the majority. As a result, the current Court majority has far more difficulty than past Courts in putting its case to the American people.

Joan Biskupic’s Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences exemplifies the many ways that journalists today hinder the transmission of the Roberts Court’s ideas. Despite presenting itself as an account of the Court’s development since 2016, the book rarely describes the jurisprudential wellsprings behind the Court’s decisions, and when it does describe them, it is incorrect and biased. It also flattens and caricatures the justices most frequently in the majority as political actors who are moving the law in the direction of their political patrons. It also tends to personalize the justices’ disagreements, rather than recognizing the profound and legitimate contests over the nature of law.

The Roberts Court reflects the rise of originalism. Three of the justices—Thomas, Gorsuch, and Barrett—are originalists; Kavanaugh is likely an originalist; Alito is a self-described “practical originalist”; and Roberts has originalist sympathies. That does mean that in every case they will decide according to the original meaning: there is too much precedent in many areas to return fully to the original meaning of a provision. Nevertheless, by distinguishing and limiting non-originalist precedents, they do not infrequently move toward their view of original meaning.

Yet Biskupic does not explain the jurisprudential context. She rarely mentions originalism and when she does she gets it tendentiously wrong. For instance, she defines the “originalist approach as reading the Constitution in terms of its eighteenth-century understanding.” Originalism in fact asserts that the public meaning of a provision should be interpreted as it was fixed at the time it was adopted—a very different matter. First, what is relevant under originalism is not some diffuse understanding as Biskupic suggests, but the public meaning of its provisions. Second, the relevant time for fixing the meaning is the year that the provision at issue was adopted. Thus, not only is the meaning of the original Constitution fixed at a particular time—1789 specifically, not “the eighteenth century” generally—but subsequent provisions, like the Fourteenth Amendment, are fixed at the time that the Constitution was amended. Her definition makes originalism seem necessarily murkier than it is, and it also slights the important, more recent amendments—when we the people have exercised our enduring authority to change the Constitution. ...

The Trillion Dollar Coin (Again)Andrew Hyman

The New York Times reported on May 2 that Biden aides are debating whether the debt limit is constitutional: "Progressive groups have encouraged Mr. Biden to take actions meant to circumvent Congress on the debt limit and continue uninterrupted spending, like minting a $1 trillion coin to deposit with the Federal Reserve. Internally, administration officials have rejected most of them. Publicly, Biden aides have said the only way to avert a crisis is for Congress to act."  Besides the old trick of the trillion dollar coin, a new trick under consideration is something called "premium bonds."  
The main legal problem I see with either of these gimmicks is that they would do much more than get us out of an impending debt standoff.  They would also enable the executive branch to raise as much money as it thinks it needs (e.g. for the military), in perpetuity, without need for Congress to enact any more taxes, or authorize any more borrowing.  All the executive would need is a compliant minority in Congress to block any congressional attempt to reclaim the power to fill up the purse.

Both gimmicks would also require absurd readings of pertinent statutes.  The idea of a trillion-dollar coin, for example, arises from a statute that everyone agrees was written for the purpose of selling coins to numismatists.  As Neil Buchanan and Michael Dorf have observed, "the very act of minting trillion-dollar coins looks so cartoonish and desperate that it could undermine faith in the government’s ability to repay its obligations...." 

That numismatic statute (31 U.S. Code § 5112k) says, “The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.”  To avoid the absurd reading that would allow a trillion dollar coin, contrary to the original intent, I would interpret this statute to mean that whatever denomination is selected for the coin, the denomination must be reasonably related to the value of the platinum bullion. The word “bullion” is often defined as the platinum, gold or silver considered as so much metal.  Likewise, the word “proof” in the context of coinage usually means that it is not intended for circulation.

There is another alternative here that involves no gimmicks.  The House of Representatives already approved a debt increase last month.  President Biden could therefore carry out his constitutional duty under the Fourteenth Amendment ("the public debt of the United States...shall not be questioned") by urging the Senate to approve the House bill, or an amended version that can get through the House again.

