12/07/2022

Clay Calvert & Mary-Rose Papandrea: Text, History & Tradition in First Amendment Speech Cases After Bruen
Michael Ramsey

Clay Calvert (University of Florida Levin College of Law) & Mary-Rose Papandrea (University of North Carolina School of Law) have posted The End of Balancing? Text, History & Tradition in First Amendment Speech Cases After Bruen (Duke Journal of Constitutional Law & Public Policy, Vol. 18, 2023) (64 pages) on SSRN.  Here is the abstract:

This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court’s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court’s free-speech decisions. The Bruen majority, however, asserted that its novel Second Amendment test eliminating their usage actually “comports” and “accords with” how the Court protects free-speech rights. This Article initially illustrates how that assertion is partly correct but largely inaccurate. It then explores critical problems that likely would arise were the Court to impose its text, history, and tradition methodology from Bruen on First Amendment speech cases. In doing so, the Article addresses how this originalistic approach might affect the continued viability of the Court’s actual malice standard in defamation law adopted nearly sixty years ago in New York Times Co. v. Sullivan.

Somewhat related:  This earlier post on 303 Creative v. Elenis.

Also I really like the authors' term "originalistic" to describe the Court's approach.

(Via Larry Solum at Legal Theory Blog, who says: "Interesting and recommended.")

12/06/2022

Kristin Hickman on Mila Sohoni on Major Questions
Michael Ramsey

Kristin E. Hickman (University of Minnesota - Twin Cities - School of Law) has posted The Roberts Court's Structural Incrementalism (136 Harv. L. Rev. F. 75 (2022)) (22 pages) on SSRN.  Here is the abstract:

This essay responds to Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262 (2022) [ed.: available here], which was published as part of Harvard Law Review’s annual Supreme Court issue. The essay acknowledges that the Roberts Court is more structurally formalist, more inclined to originalist and textualist methods of interpretation, and more skeptical of federal agency action than its predecessors, prompting some amount of evolution in legal doctrines governing the federal administrative state. The essay argues, however, that the recent major questions cases align with a broader pattern in Roberts Court’s jurisprudence regarding separation of powers principles, Chevron deference, and agency design. Notwithstanding lofty flights of rhetoric about the Framers, liberty, and other constitutional values, when pared down to essentials, the Roberts Court’s decisions in these areas are drawn quite narrowly, calibrated to tweak actual administrative governance only incrementally, with plenty of carve outs and caveats, and with a preference for subconstitutional solutions rather than sweeping constitutional pronouncements. For all the hype and hoopla about doctrinal change, the nondelegation doctrine is still dead, Chevron still lives, and federal government agencies soldier on with little alteration in their day-to-day functionality -- at least for now.

12/05/2022

Josh Blackman on (the Most Recent) U.S. v. Texas
Michael Ramsey

At Volokh Conspiracy, Josh Blackman has a series of posts on the recent Supreme Court oral argument in United States v. Texas, a case that hasn't gotten as much attention as it deserves:

Article I, Article II, and Article III in United States v. Texas

Let's Not Set Aside The Scholarly Debate About Vacatur

Predicting a Fragmented Vote in United States v. Texas

From the first:

I have now had a chance to review the transcript in United States v. Texas. On its face, this case concerns fairly technical debates about how to interpret the word "shall" in federal immigration law, and whether the APA permits the remedy of a national vacatur. But lurking under the surface are profound issues that implicate Congress's Article I powers, the President's Article II powers, and the Article III jurisdiction of the federal judiciary. I will take these topics in reverse order. ...

From the second:

I'll admit it. I long ago simply assumed that courts could issue nationwide injunctions. Likewise, I took for granted that the APA gave courts the power to "vacate" agency actions. Sure, I questioned whether those injunctions and vacaturs could be "national" in scope–that is, extend to non-parties. And I often pondered whether it was possible to remand-without-vacatur. (If the D.C. Circuit does it, it must be right, right?!) But I never considered whether the vacatur itself was permissible. That was, of course, until Sam Bray and John Harrison came along.

Sam's scholarship on the nationwide injunction was perfectly timed. The Trump Administration was under a constant barrage of nationwide injunctions. Sam demonstrated that this sort of non-party relief would have been unknown in the courts of equity. The Trump DOJ would routinely cite Bray for this proposition. Somehow–it still boggles the mind–the Supreme Court went Trump's entire term without answering the nationwide injunction question. (And we still don't have an answer!)

Come 2021, the Biden Administration was under a constant barrage of nationwide injunctions. And some conservative judges, perhaps sympathetic to Bray's arguments about the nationwide injunction, turned to a more familiar remedy: vacatur under the APA. These judges were not relying on some unenumerated equitable power, but instead were invoking an express delegation from Congress to "set aside" rules. Indeed, D.C. Circuit judges would vacate five rules before breakfast. But John Harrison argued forcefully that the APA could not be understood to support such a remedy.

Now, this precise issue is before the Supreme Court. ...

And from the last:

I wrote two posts on the latest incarnation of United States v. Texas. Based on my read of the oral argument, I think the ultimate vote may be very fragmented. The Court's six conservatives are not on the same page. And the Court's three progressives will–as they always do when it counts–hang together. The bottom line is the lower-court ruling would be vacated, without a single five-member majority opinion. Here is my crude prediction, that should not be taken very seriously. ...

12/04/2022

Eric Segall on Originalism and 303 Creative [Updated]
Michael Ramsey

At Dorf on Law, Eric Segall: Of Free Speech, Non-Discrimination, and the Futility of Originalism.  From the introduction:

Next week the Court will hear oral argument in 303 Creative LLC  v. Elenis. This controversy involves a wedding website designer who does not want to extend her services to same-sex weddings despite a Colorado law requiring her to do so. The case is a hard one because it pits important principles against each other: the right of the people to free expression against the state's interest in non-discrimination. ...

The point I want to emphasize about this case is how useless originalism is to its resolution and that no one should pretend otherwise. To illustrate this futility, I will focus on an amicus brief (in support of the Court hearing the case) written by a number of all-star first amendment and originalist scholars including Michael McConnell, Richard Epstein, Mark Scarberry, Larry Alexander, Robert George, Steven Smith, and numerous other constitutional law heavyweights. If they can't show the relevance of originalism to this case, it is likely no one can. And, as shown below, they cannot. ...

And from the core of the argument:

The brief then discusses what all first amendment scholars know: the principal evil that Blackstone and the founding fathers were afraid of was prior restraints of speech (not after the fact punishment for speech already uttered). The brief says that in "16th and 17th century England, Parliament passed licensing laws 'to contain the evils of the printing press....' These 'licensing laws' were the core abuse' to which the First Amendment was directed." 

Exactly. But notice this sleight of hand. Immediately before that sentence the brief also says: "Recognizing the limitations of prohibiting prior restraints only, the Framers of the First Amendment sought to broaden the protection of free speech." There is no citation appended to that sentence or support for it.  And, as I've written before, relying on the work of Jud Campbell and others, that idea simply has no weight or history behind it. The infamous example of the Alien and Sedition Acts enacted shortly after ratification, which punished core political speech is one example; blasphemy prosecutions being allowed well into the 19th century constitute another. As Jud has repeatedly pointed out, our conception of free speech today is simply not traceable to the founding era (nor 1868).

And in conclusion (after further discussion of the originalist brief):

Several things should be clear. First, the authors of this brief spend no time discussing the important legal scholarship by Campbell and others that the framers and the public thought that the first amendment's free speech clause was almost entirely concerned with prior restraints. Second, as other briefs in the case show, at the founding and up through the Reconstruction Amendments, there was a strong common law rule that places of public accommodations, like the plaintiff's business, had to accept all customers. As the brief for the Constitutional Accountability Center explains: "Public accommodations laws, which have existed for centuries—long before the proliferation of ready-made consumer products— require one that has made profession of a public employment like innkeepers or blacksmiths, to be bound to the utmost extent of that employment to serve the public.” There is nothing in the Constitution's original meaning that suggests the free speech principle overrides that common law principle that Colorado is trying to further with its law.

Finally, as I wrote on this blog previously, all constitutional rights at the founding were subject to regulation if the public interest was weighty enough. There can be no question that the non-discrimination principle Colorado's law furthers is important and compelling public policy. So, as I said at the beginning, in today's world, though not in 1791, there are two important principles at stake in this case: free expression and combating invidious discrimination. I am not sure how I would balance those two ideals on these facts. What I am positive about is that there is nothing in the Constitution's original meaning to help us with that difficult task. 

I'm not a First Amendment scholar so I don't have definite views on the merits.  But it seems to me that Professor Segall is making two distinct and inconsistent claims: (1) originalism doesn't support the petitioner's argument in this case and (2) originalism doesn't help resolve this case.  From an originalist perspective, if he's right about the lack of support in original meaning for the petitioner's case, then originalism does resolve it: petitioner loses.  Perhaps that's an unsatisfactory resolution in some people's view but that's the way originalism works.  Far from showing that originalism is "useless," it shows exactly how originalism can resolve a modern dispute (if the Court lets it).

(As an aside, though, I'm dubious about the prior-restraints-only reading of the First Amendment, because that seems to give the Amendment really very little force; there is some substantial scholarship pushing back on it, and perhaps the brief should have cited it if it didn't -- but again it's not my area).

ERIC SEGALL responds: “In his normative hat, Eric agrees that if the plaintiff can’t show text or history clearly shows she should win, she should lose. But in his doctrinal hat taking precedent seriously, he thinks it’s a hard case.”

12/03/2022

David Kopel on Bowie Knives and the Constitution
Michael Ramsey

At Volokh Conspiracy, David Kopel: The legal history of bans on firearms and Bowie knives before 1900.  From the introduction:

Bowie knives are back in constitutional law news these days, after a very long absence. The U.S. Supreme Court's Bruen decision instructs lower courts to look to U.S. legal history to see what sorts of restrictions on Second Amendment rights are consistent with the mainstream American legal tradition. According to the Court, the legal history of the Founding Era is the most important, the late nineteenth century much less so, and the twentieth century too late to create a tradition that contradicts the text of the Second Amendment.

Post-Bruen, some gun control advocates have been looking to Bowie knife laws as analogical justifications for bans on common modern rifles and magazines. In a separate post, Bowie knife statutes 1837-1899, I provide a state-by-state survey of all state Bowie knife laws through 1899. This post examines constitutional case law on Bowie knives, the history of such knives, and the history of pre-1900 bans on types of firearms.