MICHAEL RAMSEY comments:  The problem of the trillion dollar coin again reflects how, in the absence of limits on delegation, careless congressional delegation combined with aggressive executive overreading of statutes can break down constitutional limits on presidential power.  Even a relatively modest nondelegation rule would prevent Congress from simply handing over to the President its power to "coin Money, [and] regulate the Value thereof" without any limits or guidelines.  But, as a second best option, it would seem that the current Court's version of the major questions doctrine reaches the same result: surely the decision to mint a trillion dollar coin is a major question that is not clearly envisioned by the statute.  That's why I find the major questions doctrine a useful and legitimate tool, despite some originalists' reservations about it.

ANDREW HYMAN adds:  I believe the MQD is one way of doing it, but the older way works too: i.e. choosing a plausible non-absurd interpretation.

MIKE RAPPAPORT comments: My view here is close to Andrew Hyman's.  Yes the MQD would cut back on this "aggressive overreading" of the statute, but (1) the MQD is not originalist statutory interpretation and (2) an originalist interpretive canon -- one does not hide elephants in mouseholes -- would address the problem.  (That canon is weaker than the MQD.)  The provision seems obviously intended to allow the coining of money rather than to allow the borrowing of money.  Thus, it makes sense to find the limitation that Andrew mentions in the provision.  Once the nonoriginalist, acontextual, aggressive interpretations are resisted, I do not think the MQD is needed.   

Michael L. Smith: Originalism and the Meaning of 'Twenty Dollars'Michael Ramsey

Michael L. Smith (University of Idaho College of Law) has posted Originalism and the Meaning of 'Twenty Dollars' (Creighton Law Review, Vol. 56, No. 4, (2023 forthcoming)) (21 pages) on SSRN.  Here is the abstract:

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment’s reference to “twenty dollars” means—both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what “twenty dollars” means, originalism instead leads to a range of highly divergent possibilities. The original meaning of “twenty dollars”—applied today—may mean anywhere from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars. In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of actual actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what “twenty dollars” means. Moreover, if originalism cannot tell modern legal actors what “twenty dollars” means, there’s little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like “due process,” “cruel and unusual punishment,” “equal protection,” and other provisions that draw the bulk of scholarly attention and constitutional litigation.

Professor Smith suggests the following possibilities (pp. 14-15): 

[1] The present-day value of 18th-century pieces of eight, as determined by expert appraisers or statistical evidence regarding purchases or auctions of Spanish silver dollars dating back to the
founding era and resulting in potential values ranging from $1,000 to $7,000;

[2] Twenty of Spain’s modern units of currency, which works out to twenty euros;

[3] The present value of the amount of silver that needed to be included in founding-era dollar coins, which works out to approximately $370.80;

[4] The modern purchasing power amount of founding era dollars, which works out to anywhere between $400 and $7,000;

[5] Whatever modern reference fits sufficiently with the founding-era “sense” of “twenty dollars,” which may refer to the amount’s founding-era purchasing power, the modern value of an equivalent amount of silver, or other referents that one may seek to connect to the phrase;

[6]  The present referent of the original sense of “twenty dollars,” which refers to a unit of currency that is to be defined by United States law—a value equivalent to twenty United States dollars at the time of interpretation.

It's an interesting puzzle.  I pick [6].  The original public meaning of "dollar" in the Seventh Amendment was the monetary unit of currency of the United States, which Congress had power to define by Article I, Section 8, cl. 5.  [3] seems like a plausible alternative, though.  The others do not.

I disagree with Professor Smith's broader claim that the twenty dollar puzzle undermines originalism as an approach to adjudication.  It may be that the Seventh Amendment is ambiguous in a narrow band (as between 20 current dollars and, at most, $7,000).  But it's not ambiguous as to a much larger category of claims.  A claim of, say, $20,000 in current dollars clearly requires a jury trial.  A claim of $15 does not.  Originalism is not going to give clear answers in every case, but it can give clear answers in many cases.

Lawrence Rosenthal: Litigating Original Meaning from Heller to BruenMichael Ramsey

Lawrence Rosenthal (Chapman University, Dale E. Fowler School of Law) has posted Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller to Bruen (American University Law Review, Vol. 73, No. 2, forthcoming 2023) (67 pages) on SSRN.  Here is the abstract:

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the Second Amendment, in District of Columbia v. Heller. Last Term, the Court, in New York State Rifle & Pistol Association v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need.