As described below, valid pre-1900 precedents on firearms prohibitions are non-existent. Bruen suggests that "dramatic technological changes may require a more nuanced approach" in drawing historical analogies to justify modern arms controls. Accordingly, there has been renewed interest in Bowie knives, which are said to be a new technology that appeared in the early 19th century. In the Fourth Circuit, Maryland Attorney General Frosh is defending a Maryland ban on many common rifles. In his recently-filed supplemental brief in Bianchi v. Frosh, Bowie knife laws are an important part of his argument, including with a citation to my article Knives and the Second Amendment, 47 U. Michigan J. of Law Reform 175 (2013) (with Clayton Cramer and Joseph Olson).

In summary:

The knife category of Bowie knives plus dirks and/or daggers was frequently regulated at the same level as handguns. That is, prohibitions were rarities. The mainstream approach for handguns and knives was non-prohibitory for peaceable adults, such as laws forbidding concealed carry (while allowing open carry), prohibiting sales to minors, or specially punishing misuse.

12/02/2022

Third Circuit Applies Bruen to Non-Violent Felons
Michael Ramsey

In Range v. Attorney General, a panel of the Third Circuit (Judges Shwartz, Krause and Roth) applied the Supreme Court's decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen to decide if the Second Amendment allows the government to prohibit non-violent felons from possessing firearms.  The panel held that it does, based on extensive originalist analysis as directed by Bruen.  In particular, the court found that statutes in England, the American colonies, and the U.S. states after the revolution commonly barred firearms possession by people who disrespected the rule of law (not necessarily just violent offenders.  From the conclusion (citations omitted):

First, in keeping with Locke’s view that compliance with communal judgment is an inextricable feature of political society, these laws “defined membership of the body politic” by disarming individuals whose refusal to take these oaths evinced not necessarily a propensity for violence, but rather a disrespect for the rule of law and the norms of the civic community. Second, legislatures were understood to have the authority and broad discretion to decide when disobedience with the law was sufficiently grave to exclude even a non-violent offender from the people entitled to keep and bear arms. 

The court also found support in the anti-federalist "Dissent of the Minority" in the Pennsylvania ratifying convention, often seen as an early version of the Second Amendment, which declared:

[T]he people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.

The court concluded (citations and quotation omitted):

As the Dissent of the Minority’s proposal makes clear, members of the Founding generation viewed [c]rimes committed—violent or not—as an independent ground for exclusion from the right to keep and bear arms. Amici insist that the proposal’s crime and danger clauses must be read together as authorizing the disarmament of dangerous criminals only. But the Dissent of the Minority’s use of the disjunctive “or” refutes this counterargument: The dissenters distinguished between criminal convictions and dangerousness, and provided that either could support disarmament.

This all seems plausible to me, although (as the court acknowledges) there are some prominent originalist judges who have taken a different view of it.  In any event, the court's detailed consideration of the historical record seems to undermine some alarmist commentary that Bruen sets an impossible task for the lower courts.

12/01/2022

Paul Horwitz on Comparative Originalism
Michael Ramsey

At Prawfsblawg, Paul Horwitz: Where is the Comparativism in Criticisms (or Defenses) of Originalism? From the introduction:

The New York Times this past weekend ran an interesting story about the status of foreign judges who sit on the high courts of other nations, noting that it is "a curious phenomenon among Pacific island nations" but also occurs elsewhere, including "Hong Kong, the Caribbean, Africa and small European nations." Canadians, and I am still one, may be familiar with this phenomenon because of controversy over the role of its former Chief Justice, Beverley McLachlin, who insisted on staying on as a high court judge in Hong Kong despite the resignation of a couple other foreign judges, arguing that that court is still independent of interference from the Chinese government. And I recently heard an interesting talk about the personnel of the U.S. Virgin Islands courts, who often come from neighboring islands and specifically from Puerto Rico. But for the most part I cannot say I had heard or thought much about the phenomenon of "foreign judges on constitutional courts." 

The general subject is surely interesting, as is the article's focus on those judges' unsteady status given the domestic politics of those nations. But what struck me the most was this passage, relying on an interview with Dr. Anna Dziedzic of Melbourne Law School:

Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said.

Obviously this is interesting in any number of ways, not least because it offers a justification for originalism as a method of constitutional interpretation that is consistent with one or two main strands of justification for originalism: that it is less socially disruptive, and in particular--appearing here in a particularly salient context--that it leaves potentially socially disruptive changes to political rather than judicial actors. And it is interesting because that justification is pragmatic and institutional rather than relying on a theory of authority or of what is necessary for proper textual interpretation.

But what is most interesting about it is that, like any constitutional law professor, I have read the usual leading or popular criticisms (and defenses) of originalism--and I had no idea, or none that I can recall, that this phenomenon existed. . . 

This opening leads to the main point of the post, which is that critics and defenders of originalism (with a few prominent exceptions) tend to focus on the U.S. without much attention to comparative sources.

At this blog we are always on the lookout for comparative originalism, but I agree it is an understudied topic.

(Via How Appealing).

11/30/2022

Symposium on Michael Greve's "The Upside-Down Constitution" after 10 Years [Updated]
Michael Ramsey

At the Law & Liberty Forum, a symposium on the tenth anniversary of Michael Greve's important book The Upside-Down Constitution (Harvard University Press 2012).  Here are the contributions:

The Upside-Down Constitution and Its Critics, by Michael Greve (George Mason - Scalia)

The Nature of the Instrument Tells You How to Read It, by Jack Balkin (Yale)

Constitutional Interpretation and the Brooding Omnipresence, by Aditya Bamzai (Virginia)

No Exit, by Justin Walker (Judge, U.S. Court of Appeals, D.C. Circuit) & Benjamin T. Lee (Law clerk, U.S. Court of Appeals, D.C. Circuit)

From the second essay, some interesting thoughts on interpretation from Professor Bamzai:

What justifies the unwritten and uncodified rules of constitutional interpretation? Or are they, like the general federal common law, a brooding omnipresence in the sky?

Let me start with some ground that (I think) I share with Greve on this topic. Unwritten rules govern the interpretation of every document ever written. ...

The fact that readers have to rely on unwritten rules to interpret legal documents by no means renders the interpretive exercise hopeless. Some interpretive rules—such as the assumption that the authors of a Constitution did not write it with a wink and a finger crossed behind their back—simply are far more plausible than any rule to the contrary. (To be sure, the contrary interpretive rule—that the authors of a Constitution lied about its protections—may well be plausible in lawless societies, where the written law is truly nothing more than a parchment barrier.) But because the unwritten interpretive rules cannot be found solely within the written text, one must derive them in some fair way.

In my view, the unwritten rules that form the core of modern-day originalism rest upon a particularly robust understanding of the Aristotelian maxim that “like cases should be treated alike.” Just as a set of rules govern the interpretation of contracts and statutes, so too (originalists argue) similar rules should govern the interpretation of the Constitution. Thus, to the extent structure, logic, and purpose, properly understood, are relevant for interpreting the former (as I believe they are), so too must they be used to interpret the latter.

The question is how best to derive the structure, logic, and purpose of an instrument like the Constitution. In this regard, Greve relies on the “precepts of public choice theory and constitutional political economy.” But can we derive the rule of Swift v. Tyson or Erie R.R. v. Tompkins directly from the abstractions of public choice theory? In my view, no. We need something more—whether that is evidence of the specific meaning of the Rules of Decision Act or the general understanding of the term “laws” within the community that adopted the statute. In this instance, abstractions don’t get us to concrete results. In addition, would it be fair to attribute public choice theory, in all of its particulars, to the authors of the Constitution? I don’t know. Those authors might have had a rough sense of similar concepts, but care must be taken not to presume that the Constitution incorporated all of the perspectives of twentieth-century economists.

The Upside-Down Constitution recognizes these points and spends time and energy canvassing the views of various participants in the constitutional debates of the eighteenth and nineteenth centuries. That is all to the good. It is partly through that kind of in-the-weeds work that we might better understand the provisions of the Constitution. But Greve is correct that we cannot divorce the in-the-weeds work from the broader logic of the whole instrument. To borrow the words of Edward Corwin, writing just under a century ago, that logic is part of The “Higher Law” Background of American Constitutional Law. Ten years after The Upside-Down Constitution’s publication, we are still puzzling over the place of unwritten rules of interpretation in our constitutional order.

Mike Rappaport adds

            Has it been ten years?  Wow.  Here are two blog posts I wrote about Michael's book a decade ago:   Here and here

Further update by Michael Ramsey:  The symposium now includes a response from Michael Greve: No Brooding Over the Upside-Down Constitution. (Thanks to Aditya Bamzai for the pointer.)

11/29/2022

Ed Whelan on Moore v. Harper [Updated]
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Thinking Through Moore v. Harper (part 1 and part 2).  From the introduction:

On December 7, the Supreme Court will hear oral argument in Moore v. Harper. At issue in the case is the meaning of the so-called Elections Clause set forth in Article I, section 4 of the Constitution. The case has elicited a lot of apocalyptic rhetoric, often unaccompanied by any hint of the constitutional text in question. In this post and follow-on posts, I hope to begin working my way through the issues that the case presents....

1. Let’s start with the facts of the case. In November 2021, after receiving the 2020 census data, the North Carolina legislature enacted a new redistricting map for federal elections for its seats in the U.S. House of Representatives. Various plaintiffs sued, alleging that the new redistricting map violated the North Carolina constitution. In February 2022, the North Carolina supreme court ruled in favor of plaintiffs and ordered the state legislature to submit a remedial redistricting map. After the state legislature did so, a state superior court rejected the legislature’s remedial map and adopted a map proposed by special masters it had appointed.

2. The Elections Clause of the Constitution states:

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

From what I can tell, everyone* agrees that a state legislature’s enactment of a new redistricting map for House seats is an exercise of this Elections Clause. (The notion, I gather, is that determining that House members will be elected by district and defining what the congressional districts are is a necessary part of the “Manner of holding Elections for … Representatives.”)

One big issue in the case is what it means for congressional districts to “be prescribed … by the [State] Legislature.” Among other things: What counts as the “the Legislature”? Can a state constitution impose substantive limits on the Legislature’s authority under the Elections Clause? What role do the state courts have in interpreting and applying any such limits? Can the Legislature delegate its power to someone else or enact enforceable limits on how it exercises its power?