There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Bruen. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” These errors seriously distorted the Court’s purportedly originalist analysis.

Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it,

Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation.

Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

And here is the conclusion, with which I entirely agree:

Originalism, especially in the view of its advocates, is a deeply theorized approach to constitutional interpretation. Those who litigate in any court dominated by originalists—or obligated to adhere to originalist precedent—must frame their arguments in a manner consistent with originalist theory. Originalist theory, in turn, requires more than cherry-picking a handful of historical precedents that seem roughly analogous to a contemporary regulation under constitutional attack.

Perhaps the attitudinal model is so powerful that even litigating strategies solidly rooted in originalist theory cannot prevail when they seek outcomes inconsistent with the policy or political preferences of the current majority of the Supreme Court. Nevertheless, unless lawyers develop litigating strategies rooted in originalist theory when litigating before an originalist Court, we may never know whether it is the lawyering or the attitudinal model that explains the Court’s outcomes. We ought to find out.

Ilan Wurman Responds to Commentary on his Slaughter-House EssayMichael Ramsey

At Law & Liberty, Ilan Wurman responds to commentary on his essay on overruling the Slaughter-House Cases: Long Live Formalism.  From the introduction: 

In their thoughtful responses to my lead essay, Evan Bernick, James Rogers, and Allen Mendenhall do not challenge my reading or historical account of the Privileges or Immunities Clause, according to which the clause would be an equality provision that cannot provide support for the incorporation of the Bill of Rights. Instead, they make a number of orthogonal, albeit important and interesting, points—whether conservatives should want to revive the clause, whether my methodology is consistent with modern originalism, whether the Slaughter-House Cases would have come out the same way anyway, and whether the reconstruction amendments are even validly ratified. 

Let me start with Bernick, who does raise issues that might cast doubt on my interpretation of the Privileges or Immunities Clause. In response to my claim that the clause was intended to constitutionalize the Civil Rights Act of 1866, Bernick correctly points out that many (if not most) Republicans believed that the Act was already constitutional under the Thirteenth Amendment. But that does not answer the problem raised by James Garfield and others: that even if the Act were authorized by the Thirteenth Amendment, nothing would prevent future Congresses from repealing it.

More to the point, however, this claim about the Thirteenth Amendment provides further support for my reading of the Privileges or Immunities Clause. That is because no one thought the Thirteenth Amendment incorporated the Bill of Rights against the states. No one thought the abolition of slavery meant that federalism was also abolished and that Congress could define contract and property rights in all the states. All it meant, even under the Republican view, was that the formerly enslaved were now citizens and that Congress could compel the states to treat those citizens equally with their white citizens. Of course, that broad reading of the Thirteenth Amendment that authorized the Civil Rights Act (which insisted on this equality) did not have universal support, did not obviously follow from the text, and did not solve the problem of future Congresses repealing any enforcement legislation. Hence the Fourteenth Amendment was necessary, and in this sense did much more than merely “confirm” the constitutionality of the Civil Rights Act. It secured it against all counterarguments and against future repeal.

And here are the commentaries on the initial essay:

James R. Rogers: What Would It Mean to Reverse Slaughter-House?

Evan Bernick, The Constitutional Political Economy of Carcass Disposal

Allen Mendenhall, Should We Kick the Sleeping Dog?

James Pfander: Public Law Litigation in Eighteenth Century AmericaMichael Ramsey

James E. Pfander (Northwestern University School of Law) has posted Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement for a Partisan World (Fordham Law Review, Vol. 92, 2023) (30 pages) on SSRN.  Here is the abstract:

For some time, the Supreme Court has used standing doctrine to limit the authority of federal courts to entertain private suits aimed at enforcing public norms. In its most recent iteration, TransUnion LLC v. Ramirez, the Court invalidated a federal consumer protection statute on the theory that it wrongly empowered suit by individuals who lacked the requisite injury in fact. Shutting down private litigation was said to advance separation of powers values and to protect the enforcement discretion of a unitary executive branch. The Court characterized private enforcement as a novel feature of the 1970s, a time the Court viewed with evident suspicion as one that inaugurated interest group litigation.

In truth, the tradition of interest group enforcement of public norms extends to the earliest days of the Republic. During the 1790s, Quakers and other anti-slavery activists secured federal legislation prohibiting American involvement in the international trade in enslaved people. Like other legislation of that period, the 1794 statute empowered both the federal government and private informers to enforce the law. The ensuing litigation, brought by private informers associated with such groups as the Providence Abolition Society, led to the forfeiture and sale of the offending vessels in the admiralty courts of Rhode Island and elsewhere. Drawing on federal archives, this Article recounts a history in which all three branches of the federal government – Congress, courts, and executive branch officials – viewed private litigation through what were called “popular” actions as an uncontroversial tool for enforcing public norms. One finds no objections based on Article II or III of the Constitution.

(Via Dan Ernst at Legal History Blog.)

Clark Cunningham & Ute Römer: Can a President Be Impeached for Non-Criminal Conduct?Michael Ramsey

Clark D. Cunningham (Georgia State University College of Law) & Ute Römer (Georgia State University, Applied Linguistics) have posted Can a President Be Impeached for Non-Criminal Conduct? New Linguistic Analysis Says Yes (29 pages) on SSRN.  Here is the abstract:

“Few terms in constitutional law have been so fiercely contested as ‘high crimes and misdemeanors’ [in the impeachment provision].” Although most legal scholars argue that this phrase does not limit impeachment to criminal conduct, reconciling this conclusion with the constitutional text has been a challenge. In this article, co-authored by a law professor and a linguistics professor, we offer what we believe is a new and persuasive approach that arises directly from the constitutional text itself for extending the scope of impeachment to non-criminal conduct. We reach this conclusion by applying the science of linguistics to computer-assisted review of digitized texts written around the period when the Constitution was drafted and ratified. The result of this empirical research is the proposal that “other high crimes and misdemeanors” in the constitutional text should be interpreted as “other high crimes” and “other high misdemeanors.” Our linguistic analysis further establishes that high misdemeanor was a phrase used during the founding era to refer to non-criminal misconduct that requires removal from office. We corroborate this analysis with historical research showing that during the century following the founding era, the U.S. House of Representatives recurrently enacted articles of impeachment using the term “high misdemeanor” to refer to non-criminal misconduct affecting governance.

This has been my view for a while.  In addition to the historical meaning of "misdemeanor" in the context of officeholders, it would be structurally odd if the President could not be impeached for unconstitutional actions (which often would not be criminal).  It's interesting to see it supported by linguistics analysis.

Lawrence Solum & Randy Barnett: Originalism after Dobbs, Bruen, and Kennedy (Revised Version)Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) and Randy E. Barnett (Georgetown University Law Center) have posted a revised version of their article Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition (Northwestern University Law Review, Vol. 118, No. 1, 2023) (56 pages) on SSRN.  Here is the abstract: 

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

This is the third version of the paper. It replaces a prior version and contains substantial revisions, especially with respect to the discussion of Bruen.

(Via Legal Theory Blog.)

The discussion of Bruen in particular is usefully read along with this article by Joseph Blocher & Eric Ruben: Originalism-by-Analogy and Second Amendment Adjudication.

Joel Alicea: The Originalist Jurisprudence of Justice Samuel AlitoMichael Ramsey

J. Joel Alicea (Catholic University of America — Columbus School of Law) has posted The Originalist Jurisprudence of Justice Samuel Alito (Harvard Journal of Law and Public Policy, Per Curiam, No. 13, 2023) (11 pages) on SSRN.  Here is the abstract:

Since Justice Alito’s appointment to the Supreme Court in 2006, constitutional theorists have struggled with how to characterize his approach to constitutional adjudication. Many scholars have argued that “Justice Alito is not to any significant extent an originalist” but is, instead, “a methodological pluralist” who uses both originalist and non-originalist tools of constitutional adjudication. Others have contended that “Justice Alito’s jurisprudence is originali[st], though not in the traditional sense.”

This disagreement largely stems from the failure of many commentators to appreciate the complex ways in which Justice Alito’s understanding of the judicial role affects his constitutional methodology. He sees judging as a “practical activity” rather than a “theoretical” endeavor, a “craft” rather than a “science.” Judging is a trade passed down through generations of eminent jurists and learned “primarily from experience and from the example of others,” not a set of postulates to be mastered or a series of axioms to be applied. This view of the judicial role leads him to a methodology that is attuned to characteristics of our legal tradition that have long defined Anglo-American judicial practice, such as respect for the limits that the adversarial system imposes on judicial decisions. What emerges is a methodology drawn from the Founding era rather than imposed on it, a methodology that, I will argue, is rightly described as originalist.