Later on, he has this helpful summary of the petitioners' position:

a. The word “Legislature” in the Elections Clause (and in other provisions of the federal Constitution that refer to the “Legislature” of a state) means the representative body that, pursuant to the state constitution, makes the laws in a state.

b. The Elections Clause assigns to the state legislature the authority to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives.” When a state legislature exercises that power, it is exercising federal authority.

c. A state constitution may prescribe the procedure, or method, by which a state legislature makes a legislative enactment. So provisions of the constitution that, say, require a bicameral vote or subject legislation to a governor’s veto, may apply to legislation under the Elections Clause.

d. But the state constitution may not impose substantive limits on what a state legislature may enact pursuant to its Elections Clause authority.

e. A state court may well have the authority to review a law enacted by a legislature pursuant to its Election Clause authority. But if and when it does so, the question it is reviewing is whether that law complies with the federal Constitution and federal statutes, not whether it complies with the state constitution.

... The respondents’ position, by contrast, is that the word “Legislature” means a body that is not just created by the state constitution but also always constrained by it, including in its exercise of authority under the Elections Clause. Therefore, state courts may invalidate a law enacted pursuant to the Elections Clause on the ground that it violates the state constitution.

And in conclusion (to the second post):

Petitioners argue—correctly, I believe—that under respondents’ position a state constitution could entirely exclude the state legislature from having any role in prescribing the rules governing federal elections. The state constitution could provide, for example, its own set of rules for federal elections, and it could state that any addition or revision to those rules could be made only by popular referendum. With respect to redistricting specifically, the state constitution could confer redistricting authority directly on the governor, or on the state supreme court, or on some other body.

Respondents’ position that a state legislature is always constrained by its state constitution would apply as well to the legislature’s role under the Electors Clause and in the Article V amendment-ratification process. That would mean that the people by referendum could, say, adopt a constitutional provision that entirely excludes the state legislature from the appointment of presidential electors and that instead confers on the governor or the state supreme court justice plenary authority to appoint the state’s electors. It would also mean that the southern states before the Civil War could have embedded in their constitutions a provision barring the legislature from ever voting to ratify an amendment that ended slavery or prohibited discrimination on the basis of race.

I will emphasize that I do not present these consequences as some sort of proof that respondents’ position is wrong. Petitioners’ own position is also vulnerable to illustrations of how it could be exploited in unseemly ways. But these consequences do, I think, suggest that the intuition that state legislatures are of course subject to state constitutional limitations when they exercise federal constitutional roles might not be right.

UPDATE:  Ed Whelan has added a short Part 3 to the series.  It makes this worthwhile concluding point:

Anyone on either side who is inclined to view this case through a partisan lens should be aware that there is no reason to think that a victory for the Republican petitioners in North Carolina would be a victory for Republicans more broadly. As this Wall Street Journal article discusses, if the New York legislature’s gerrymander of congressional districts had been allowed to stand in the face of contrary state constitutional provisions, Democrats would likely have had a net gain of seven House seats (a 22-4 advantage rather than the 15-11 margin that resulted from the elections). Republican gains in North Carolina and perhaps some other states might have offset the Democratic gains in New York. But neither in the short term nor especially in the longer term is it at all clear which political party would benefit nationally from a victory for petitioners.

11/28/2022

Two Points Concerning the Proposed “Respect for Marriage Act”
David Weisberg

I would like to make two points concerning the U.S. Senate’s proposed “Respect for Marriage Act” (RFMA), which would make it unlawful for any State official “to deny full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex … of those individuals.”  It should be noted that there is no requirement that any or all States permit same-sex marriages; there is only the requirement that a State not deny the validity of a same-sex marriage validly entered into in another State.  The RFMA would also require the federal government to recognize same-sex marriages.  The motivation for the RFMA clearly is Justice Thomas’ concurring opinion in Dobbs, in which he urged reconsideration of “all of this Court’s substantive due process precedents, including GriswoldLawrence,  and Obergefell.  

The first point is that, with all due respect to Justice Thomas, I think the odds are close to zero—or perhaps I should say 8 to 1 against—that the Court will overturn Obergefell.  The U.S. Census Bureau has estimated that, in 2019, there were 543,000 same-sex married couples in the U.S.; that amounts to more than one million married individuals, and does not include the many thousands of children and other dependents in those families.  There almost certainly are even more such couples today.  The reliance issues arising from those marriages are vastly weightier than those arising from the abortion right proclaimed by Roe and its progeny, which was reversed in Dobbs.  The practical consequence of that reversal is that some pregnant women will have to travel farther than otherwise to undergo abortions.  It is, I believe, virtually unimaginable that a majority of the Court would overturn Obergefell and thus chaotically disrupt the domestic relations of substantially more than one million Americans.  For that reason alone, even if (as I believe) it was wrongly decided in 2015, Obergefell will not be disturbed by the Court. 

The second point relates to Andrew Hyman's interesting recent post on this blog, questioning whether the RFMA would be consistent with First Amendment free speech rights States might enjoy as against the federal government.  He writes: “[I]t is at least questionable that Congress would now require states to refer to gay couples as ‘married,’ assuming that there are other non-derogatory words available, and also assuming that all substantive and procedural rights that a state offers are the same for gay couples as for straight couples.”  This assumes that the RFMA would require States to refer to gay couples as “married”.  I’d like to offer an alternative analysis. 

When Henry VIII required his subjects to swear an oath affirming the validity of his marriage to Anne Boleyn, Thomas More remained silent; he did not take the oath, but he also did not deny the validity of the marriage.  It seems to me that a State and its officials could—without running the risk of being beheaded, as More finally was—similarly remain silent as to the validity of an out-of-State same-sex marriage, while nevertheless treating it the same way it treats any other marriage.  For example, a State’s income tax form could include an instruction such as: “If two persons residing in this State have either entered into and remain in a valid marriage in this State, or have entered into and remain in a marriage that was valid in the State where it was entered into, then those two persons may use ‘Form M – Filing Jointly’ for this State’s income tax return.”

This instruction would apply to a couple that now resides in State A but had formerly entered into a common-law marriage (which State A does not permit) in State B, or a marriage of first cousins (which State A does not permit) in State B, as well as a couple that had entered into a same-sex marriage (which State A does not permit) in State B.  The instruction does not assert or imply that State A itself affirms the validity of either common-law, first cousin, or same-sex marriages; it implies only that the State recognizes that other States affirm the validity of those kinds of marriages.  I think careful drafting could yield instructions, rules and regulations that would all treat out-of-State same-sex (or common-law, or first cousin) marriages the same as in-State marriages, without any affirmation of the validity of those out-of-State marriages.

The foregoing depends on a distinction—the difference between not denying the validity of certain marriages and positively affirming the validity of those marriages—that is admittedly a fine one.  Still, fine or not, there is such a distinction.   Moreover, it’s hornbook law that, if a statute can be construed to avoid questions of constitutionality, it should be so construed.  So, it may be that, if the RFMA becomes law, that fine distinction can obviate a difficult issue.      

2023 Originalism Works-in-Progress Conference Papers and Commentators
Michael Ramsey

The University of San Diego's Originalism Center is pleased to present the complete list of papers and commentators for the Fourteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 10-11, 2023, at the University of San Diego Law School:

William Baude (Chicago), Jud Campbell (Richmond) & Stephen Sachs (Harvard),  General Law and the Fourteenth Amendment

            Commentator: Jack Balkin (Yale) 

Andrew Coan (Arizona) & David Schwartz (Wisconsin), Enumeration and Original Meaning

            Commentator: Randy Barnett (Georgetown)

John Harrison (Virginia), Natural Rights, Incorporation, and the Original Meaning of the Fourteenth Amendment

            Commentator: Michael McConnell (Stanford)

John McGinnis (Northwestern) & Michael Rappaport (USD), An Originalist Approach to Prospective Overruling

            Commentator: Richard Kay (Connecticut)

Julian Mortenson (Michigan), “They Stood Forth in a Manly Way At Their Own Risk”: The Violate-and-Ratify Paradigm for Emergency Action in the Founding Era

            Commentator: Amanda Tyler (Berkeley)

Andrea Pin (Padua) & Graziella Romeo (Bocconi), Antonin Scalia and Hans Kelsen: An Odd Couple? Originalism and Neopositivism in Europe

            Commentator: Fred Schauer (Virginia)

Jed Shugerman (Fordham), Why “Executive Power” Did Not Include Removal: Vénalité, Offices as Property, and the Building/Buying of the Modern State

            Commentator: Ilan Wurman (Arizona State)

11/22/2022

New Journal: The Journal of American Constitutional History
Michael Ramsey

From the editors of a new journal:

You are cordially invited to submit articles to the Journal of American Constitutional History, a new online peer-reviewed journal. At a time when law office history is increasingly casting its shadow over both scholarship and jurisprudence, the Journal of American Constitutional History will offer a space for scholarship that tries to understand the past, rather than to distort it to influence present controversies.

The Journal seeks to promote inter- and multi-disciplinary scholarly dialogue on constitutional history, and we therefore invite submissions from disciplines outside of law, including history and political science. The Journal will publish articles of all lengths, from shorter essays and thought-pieces in the 4,000-to-6,000-word range to longer, traditional articles. Authors will be able to conform to the norms and citation styles of their respective fields.

Why this journal?

The Journal of American Constitutional History offers a serious alternative to student-edited law reviews and the constraining expectations of student editors. Authors will not need to erect elaborate scaffolding that shows some present-day "doctrinal payoff." Nor will authors have to devote thousands of words to well-known background material, unnecessary footnotes, or literature reviews.

The Journal offers much faster publication decisions and time-to-publication than most peer-reviewed journals. Authors can expect to receive first-level decisions within a week of submission, and articles submitted for double-blind peer review will receive a decision within 3-4 weeks. Each author will receive written feedback explaining our publication decision. Articles will be published via the Journal website as soon they are completed rather than awaiting compilation of a full issue. Each article will be assigned a unique page range for citation purposes, and published articles will be carried by Hein Online and other searchable electronic databases.

The Journal's Board of Editors comprises leading scholars in the field of constitutional history. Authors can thus be assured of reaching their target audience from a distinguished platform and need not associate "prestige" with killing trees.

To submit articles, please visit our website, starting December 1, 2022. For questions, please contact the Journal's editor-in-chief, David Schwartz, at editor-jach@law.wisc.edu.

(Via Dan Ernst at Legal History Blog).

11/21/2022

Ethan Leib: The Textual Canons in Contract Cases
Michael Ramsey

Ethan J. Leib (Fordham University School of Law) has posted The Textual Canons in Contract Cases: A Preliminary Study (2022 Wisconsin Law Review 1109) (30 pages) on SSRN.  Here is the abstract:

This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation. Looking at two jurisdictions’ use of textual canons in contract cases over time and in careful detail, this Essay reports findings and offers preliminary conclusions, about the specific jurisdictions under review and more generally in a comparative vein, both inter-jurisdictionally and as compared to what we know about the same canons’ use within practices of statutory interpretation.

11/20/2022

Emile Katz: Due Process & The Standing Doctrine
Michael Ramsey

Emile J. Katz (University of California, Berkeley - School of Law, JD '21) has posted Due Process & The Standing Doctrine (65 pages) on SSRN.  Here is the abstract:

The standing doctrine undergirds every case litigated in federal court yet, despite its ubiquity, the doctrine is difficult to apply, cannot be derived from the plain meaning of Article III of the Constitution, and doesn’t effectively serve the goals the Supreme Court has explained as its raison d'être. Accordingly, the standing doctrine has frequently been criticized as a policy-driven and judicially-invented fabrication. This article posits that, if appropriately understood, the standing doctrine is required by the Constitution’s text—but by the Due Process Clauses of the Fifth and Fourteenth Amendments, not by Article III. The Due Process Clauses prohibit courts from depriving a person of life, liberty, or property without due process of law. As Justice Amy Coney Barrett has explained, stare decisis can often function similarly to preclusion and consequently the application of stare decisis can deprive litigants of their life, liberty, or property rights without due process of law. This article proposes that standing resolves the due process issue identified by Justice Barrett by ensuring that litigants presently before a court are adequately representing potential future litigants and thereby providing those future litigants with due process. In short, the Due Process Clauses require courts to check for standing because otherwise the application of stare decisis—a legal principle tracing back to before the Founding—would deprive future litigants of their rights without due process of law. Viewing standing as a due process requirement both ties the doctrine to the Constitution’s text and helps explain much of the Court’s discussion of the standing doctrine’s purposes. This article additionally discusses the implications which arise from reframing standing as a due process requirement rather than an Article III requirement.

11/19/2022

The U.S. Senate Marriage Bill and the Constitution
Andrew Hyman

House Resolution 8404 titled the “Respect for Marriage Act” seems on track to become law soon, having been amended in the Senate, and then having cleared the 60-vote filibuster threshold (62 to 37).  The full text of the bill following the Senate amendment is here.
 
Journalist Byron York opines that the bill is needless in view of the U.S. Supreme Court’s decision seven years ago in  Obergefell v. Hodges. My perspective is somewhat different; this legislation seems like a good sign that people realize there’s something insufficient and peculiar about a purported democracy having social policy changed judicially without any clear constitutional authority to do it through the courts alone.

Relatedly, there was a recent debate here at the Originalism Blog between Professors Earl Maltz and Lawrence Lessig about what the Supreme Court meant in The Slaughter-House Cases.  Did the Court mean that the Fourteenth Amendment expanded Congress’s power to compel states to respect new “privileges or immunities of citizens of the United States” or not?  Professor Maltz argued "not" and I think his argument is correct.  However, the language of the Equal Protection Clause is very different from that of the Privileges or Immunities Clause, and the former specifically references "the laws" which refers to both state statutes and federal statutes.  Thus, the Equal Protection Clause contemplated a substantive role for Congress, not merely an enforcement role under Section 5, in my opinion.  So, on that score, it looks to me like a very good thing that Congress is now getting ready to act on the same-sex marriage issue, instead of leaving it solely to the Supreme Court.  

But regardless of whether congressional action is necessary now or not, that still leaves the question whether Congress is going about it in an entirely constitutional way.   The article I linked above from Byron York says that the Senate amendment did not change the fact that the bill “gave the right to sue to one side but not to the other” with regard to religious objectors.  York also says that another Senate amendment was rejected that would have protected a person who "speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction” about what marriage means.  And religion is not the only issue here.

In addition to First Amendment issues about religion, there are also free speech issues unrelated to religion.  First and foremost, the great advances that the United States has made in the area of racial equality never required any state to refer to black people as “white” (or vice-versa).  So, it is at least questionable that Congress would now require states to refer to gay couples as “married,” assuming that there are other non-derogatory words available, and also assuming that all substantive and procedural rights that a state offers are the same for gay couples as for straight couples.  Indeed, when Proposition 8 was passed by Californians in 2008, everyone in the ensuing legal controversy agreed that the state’s civil partnership regime provided all the same rights, including the right of private citizens to call civil unions “marriages,” with only one exception: the right of people in civil unions to demand that the state refer to them as “married.”  As the Supreme Court of California put it: "Proposition 8 … carves out a narrow exception applicable only to access to the designation of the term 'marriage….'"

From an originalist point of view, the Full Faith and Credit Clause (upon which the present House Res. 8404 is largely based) should be construed in a way that causes minimum conflict with the later-enacted First Amendment and any discrepancy resolved in favor of the latter.  Likewise, I do not see any evidence that the Fourteenth Amendment was meant to alter the First Amendment in any way that is pertinent here (nor any way at all).  A state would seem to have a legitimate First Amendment interest in using a word for same-sex couples that the state reasonably believes (1) is respectful, (2) does not imply that having a mother and father is exactly the same as having two fathers or two mothers, and (3) does not modify longstanding definitions of English words.
 
In a 2015 blog post, Professor Eugene Volokh wrote: “Do state and local governments have First Amendment rights against federally imposed speech restrictions? You'd think this would be settled, but it hasn't been.”  As far as I know, the leading law review article on this subject remains State Actors as First Amendment Speakers by Professor David Fagundes.  Fagundes wrote:

I thus suggest an approach that draws from two strains of constitutional theory, arguing that government speech can lay claim to constitutional protection only where the expressive conduct at issue is intrinsic to the public function of the entity speaking and where that conduct furthers the values of democratic self-government that animate the First Amendment.

Issuing licenses to couples is a longstanding public function dating back to the early 1600s in the United States, and phrasing those licenses is an intrinsic part of that function.  Moreover, the Full Faith and Credit Clause was designed to prevent significant disruptions between states, and the vocabulary dispute at issue here seems rather non-disruptive in an interstate sense.  Quebec uses an entirely different language from Saskatchewan, but Canada survives, and here we are discussing but a single word, albeit one with large social ramifications.  The First Amendment should stop the federal government from forcing states to use one reasonable vocabulary instead of another reasonable vocabulary, when it comes to this matter.

11/18/2022

Rocky Rhodes & Andra Robertson on Originalist Arguments in Mallory v. Norfolk Southern
Michael Ramsey

At Prawfsblawg, Rocky Rhodes (South Texas) and Andra Robertson (Case Western), guest blogging: The Mallory Argument on Personal Jurisdiction via Corporate Registration.  From the introduction:

... Mallory v. Norfolk Southern Railway Co. [argued to the Supreme Court earlier this month], ... addresses the constitutional limits on states asserting jurisdiction over a nonresident corporate defendant that registers to do business in the state. Under 42 Pa. C.S. § 5301, state courts obtain “general jurisdiction” over a nonresident corporation registering to do business. Mallory claims that this statute supports Pennsylvania’s jurisdiction over his FELA claim against his employer Norfolk Southern Railway because the railroad is registered to business in the state—even though Mallory is a citizen of Virginia, the railroad is incorporated with a then-principal place of business in Virginia (now in Atlanta, Georgia), and his claim arose from his alleged exposure to carcinogens in Virginia and Ohio. The railroad counters that the exercise of personal jurisdiction violates the Due Process Clause and the unconstitutional conditions doctrine. We had a series of posts on this case on Prawfs shortly after certiorari was granted last April (see herehere, and here), and Howard invited us back to report on the oral argument and the briefing in the case. We’ll highlight the primary positions of the parties, the Justices who pushed back, and some interesting tidbits for our fellow jurisdictional aficionados.

On the claimant's  historical arguments:

Mallory’s primary argument is that the Pennsylvania statute is constitutional under the original public meaning of the Fourteenth Amendment. His merits brief includes an exhaustive compilation of state statutes during the 1800s tying corporate registration to a state’s adjudicative jurisdiction, with the first of these statutes appearing in the 1820s. This listing is not a surprising strategy for a plaintiff confronting a Court that has a reputation for being sympathetic to business interests while also (at least sometimes) singing the praises of originalism. Such historical archival compilations may become as commonplace in constitutional cases before the Roberts Court as the Brandeis brief was during the Lochner era.

But several Justices questioned the impact of these statutes, as did the railroad. Justice Barrett doubted that all the listed statutes were on point—some involved questions of service of process and others did not authorize all claims against the registering defendant, but rather only claims brought by a resident of the forum. The railroad also argued that most of the statutes were distinguishable and that nineteenth century cases did not support that jurisdiction was appropriate under these statutes when the plaintiff was a nonresident and the cause of action arose outside the forum. Mallory responded that all the statutes were relevant, while admitting that there were very few cases that employed these statutes in “foreign cubed” cases, where neither the defendant nor the plaintiff was a resident of the forum and the events giving rise to the claim occurred outside the forum. The statutes were more commonly applied in “foreign squared” cases, where at least the plaintiff was a resident of the forum. But in response to Justice Alito, Mallory maintained that the existence of the statutes was enough—he did not have to show a tradition of those statutes being applied by the courts to establish original public meaning.

Justice Thomas asked a question that he was able to avoid (by discounting the many proffered analogies to gun restrictions in the Founding and Reconstruction eras) in his opinion this summer in New York State Rifle & Pistol Association v. Bruen—how many state statutes are necessary to establish the original meaning? Mallory responded that was a difficult issue, but thought the compilation of statutes in the brief satisfied the requirement. But that would not be the case, of course, if the Court views the statutes as distinguishable.

...

The railroad, of course, had a different view. Tag jurisdiction against natural persons [ed.: which the Supreme Court approved in Burnham v. Superior Court, a Scalia plurality], the railroad contended, was supported by a longstanding historical tradition, while there was only a smattering of statutes and almost no cases indicating that registration could support general jurisdiction. The railroad maintained that the old service of process statutes referenced in Mallory’s brief were simply not enough. And tag jurisdiction was also different since a person can only be in one state at a time, while a corporation might be coerced to consent to jurisdiction simultaneously in each and every state.

The how-much-practice-is-enough question is a very significant methodological issue for which I think the Justices don't have a clear answer.  In my view it necessarily involves a related question about who has the burden of proof -- another very significant methodological issue for which I think the Justices don't have a clear answer.