Indeed, I would go further: Justice Alito is uniquely positioned to address two of the most significant dangers originalism faces in the coming years. The first is the difficulty of changing current doctrine to better accord with the original meaning of the Constitution, a challenge the originalist justices will confront more and more now that they constitute a majority of the Court. The second is the recent tendency of originalism to become increasingly abstract and difficult to distinguish from its longtime foe, living constitutionalism.

My argument will, therefore, be surprising to many readers: far from being an ersatz originalist, Justice Alito is originalism’s best chance at remaining a viable theory of constitutional adjudication in the years to come.

The article is part of a symposium on Justice Alito's jurisprudence, which has an impressive list of contributors:

• Introduction: The Jurisprudence of Justice Samuel Alito – Robert P. George
• The Originalist Jurisprudence of Justice Samuel Alito – J. Joel Alicea
• The Contextual Textualism of Justice Alito – John O. McGinnis
• Judge Alito’s First Amendment Vigilance on the Third Circuit – Hon. Stephanos Bibas
• The Prudent Judge – Hon. Steven Menashi
• Erie and Contemporary Federal Courts Doctrine – Jack Goldsmith
• Justice Alito on Criminal Law – Kate Stith
• Justice Alito on Criminal Procedure – Hon. Andrew S. Oldham
• Justice Alito: A Justice of Foxes and Hedgehogs – Hon. Amul Thapar
• An Architect of Religious Liberty Doctrines for the Roberts Court – Gabrielle Girgis
• Samuel Alito’s Conservatism—Burkean and American – Adam J. White
• Reason and Fiat in the Jurisprudence of Justice Alito – Adrian Vermeule
• Justice Alito’s Free Speech Jurisprudence – Keith E. Whittington
• The Elevation of Reality over Restraint in Dobbs v. Jackson Women’s Health Organization – Kevin C. Walsh

Susan Carle: Liquidation and the Fourteenth AmendmentMichael Ramsey

Susan Carle (American University Washington College of Law) has posted Liquidation and the Fourteenth Amendment (Florida Law Review, forthcoming) (66 pages) on SSRN.  Here is the abstract:

In Dobbs v. Jackson Women’s Health Center and New York State Rifle & Pistol Association v. Bruen, the Court announced that henceforth it will interpret the Fourteenth Amendment by determining original public meaning at a very concrete level of specificity as based on laws in effect on the date of the Fourteenth Amendment’s ratification, an approach I refer to as maximum-specificity public meaning analysis. As Justice Barrett observed in her concurrence in Bruen, however, that approach will give rise to many difficult questions. James Madison’s concept of liquidation may provide a helpful though limited supplement in this situation, which can help avoid some of the problems maximum-specificity public meaning analysis promises to produce in its insistence on returning to outdated social mores and ignoring constitutional principles that are fundamental to constitutional law today but developed after the Fourteenth Amendment’s adoption.

This Article undertakes a preliminary exploration of what difference it might make to apply liquidation principles to the Fourteenth Amendment. This proposed approach bypasses the ongoing wars between various camps of constitutional interpretivists to find an area of partial agreement that can allow Fourteenth Amendment jurisprudence to develop without a wrenching return to nineteenth century mores.

Specifically, liquidation analysis applies to the interpretation and application of ambiguous constitutional provisions, especially ones that were novel or not well understood at the time of their adoption. Some key aspects of the Fourteenth Amendment are irrefutably ambiguous in this sense. Those ambiguous aspects include (1) what rights the Fourteenth Amendment protects, (2) to what groups its protections extend, (3) what work the respective clauses in Section 1 of the Amendment do, and (4) to what degree Section 5 alters the federalism balance of the original constitution. This Article concludes that liquidation cannot help resolve the contemporary disputes about the latter two aspects of the Fourteenth Amendment’s meaning because those matters still have not been liquidated, but that liquidation can be helpfully applied to the first two aspects of the Fourteenth Amendment’s meaning, producing conclusions that reduce the discord between maximum specificity originalism and contemporary constitutional law principles.