11/17/2022

Mila Sohoni: The Major Questions Quartet
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Major Questions Quartet (Harvard Law Review, Vol. 136, p. 262, 2022) (57 pages) on SSRN.  Here is the abstract:

This Case Comment, prepared at the invitation of the Harvard Law Review for its annual Supreme Court issue, describes and evaluates the “major questions quartet”: the CDC eviction moratorium case, the OSHA vaccine mandate case, the CMS vaccine mandate case, and the EPA Clean Power Plan case. Because none of these cases reached a constitutional holding, they are overshadowed by the Term’s blockbuster decisions involving fundamental rights. But no one should mistake these cases for anything but what they are: separation of powers cases in the guise of disputes over statutory interpretation.

While ostensibly applying existing major questions case law, the quartet in actuality altered the doctrine of judicial review of agency action in its method and content, in ways that will have momentous consequences. To begin with, the quartet unhitched the major questions exception from Chevron, which has been silently ousted from its position as the starting point for evaluating whether an agency can exert regulatory authority. Instead, the CDC case initiated, and the OSHA and EPA cases completed, a transition to a new order of operations for evaluating the legality of major regulatory action. Under the test that the quartet has now designated as the “major questions doctrine,” the Court will not sustain a major regulatory action unless the statute contains a clear statement that the action is authorized. The import of this shift can be measured by the yardstick of earlier cases. If the method enunciated by the quartet is the law, King v. Burwell and Babbitt v. Sweet Home (among others) cannot possibly have been right, and Massachusetts v. EPA is standing on quicksand. Yet no Justice acknowledged, let alone defended, the disjoint between such precedents and the method charted in the quartet.

There is one prediction, though, that the Court notably did not fulfill last Term. The world of administrative law has recently been on tenterhooks, awaiting with bated breath the Court’s revival of the nondelegation doctrine. Yet, strikingly, this did not occur, despite the obvious opening for a nondelegation renaissance that these cases supplied. Rather than saying anything of substance about what the law (of nondelegation) is, the Court instead told us that it is emphatically the province of the judicial branch to say what the law must say clearly. The Court’s reticence on nondelegation creates deep conceptual uncertainty about what exactly it was doing in the quartet — a conceptual uncertainty that will matter for future cases. It is not clear what theory of nondelegation, if any, underlies and justifies the major questions quartet. And without knowing what that underlying theory is, it becomes much harder to sensibly apply a rule that ostensibly exists “in service of” that underlying doctrine. The major questions quartet may seem to be a pragmatic type of light-touch nondelegation that pumps the brakes on the occasional instance of regulatory overreach while carefully eschewing hard constitutional limits on Congress’s power to delegate. But whenever the Court — especially a supposedly textualist Court — imposes a requirement on Congress that it legislate with special clarity, the Court should articulate a concrete and specific constitutional value that justifies that rule. The Court chose not to do that in the quartet, and — as this Comment argues — serious reasons exist to doubt whether it could.

The Comment proceeds as follows. Part I describes the evolution of the major questions exception into a new clear statement rule that operates as a presumption against reading statutes to authorize major regulatory action. It then explores how the quartet broke ties with one landmark case (Chevron) and silently ignored the methodology of many others, and closes with an examination of the hard questions posed by the quartet concerning the Court’s commitment to textualism. Part II turns to the dog that didn’t bark in these cases — nondelegation — and the relationship of the major questions quartet to nondelegation. It explains that the collective upshot of these cases may be to significantly reduce the set of cases in which it will be necessary to reach a full-dress constitutional nondelegation holding while still allowing nondelegation doctrine to be effectively resurrected, though less visibly, on a retail level. It then evaluates whether the quartet’s clear statement rule can be justified by the principle of constitutional avoidance or as a device to protect constitutional values. In the brief conclusion that follows, the quartet is situated in a broader historical arc as the latest installment of a longer pattern in which the Court has used interpretive methods to promote, and now to curtail, administrative governance.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Important, impressive, and highly recommended.  Download it while it's hot!"  Agreed!

11/16/2022

Saul Cornell on Originalism's Historical Challenges
Michael Ramsey

At the Ohio State University site Origins: Current Events in Historical Perspective, Saul Cornell (Fordham): Originalism’s Historical Problems: The Supreme Court’s Embrace of a Controversial Theory.  Some excerpts:

[I]nterpreting a constitution is different from what historians do when they make sense of other old legal documents, such as wills, contracts, or statutes. Nor can one simply run the text of the Constitution through something like a Google translator function: a fact most originalists have failed to grasp. 

Words, particularly the words of a constitution, are embedded in a rich range of contexts when they are uttered. Recovering their original meaning requires restoring not just the text but paying close attention to the contexts in which those words would have been interpreted.

In contrast to those other more familiar legal texts, the U.S. Constitution was the product of a collective effort, so discerning a single intent as a guide to its meaning is hard to do, if not impossible. Additionally, from the moment it was adopted, there were bitter disagreements over what type of text the Constitution was and how it ought to be interpreted. 

The Constitution was a new type of document with no clear precedents or agreed-upon methods for interpreting its meaning. Was the Constitution like a Parliamentary statute, or more like a contract between the people and their government? The former uses one set of legal principles and the latter a different set of tools.

Within months of its adoption, former Anti-Federalists—opponents of the unamended Constitution—and Federalists were already arguing bitterly over what the text meant. Alexander Hamilton and James Madison, two of the co-authors of The Federalist, the contemporary commentary on the Constitution they published, disagreed over almost every major constitutional question that emerged during the turbulent decade after ratification. If people at the time could not agree on a single meaning of the text, it seems unlikely that judges in the 21st century can find one.  

Other originalists have argued that the Constitution should be read like a recipe that needs to be followed precisely as one would in cooking a meal. Originalists, however, don’t appear to have spent much time in the kitchen. Real cooks seldom follow recipes strictly and any cook worth their salt would adjust a recipe on the fly to deal with the actual situation they faced in the kitchen. If you opted for a tough cut of meat, such as brisket, you would certainly opt to cook the stew a bit longer. Speaking of salt, most recipes typically end with the advice “season to taste,” so different cooks are likely to interpret that advice in light of their own experiences in the kitchen and distinct culinary traditions.

If the entire Constitution contained precise instructions, the recipe analogy might work better. But most parts of the text are not precise at all. Much of the document was deliberately crafted with open-ended language, both to allow the government to address unprecedented challenges and because compromise during the drafting of the document meant using ambiguity and vagueness in a strategic fashion, kicking many practical questions down the road to later generations. ...

It's a good survey of challenges to originalism from a historical perspective.  Originalists need to have responses to these and related points (but I think responses are available).

11/15/2022

Tara Grove: The Misunderstood History of Textualism
Michael Ramsey

Tara Leigh Grove (University of Texas School of Law) has posted The Misunderstood History of Textualism (forthcoming, Northwestern University Law Review, Vol. 117, No. 4, 2023) (65 pages) on SSRN.  Here is the abstract:

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to surrounding text and structure to determine if an operative text was clear. The Article also offers an intellectual history, showing how in the early twentieth century, legal realists and legal process theorists created the myth of a “literal” and “wooden” “plain meaning school.” More surprisingly, modern textualists later accepted this account—a decision that, this Article suggests, had an important impact on the development of textualism. To distinguish their brand from (what they saw as) the “literal” old plain meaning school, modern textualists defined “textualism” so capaciously as to create the conditions for divisions within textualism that we see today. This Article not only clears up a historical misunderstanding but also has two broader lessons. First, the account here offers a cautionary tale about reliance on “conventional wisdom.” Second, the analysis suggests that theorists should set aside debates over “literalism” in statutory interpretation. The question is not—and has never been—whether interpreters should look to context but rather which context they should consider.

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

11/14/2022

New Book: "Democracy’s Chief Executive" by Peter Shane
Michael Ramsey

Recently published, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency, by Peter M. Shane (University of California Press 2022).  Here is the book description from Amazon:

Legal scholar Peter M. Shane confronts U.S. presidential entitlement and offers a more reasonable way of conceptualizing our constitutional presidency in the twenty-first century.
 
In the eyes of modern-day presidentialists, the United States Constitution’s vesting of “executive power” means today what it meant in 1787. For them, what it meant in 1787 was the creation of a largely unilateral presidency, and in their view, a unilateral presidency still best serves our national interest. Democracy’s Chief Executive challenges each of these premises, while showing how their influence on constitutional interpretation for more than forty years has set the stage for a presidency ripe for authoritarianism.
 
Democracy’s Chief Executive explains how dogmatic ideas about expansive executive authority can create within the government a psychology of presidential entitlement that threatens American democracy and the rule of law. Tracing today’s aggressive presidentialism to a steady consolidation of White House power aided primarily by right-wing lawyers and judges since 1981, Peter M. Shane argues that this is a dangerously authoritarian form of constitutional interpretation that is not even well supported by an originalist perspective. Offering instead a fresh approach to balancing presidential powers, Shane develops an interpretative model of adaptive constitutionalism, rooted in the values of deliberative democracy. Democracy’s Chief Executive demonstrates that justifying outcomes explicitly based on core democratic values is more, not less, constraining for judicial decision making—and presents a model that Americans across the political spectrum should embrace.

The Yale Journal on Regulation's Notice and Comment Blog is hosting a symposium on the book, with these contributions, some sharply critical of originalism:

Reining in the Presidency Requires Limiting the Scope of Federal Power, by Ilya Somin

The Necessity of Politics in Administration, by Cristina Rodriguez

Constitutional Interpretation Is Values All the Way Down, by Michael Sant’Ambrogio

Of Presidents, Democracy, and Congress, by Gillian Metzger

Democracy’s Chief Executive and the Separation of Powers, by Christopher J. Walker

The Major Question Doctrine, Nondelegation, and Presidential Power, by Daniel Farber

Visions of a Progressive Regulatory Movement: Remarks on Democracy’s Chief Executive by Peter M. Shane, by Glen Staszewski

Resisting Originalism, Even When “Done Well”, by Lisa Heinzerling

What Kind of Democracy? by Keith E. Whittington

Can Originalism Survive the Lawlessness It Has Bred? A Prayer for a Stronger and Wiser Theory of Interpretation, by Victoria Nourse

The Bloated and Dangerous Presidency, by Carlos A. Ball

The Time to Stop a Runaway Presidency is Before it Starts, by Richard H. Pildes

11/13/2022

Tom Donnelly: Popular Constitutional Argument
Michael Ramsey

Thomas Donnelly (Ph.D. candidate, Princeton - Politics) has posted Popular Constitutional Argument (Vanderbilt Law Review, Vol. 73, No. 73, 2020) (78 pages) on SSRN.  Here is the abstract:

Critics have long attacked popular constitutionalists for offering few clues for how their theory might work in practice—especially inside the courts. These critics are right. Popular constitutionalism—as a matter of both theory and practice—remains a work in progress. In this Article, I take up the challenge of developing an account of (what I call) popular constitutional argument. Briefly stated, popular constitutional argument is a form of argument that draws on the American people’s considered judgments as a source of constitutional authority—akin to traditional sources like text, history, structure, and doctrine. Turning to constitutional theory, I situate popular constitutional argument within contemporary debates over judicial restraint, living constitutionalism, popular sovereignty theory, and originalism. And turning to constitutional practice, I offer the interpreter a concrete framework for crafting popular constitutional arguments—cataloguing the various indicators of public opinion that have played a role in recent Supreme Court decisions. These indicators include measures associated with the President, Congress, state and local governments, the American people’s actions and traditions, and public opinion polls. Throughout, I use illustrative examples to show the various ways in which popular constitutional argument already operates at the Supreme Court—appealing to jurists from across the ideological spectrum. While this Article begins to explore how popular constitutionalism might operate inside the courts, much work remains.