Jay Bybee: The Congruent Constitution [Updated]Michael Ramsey

Jay Bybee (U.S. Court of Appeals for the Ninth Circuit) has posted The Congruent Constitution (Part One): Incorporation (Brigham Young University Law Review, Vol. 48, No. 1, 2022) (69 pages) and The Congruent Constitution (Part Two): Reverse Incorporation (Brigham Young University Law Review, Vol. 48, No. 2, 2022) (100 pages) on SSRN.

Here is the abstract for Part 1:

In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the same rights. Ultimately, the Court announced a congruence principle: incorporated rights would be identical to textual rights, jot-for-jot. The congruence principle came with a limitation, however: only select provisions of the Bill of Rights would apply to the states. Nevertheless, selective incorporation is ongoing, as the Court has declared three provisions of the Bill of Rights incorporated in the last decade, and there are other provisions in the Bill of Rights and elsewhere in the Constitution that the Court may yet declared incorporated.

Incorporation may be the most consequential development in the Constitution’s history. But the Court’s record on incorporation is not a flattering one. This Article reviews the troubled history of incorporation and considers the arguments for incorporating the remainder of the Bill of Rights and provisions of the Constitution beyond the Bill of Rights. The Article concludes with three points. First, the Court’s current theory based on the Due Process Clause is textually incoherent. Selective incorporation is descriptive of what the Court has done, but it is not a theory of interpretation. There are better theories available, but so far, the Court has resisted any additional changes in its approach. Second, in adopting the congruence principle, the Court has over-enforced some constitutional provisions and under-enforced others. The Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to all levels of government. Indeed, the Court’s congruence principle may have deterred it from completing the incorporation of the Bill of Rights. Third, the Article concludes that the congruence principle may be convenient for the Court, but congruence cannot justify the Court’s choices. Incorporation has vastly expanded the Court’s authority to regulate the states, without the sanction of legislation or amendment under Article V. Incorporation has also constrained Congress’s power under Section 5 of the Fourteenth Amendment. Through incorporation the Court has altered both our federalism and our separation of powers.

And here is the abstract for Part 2:

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause. The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the nineteenth century—but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of “due process.” One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant.

This Article reviews the history of reverse incorporation, most of which has not been told before. The Article argues that there is nothing “unthinkable” about the Constitution requiring different things of the states and the federal government, and that in the process of creating a congruent Constitution the Court has overenforced some provisions against the federal government and underenforced others against the states. Indeed, the Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to both levels of government. The choice of a unitary rule may affect matters as diverse as mortgage relief in times of emergency and reparations for slavery. In the end, congruence is convenient for the Court, but it has blurred our federalism and altered our separation of powers. The latter point is critical: Through reverse incorporation, the Court has vastly expanded its own authority over Congress and the Executive, without the sanction of legislation or constitutional amendment under Article V.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download them while they are hot!"

FURTHER UPDATE:  Also "Download[s] of the Week."

Thomas Bickel on Overruling Engle v. VitaleMichael Ramsey

In the Harvard Journal of Law and Public Policy Per Curium, Thomas H. Bickel (B.A. Brown '22), Engel Was Grievously Wrong and Should Be Overruled.  From the introduction: 

A jurisprudential shift is underway in the area of Establishment Clause law. The slow and painful death of the long derided “Lemon Test” is merely a symptom of the Supreme Court’s increasing adherence to text, history, and tradition. Against that backdrop, this essay will briefly overview this recent shift as it pertains to Establishment Clause doctrine to suggest that there now exists a viable roadmap to chip away at and revisit Engel v. Vitale. Then, after substantiating how this largely forgotten public prayer precedent is again relevant in light of this ongoing shift, this paper will elucidate why Engel was egregiously wrong and why it warrants being formally overruled at the earliest opportunity to do so.

Via Josh Blackman at Volokh Conspiracy, who has further thoughts on the significance of the court's recent decision in Kennedy v. Bremerton for previous Establishment Clause cases: Texas Will Test Whether Kennedy v. Bremerton Abrogated Engel v. Vitale, Stone v. Graham, and Wallace v. Jaffree.