From a little while back, but I missed it the first time and it seems very interesting.  At Legal Theory Blog,. Larry Solum says: "Finally!  Much needed.  Highly recommended.  Download it while it's hot!"

11/12/2022

More on Lessig on the Slaughterhouse Case
Earl Maltz

[Ed.: This is the third in a series of point-counterpoints by Professors Earl Maltz and Lawrence Lessig regarding Provessor Lessig's recent essay on the Slaughterhouse Case.  Previous posts are here (Maltz) and here (Lessig).]

First, I’d like to thank Professor Lessig for continuing the conversation and for calling my attention to a point that I should have addressed in my first post.

At its core, Lessig’s argument is based on his interpretation of Justice Miller’s observation in the Slaughterhouse Case that the “privileges or immunities of citizens of the United States are those which owe their existence to the Federal government, its national character, its Constitution, or its laws.” Lessig suggests that the reference to “its laws” might be read to indicate that the Privileges or Immunities Clause vested Congress with the power “to render a ‘privilege or immunity’ federal if, and maybe only if, it is addressing some denial of equality.”  He argues that a contrary interpretation of Miller’s opinion is not appropriate because such an interpretation would call into question the constitutionality of the Civil Rights Act of 1866, which had been reenacted in 1870 after the ratification of the Fourteenth Amendment itself.

One of the problems with this argument is that it ignores the context in which the reference to “its laws” was made.  There is no reason to believe that Miller was suggesting that, even when combined with section five, the Privileges or Immunities Clause should be interpreted in a manner that would allow Congress to override state laws dealing with a wide variety of rights so long as there was “some denial of equality.”  Instead, Miller was simply making the commonplace observation that, assuming that Congress had the authority to pass a particular statute, any rights granted by that statute would be derived from the federal government rather than the states and that, as such, were among the privileges or immunities that one enjoys by virtue of his or her national citizenship.

More importantly, while Miller was clearly well-aware of the need to interpret the Fourteenth Amendment in a manner that would unequivocally vindicate the constitutionality of the Civil Rights Act, he did not rely on the Privileges or Immunities Clause as the source of congressional authority to pass the statute.  Instead, Miller would have derived the relevant authority from the Equal Protection Clause.  Thus, after quoting the language of that clause, he asserted that “the existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden” and that “if, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation.”  However, Miller was also careful to limit the scope of his equal protection argument, observing that “we doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.”

By relying on the strictures of the Equal Protection Clause as the justification for the Civil Rights Act while simultaneously emphasizing the limitations on the scope of that authority, Miller was able to vindicate congressional power to protect the former slaves from hostile state action while at the same time avoiding the dramatic change in the structure of federal-state relations that he condemned immediately after his discussion of the equal protection issue.  By contrast, the recognition of a general power in Congress to protect rights in any case where there is “some denial of equality” would have created the very kind of change in the federal system that Miller described in such derogatory terms.  In short, unless one is willing to dismiss Miller’s discussions of the importance of federalism as mere window dressing, Lessig’s characterization of the import of the reference to “its laws” in the majority opinion in Slaughterhouse is simply implausible.

11/11/2022

Julian Gregorio: Picking an Originalist Approach that Gets Standing Back on Track
Michael Ramsey

Julian Gregorio (Notre Dame, J.D. Candidate '23) has posted What's Originalism After TransUnion?: Picking an Originalist Approach that Gets Standing Back on Track (Notre Dame Law Review Reflection, forthcoming) (27 pages) on SSRN.  Here is the abstract:

The law of standing has “jumped the tracks” from the Constitution’s original meaning. At least, a growing chorus of originalists say so. Justice Thomas, as well as Judge Kevin Newsom of the Eleventh Circuit Court of Appeals, are leading the way to put the doctrine back on track. Justice Thomas’s 2021 dissent in TransUnion LLC v. Ramirez, as well as Judge Newsom’s 56-page concurrence in Sierra v. City of Hallandale Beach, each display the originalist approach to standing—but do they agree? Judge Newsom’s approach largely mirrors Justice Thomas’s, but it differs in subtle ways, including that he would ground statutory grants of standing in Article II rather than in Article III, as Justice Thomas apparently does. The two judges agree that constitutional “concrete injury” does not always require injury in fact, if Congress elevates a harm by statute.

This Note explores the differences between the two originalist attempts to realign the law of standing with the Constitution’s original meaning. The issue has important implications for the originalist methodology more broadly, as it will aim to elucidate what makes originalists arrive at similar conclusions from different starting points or arrive at different conclusions entirely. Hopefully, the Note will help those sympathetic to the cause understand the law of standing and how to best get standing jurisprudence back on track. And hopefully, the Note will help those unsympathetic to the cause by at least elucidating what these two major originalists are doing. Either party would do well to understand this debate: any changes that are to come in the law of standing will have significant practical effects.

11/10/2022

Even More from Gregory Ablavsky on Rob Natelson on the Indian Commerce Clause
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted Further Thoughts on the Constitutional History of Federal Power Over Indian Affairs (11 pages) on SSRN.  Here is the abstract:

This short piece builds on my earlier response to Robert Natelson's purported "cite check" of my 2015 Yale Law Journal article by addressing some of the arguments in his new Federalist Society Review article. It argues 1) that Natelson misinterprets Federalist 42, 2) that colonial-era regulations of Indian trade support a quite broad scope for the law merchant, and 3) that Natelson mischaracterized my methodology while making some odd methodological choices of his own.

It also briefly offers some new evidence on the historical scope of federal authority in Indian affairs that further supports an interpretation of the meaning of "commerce with the Indian tribes" that encompasses intercourse.

Links to earlier rounds in this interesting but heated exchange are here.

(Via Karen Tani at Legal History Blog).

11/09/2022

Justice Gorsuch Calls for More Overrulings on Originalist Grounds
Michael Ramsey

In two recent dissents from denial of certiorari, Justice Gorsuch called on the Court to overrule prior decisions.  In Khorrami v. Arizona he argued for overturning Williams v. Florida, 399 U. S. 78 (1970) (holding that the Sixth Amendment allows a jury of fewer than 12 members.  From the opinion: 

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury. On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U. S. Constitution guarantee individuals like him a trial before 12 members of the community. The Arizona Supreme Court rejected the appeal, explaining that it considered itself bound by Williams v. Florida, 399 U. S. 78 (1970). There, for the first time and in defiance of centuries of precedent, this Court held that a 12-member panel "is not a necessary ingredient" of the Sixth Amendment right to trial by jury. In his petition for certiorari, Mr. Khorrami asks us to reconsider Williams. Regrettably, the Court today declines to take up that task. Williams was wrong the day it was decided, it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation's courts….

For almost all of this Nation's history and centuries before that, the right to trial by jury  for serious criminal offenses meant the right to a trial before 12 members of the community. In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law. That mistake continues to undermine the integrity of the Nation's judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable. Today's case presented us with an opportunity to correct the error and admit what we know the law is and has always been. Respectfully, we should have done just that.

And of greater significance, were he to get the votes, in Buffington v. McDonough Justice Gorsuch argued for overruling the doctrine of agency deference associated with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). From the opinion: 

From the beginning of the Republic, the American people have rightly expected our courts to resolve disputes about their rights and duties under law without fear or favor to any party—the Executive Branch included. See A. Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908, 987 (2017). In this country, it was “well established” early on that courts are not “bound by . . . administrative construction[s]” of the law and those constructions may “be taken into account only to the extent that [they are] supported by valid reasons.” Burnet v. Chicago Portrait Co., 285 U. S. 1, 16 (1932).

...

In this country, we like to boast that persons who come to court are entitled to have independent judges, not politically motivated actors, resolve their rights and duties under law. Here, we promise, individuals may appeal to neutral
magistrates to resolve their disputes about “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Everyone, we say, is entitled to a judicial decision “without respect to persons,” 28 U. S. C. §453, and a “fair trial in a fair
tribunal,” In re Murchison, 349 U. S. 133, 136 (1955). Under a broad reading of Chevron, however, courts often
fail to deliver on all these promises. Rather than provide individuals with the best understanding of their rights and
duties under law a neutral magistrate can muster, we outsource our interpretive responsibilities. Rather than say
what the law is, we tell those who come before us to go ask a bureaucrat. In the process, we introduce into judicial proceedings a “systematic bias toward one of the parties.” P. Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187,
1212 (2016). Nor do we exhibit bias in favor of just any party. We place a finger on the scales of justice in favor of
the most powerful of litigants, the federal government, and against everyone else. In these ways, a maximalist account
of Chevron risks turning Marbury on its head.

(At Volokh Conspiracy, Josh Blackman comments on the latter dissent).

Seth Barrett Tillman Receives Award from the North Carolina Society of Historians
Michael Ramsey

Congratulations to Seth Barrett Tillman, whose work is often featured on this blog, for receiving the North Carolina Society of Historians' 2021 Award of Excellence for Outstanding Contribution to the Preservation and Perpetuation of North Carolina History and Heritage.  The award is based on his articles "What Oath (if any) did Jacob Henry take in 1809?: Deconstructing the Historical Myths," 61(4) American Journal of Legal History 349–384 (Dec. 2021) (available here) and "A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources," 98(1) North Carolina Historical Review 1–41 (Jan. 2021)  (available here).

Professor Tillman's thoughts on receiving the award are here (at New Reform Club).

11/08/2022

David Gans on Originalism and Moore v. Harper
Michael Ramsey

At Slate, David Gans (Constitutional Accountability Center): Originalism Demands Only One Answer in the Supreme Court’s Big Elections Case.  From the introduction:

Moore v. Harper, which will be argued before the Supreme Court on Dec. 7, has been called one of the most important democracy cases ever to come before the court. It is also a defining moment for the many justices on the court who profess to be originalists. Moore raises the question of whether the court’s conservative wing will sanction an anti-originalist power grab that would eviscerate our ability to hold free and fair elections.

Moore involves the so-called independent state legislature theory—a sweeping and radical effort to prevent state courts from protecting voting rights enshrined in their own state constitutions. In Moore, the North Carolina Supreme Court held that North Carolina’s congressional maps contained a partisan gerrymander that violated the free elections clause of the North Carolina Constitution, a provision that has been a fixture of that document since 1776. The North Carolina legislature, however, insists that because the U.S. Constitution gives state legislatures the authority to regulate the time, place, and manner of congressional elections, all substantive state constitutional checks and balances are null and void. This is an astounding—and astoundingly wrong—claim that would annul state constitutional voting and equality protections added to state charters over the course of two centuries, do violence to principles of federalism, and throw state electoral systems into disarray.

Further, the ISLT is an abomination to originalism, and for genuinely originalist justices, Moore should be an easy case. First of all, American constitutionalism began with state constitutions. Judicial review by state courts to enforce state constitutional limits on the power of the legislature is older than the U.S. Constitution itself. Well before the delegates met in Philadelphia to draft the Constitution, state courts put into practice the notion that legislatures are creatures of state constitutions and bound to observe their limits, not independent of them. In fact, state judicial review provided the model for federal judicial review. As Alexander Hamilton’s classic defense of judicial review made explicit, “the right of the courts to pronounce legislative acts void, because [they are] contrary to the Constitution” has been “of great importance in all the American constitutions.” ...

I think this is basically right, and I doubt the Court will accept the absolute version of ISLT advocated by the state legislature.  But the essay here fails to engage with two intermediate positions.  First, it acknowledges Justice Alito's comment at an earlier stage of the litigation that "'there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.' The state court’s ruling, Alito argued, wasn’t a genuine act of constitutional interpretation, but had all the 'hallmarks of legislation.'"  But the essay doesn't explain why this position is wrong.  Second, the essay mentions the Atlantic essay by William Baude and Michael McConnell, noted on this blog, but does not discuss the intermediate position they advocate.  Either of these intermediate views would result in the state prevailing in Moore, without the Court embracing the absolutist version of ISLT.

UPDATE/RELATED: Rosemarie Zagarri (George Mason University-History Dept.) has posted The Historian's Case Against the Independent State Legislature Theory (Boston College Law Review, March 2023 (forthcoming)) (31 pages) on SSRN.  Here is the abstract:

This Essay explores historical evidence from the Founding Era underlying Art. 1, Sec. 4 of the US Constitution (and related clauses) that delegate certain powers to state legislatures in making federal election laws. The article shows that far from empowering the state legislatures, the US Constitution was meant to curb state legislative supremacy and confirm the subordination of state legislatures to the checks and balances embedded in the individual state constitutions. It shows that the Independent State Legislature Theory is contrary to both the theory of constitutional government and the practices of state legislatures in making federal election laws.

11/07/2022

A Response to Professor Maltz on the Slaughterhouse Case
Lawrence Lessig

[Ed.: For this guest post we welcome Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law School, to respond to an earlier guest post on this blog.]

I’m honored that Professor Maltz would take time to critique my claims about the Slaughterhouse Case. His essay highlights a point I’ve not sufficiently described, but which does not negate my claim: That the case acknowledges Congress’s power to define federal “privileges or immunities.”

My claim was grounded in a Note by Professor Niko Bowie, written when he was a student at the Harvard Law School. That Note challenged the presumption that the substance of a constitutional provision is determined by Courts alone. As the Supreme Court would describe it — while enforcing it — “[t]he power to interpret the Constitution … remains in the Judiciary,” not Congress.

Bowie argued that this is not true about the “Privileges or Immunities Clause.” That the framers of that clause understood the substance of “privileges or immunities” to be determined — in part at least — both by judges and by legislatures. “The Privileges or Immunities Clause,” as Bowie writes, “was understood as empowering Congress, not just courts, to itemize particular rights as subject to federal protection.”

For purposes of this response, let’s assume Bowie is right. My claim is that if he is right, his understanding makes the Slaughterhouse Cases not just understandable, but affirmatively sensible. Because on this understanding, Justice Miller is simply noting that the unenumerated rights that the butchers were pressing — the rights to free labor — were neither expressed in the text of the Constitution nor in a law of Congress. And therefore, on his reading of the clause, that unenumerated right did not constitute a “privilege or immunity of citizens of the United States.”

This reading is strategically valuable because it removes the court from the enterprise Miller at least was most fearful of — becoming a “a perpetual censor upon all legislation of the States.” Miller was already anxious about the exploding docket inspired by the Civil War Amendments. This way of reading the Clause removed the Court from the highly contestable enterprise of identifying sufficiently important unenumerated rights that should be considered protected by the POIC.

Professor Maltz rejects this reading, relying upon the language in Miller’s opinion directed specifically at Congress. As Miller wrote,

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects.

I’ve highlighted four passages within this quote to make clear the point that I am not making (nor does Bowie). I am not arguing that any “privilege or immunity” protected before the 14th Amendment by the states can be nationalized by Congress. Or again, I’m not claiming that all “privileges or immunities” previously secured by the states were, by virtue of the 14th Amendment, now within the jurisdiction of the federal government. Those claims would be inconsistent with Miller’s words — “all of the civil rights,” “the entire domain,” “any of them,” “on all such subjects.” My claim is that the Court is recognizing that even if Congress has no power to protect “all of the civil rights,” it certainly has the power to protect some.

The textual basis for that claim is the passage that follows immediately after the passage relied upon by Maltz. I quote, and again highlight, it here:

But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.

These two highlighted words open a crack in the door of the jurisdiction that I’m suggesting that Miller was acknowledging. For the text plainly says that Congress’s laws could constitute “such privileges and immunities.” Put differently, just as it would be a mistake, in light of the language Professor Maltz relies upon, to conclude that Congress has the power to regulate “all of the civil rights,” so too would it be a mistake, in light of this language, “its laws,” to conclude that Congress has the power to regulate no civil rights. Miller is rejecting congressional jurisdiction over all. And he is rejecting congressional jurisdiction over none.

So then what laws might occupy the space between all and none?

Well, for one, the most important civil rights act passed by Congress in the first 90 some years after the 14th Amendment was ratified — the Civil Rights Act of 1866. Yes, 1866 predates the 14th Amendment. But it was the question about the constitutionality of that statute, passed under the 13th Amendment, that led the Reconstruction Congress to consider adding the 14th Amendment. After that amendment was enacted, Congress re-enacted the Civil Rights Act.

That act secured to all citizens a non-discrimination right for a wide range of civil rights. Those civil rights included rights that were, before the amendment, protected by state law alone. In the face of their unequal application across the nation, Congress by its act was determining to nationalize those rights. Black citizens in Massachusetts had them; Black citizens in Mississippi did not; Congress decided to nationalize these civil rights, and to secure them equally to all. After the Civil Rights Act of 1870, these civil rights became “Privileges or Immunities of Citizens of the United States.”

As Bowie argues, none of this was obscure to the Congress that passed the 14th Amendment. As he writes,

Virtually all of the debate over section 1 of the Fourteenth Amendment proceeded under the assumption that the section did little other than constitutionalize the Civil Rights Act.

Congress recognized, moreover, that an amendment authorizing the Civil Rights Act under the “Privileges or Immunities Clause” would entail, as Bowie writes, that

it would be for Congress to define and determine by law in what the ‘privileges and immunities’ of citizens of the United States consist.” As Representative Charles E. Phelps observed, if “[t]he ‘privileges or immunities’ of citizens are such as Congress may by law ascertain and define,” then an “act of Congress to define the privileges and immunities of citizens could and doubtless would be made to include the privileges of voting, serving upon juries, and of holding office. Those privileges must, then, be incorporated into the constitution and laws of each of the States . . . .

However “[d]espite these worries,” as Bowie argues, “the amendment passed through Congress by a wide margin and was subsequently ratified in 1868.” Or again,

By 1868, when the Fourteenth Amendment was ratified, it seemed clear to observers that Congress suddenly had the power to define and secure the privileges and immunities of citizenship. What had once been thought of as purely local matters could now be protected by federal legislation.

Bowie recognizes — as do I, more expressly now than I did in the draft that Professor Maltz is commenting upon and so I am grateful to him for calling this out — that this does mean that the Congress has the power to nationalize “all the civil rights.” As Bowie writes, it is

probably correct that Congress never thought it had plenary power to interpret constitutional protections. In 1866, neither the supporters nor the opponents of the Civil Rights Act and Fourteenth Amendment suggested that Congress had the power to create new privileges that no state already protected. Rather, the debate was over whether Congress could take from the states their ability to discriminate along certain lines (such as race) in the provision of certain benefits (such as property ownership). In modern terms, Congress was eliminating any legitimate interest a state might have in discriminating with regard to property ownership, judicial rights, or other state-law functions.

So again, yes, Congress has no power to legislate over “all the civil rights.” But yes, Congress does have the power to legislate over some of “the civil rights” — as it plainly did in the most important civil rights statute it passed until the modern era.

No doubt, this understanding leave a line to be drawn. That line makes sense of Miller’s framing understanding of all three amendments — that they were intended to protect the former slaves. This might suggest a hybrid understanding of the scope of the federal privileges or immunities power: that Congress has the power to render a “privilege or immunity” federal if, and maybe only if, it is addressing some denial of equality. And while the race was the inequality at issue in the Reconstruction Era, as the scope of equality interests recognized by the Court grows, so too would this “Privileges or Immunities” jurisdiction grow. They could federalize to address race inequaity; we, for example, could federalize to address sex inequality.

From the perspective of fidelity to role, it would have been better for Miller to say more clearly how the line between all and none was to be drawn. That he didn’t is a weakness in the opinion. But my point, building on Bowie’s, is that we miss the strength in the opinion if we ignore its plain language — “its laws”—against the background of the legislative elephant that stood in the room — the Civil Rights Act of 1866, reenacted in 1870. No interpretation of the 14th Amendment that draws the 1870 law into doubt can be a fair interpretation of the 14th Amendment. Miller certainly didn’t believe he was drawing the 1870 act into doubt. Neither should we read his words to suggest any differently.

11/06/2022

Steven D. Smith Reviews Phillip Munoz on Religious Liberty
Michael Ramsey

At Public Discourse, Steven D. Smith (San Diego): Bare-Bones Religious Freedom.  From the introduction:

Notre Dame professor Phillip Muñoz’s “natural rights” account of religious freedom generates prescriptions that will be satisfying to nobody—not even, it seems, to himself. The minimalist First Amendment defended in Muñoz’s Religious Liberty and the American Founding (2022), would forbid governments to act like or delegate power to churches or to interfere with “worship as such.” No meddling with the Mass “as such.” Beyond those strictures, governments would be constitutionally free to fund and favor religion, or to restrict and discriminate against religion. The Christian baker who objects to celebrating a same-sex wedding would find no protection in Muñoz’s First Amendment. Indeed, the Constitution would not even protect the Catholic Church from liability under a general antidiscrimination law for its male-only priesthood.

Hardly anyone will find these outcomes attractive, and Muñoz himself seems not especially happy with them either. Muñoz is not at all hostile to religion or religious freedom, and his interpretation allows legislatures to provide broader protections. He embraces the constitutional prescriptions because he believes a faithful interpretation of the Constitution compels them. Muñoz’s central premise is that the Constitution should be interpreted according to the “natural rights” logic that was prevalent in the Founding period; and he tries to follow this logic to its conclusions, come hell or high water. His unappealing prescriptions reflect a kind of courageous integrity.

I admire that integrity, but I also think it is profoundly misguided. In a short review, there is no way to do justice to the scope and intricacy of Muñoz’s account, so I will try only to explain in simplified terms where I think the central error lies. Before undertaking this mostly critical discussion, though, I must acknowledge (too summarily, alas) the book’s considerable virtues. Muñoz’s account exhibits impressive scholarship; it provides a lucid explanation of the Founders’ natural rights thinking; and the examination of constitutional texts is methodical and informative. The analysis of the legislative history of the Establishment Clause is as meticulous as any I have seen.

These are notable accomplishments. And yet . . .

And from later on:

Muñoz believes, however, that there is a kind of natural-rights logic that leads to his minimalist version of religious freedom. Here is the logic, as I understand it: Some rights that would exist in a state of nature are inherently inalienable, because it would simply be impossible for contracting parties to relinquish them. So any social contract would necessarily recognize these particular, impossible-to-relinquish rights. And religious freedom—albeit in an exceedingly narrow conception—is, or was, or would be, one such inalienable right.

And why would it be impossible for hypothetical contracting parties to relinquish this right of religious freedom? Citing seminal statements by Jefferson and Madison, Muñoz suggests that all of us necessarily believe, and cannot help believing, whatever the evidence seems to us to support. Even if you wanted to, therefore, you could not transfer power over your beliefs to government. In that sense, your aboriginal right to believe whatever you actually do believe is literally inalienable. Because this right could not be ceded away in any government-creating social contract, government accordingly can have no jurisdiction in the realm of religious belief– a realm that Muñoz quietly extends to worship.

Conversely, according to Muñoz, you could grant to government the power to regulate conduct– even religiously-motivated conduct. In a pre-political situation you might enjoy a right to conduct yourself according to your religious convictions, but that right is not inalienable. So the natural-rights logic of religious freedom provides no basis for concluding that hypothetical contractors would reserve a free exercise right covering religious conduct.

There is much that might be said about this argument. But even within the artificial confines of a social-contract thought experiment, the argument, if I have understood it correctly, seems doubly infirm. It does not support even Muñoz’s narrow categorical right covering “worship as such.” Suppose we stipulate that people have no control over their religious beliefs (a contestable point, actually), and hence could not relinquish a right to believe as they see fit. The right would cover beliefs, but it is not clear why this right would extend to worship. Governments cannot dictate what people believe in their minds and hearts, let us say; but governments surely can regulate—and often have regulated—how people worship.

On the other hand, even if a broader religious freedom right extending to conduct would not meet the impossibility-of-relinquishment requirement for inalienability, contracting parties who placed great value on religion might nonetheless choose to protect their ability not just to worship but also to live in accordance with their religious beliefs—even if such protection could not be absolute. This is not merely an abstract possibility: Muñoz explains that proponents of an “expansive liberalism” version of natural rights (including Madison) did hold that “religion itself, not just religious worship, lies beyond the legitimate jurisdiction of government.” Given the fictional nature of the social contract, who can say they were wrong?

Professor Munoz responds here: Before Critiquing the American Founding, We Should First Understand It.

Professor Smith has this reply: Minimalist Religious Freedom as a Self-Inflicted Wound.

11/05/2022

Turning Vermeule’s Argument for Redefining Originalism on its Head
Chris Green

In his response at the end of a conference at Harvard on common-good constitutionalism, Adrian Vermeule once again (see here) claims that he is not an originalist, despite embracing the claim, long considered by many to be definitive of originalism, that the meaning expressed by constitutional text in its original context is binding.  He explains:

[S]emantic meaning is fixed in a thin sense. To use an example that came up earlier, I do very much hope that the “Republican Form of Government” clause does not mean that Mitch McConnell is to be our sole governor. But this thin sense of fixation turns out to be absolutely common ground across originalist and non-originalist legal systems. European judges who think originalism is absurd may and do assent to it just as well. Hence this thin sense does not at all entail any of the further premises of modern American originalism....

The reasoning here—the argument embedded in the “hence”--seems to be

(1) European judges embrace the bindingness of the meaning expressed by text in its original context,

(2) European judges aren't originalist in the American sense, so

(3) Originalism in the American sense is more than the bindingness of the meaning expressed by the text in its original context.

But the conclusion here, (3), is very implausible. Lots and lots of people have long defined originalism as the bindingness of the meaning expressed by the text in its original context. It seems that we should be much more confident of the denial of the conclusion (3) than we are of premise (2).

Accordingly, it seems a much better argument—one with premises of which we should be more confident—is from the denial of (3) and (1) to the denial of (2).  Originalism is the bindingness of the meaning expressed by the text in its original context; European judges embrace that; so it turns out they are originalists after all. It doesn’t make sense to be more confident about cross-cultural ascriptions of theoretical terms (i.e., whether Europeans are originalists in an American sense) than about originalists’ long-standing definitions of their own theoretical terms. It thus makes most sense to view European judges—and Vermeule himself!—as unwitting originalists.

Further, rather than using natural law to override original meaning, as a means of escaping being “enslaved to the original meaning of the Constitution,” as he did in his book, Vermeule now seems to use natural law only as a means of discerning original meaning when it is unclear. Quoting Helmholz, Vermeule pines for the days when natural law “was used to discover the meaning of existing laws [and] to help supply the answer to a legal question where the import of positive law was uncertain.” Vermeule seems to have retreated, and sensibly so, to the position of John Marshall in United States v. Fisher in 1805: “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” I hope he stays there!

Charles Pinckney and Moore v. Harper
Michael Ramsey

Hansi Lo Wang has this interesting article for NPR: A controversial election theory at the Supreme Court is tied to a disputed document.  From the introduction:

In their bid to promote a once-fringe legal theory that could upend election laws across the country, Republican state lawmakers in North Carolina have turned to a document whose reliability has long been under serious doubt.

The North Carolina Republicans are claiming in a court filing for their U.S. Supreme Court case [ed.: Moore v. Harper] that the words of Charles Pinckney — a delegate from South Carolina who presented a plan of government during the Constitutional Convention of 1787 — help prove that the framers intended to give state lawmakers almost unfettered authority over how elections for Congress are run without any checks or balances from state courts or state constitutions.

But 235 years after the historic convention was held in Philadelphia under a rule of secrecy, no undisputed record of what's known as the Pinckney Plan has been found, leaving exactly what he presented and how much influence it had on the drafting of the U.S. Constitution to be an enduring mystery of the country's founding.

On the issues with the Pinckney plan generally:

The storied gathering that gave birth to the country's founding document was not a well-documented event.

So in 1818, when then-Secretary of State John Quincy Adams was tasked to oversee the first publishing of the Constitutional Convention's official records, the future U.S. president had to write to Pinckney to ask for a copy of the plan he had proposed.

Pinckney replied to Adams that he had "several rough draughts" and "at the distance of nearly thirty two Years it is impossible for me now to say which of the 4 or 5 draughts I have was the one but enclosed I send you the one I believe was it."

That one was published as the Pinckney Plan, sparking debates about Pinckney's actual contributions to the Constitution that have continued into the 21st century.\

...

Former President James Madison — who is known to have taken the most comprehensive notes in 1787 as a convention delegate — had suspicions that the version of the plan sent to Adams in 1818 did not accurately represent what Pinckney proposed at the meetings.

In the appendix of his papers published in 1840, Madison noted that "it was apparent that considerable error had crept into the paper" after comparing the 1818 version of the plan with the Constitution's drafts and final version, along with notes about Pinckney's remarks. ...

Specifically as to the supposed significance of Pinckney in Moore:

Trying to cast aside Madison's and others' skepticism of the 1818 version of the Pinckney Plan, North Carolina Republicans are now arguing in Moore v. Harper — their redistricting case at the Supreme Court — that the document is part of a trail of evidence suggesting the Committee of Detail specifically intended to designate legislatures as the only state entity to have control over congressional elections.

The GOP state lawmakers are using that interpretation to help build their case in support of what's known as the independent state legislature theory, which — if endorsed by the country's highest court — could upend election laws around the U.S., curtail the role of state courts and supercharge the power of state lawmakers over federal elections.

The Moore case centers on the Elections Clause of the U.S. Constitution, which says:

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

The North Carolina Republicans argue in their court filing that "the earliest draft" of the Elections Clause can be found in the 1818 version of the Pinckney Plan, which says:

"Each State shall prescribe the time & manner of holding Elections by the People for the house of Delegates & the House of Delegates shall be the judges of the Elections returns & Qualifications of their members."

The Committee of Detail — claims the lawmakers' filing, which points to handwritten edits to a draft constitution — "deliberately changed the Constitution's language to specify that state legislatures were to exercise that power, not any other state entity and not the State as a whole."

And some law professor commentary:

Regardless of what the original Pinckney Plan of 1787 actually did or did not include, many constitutional scholars say that parsing words from notes and drafts from the Constitutional Convention is besides a key point in Moore v. Harper.

"The word 'legislature' did not float freely—independently—in the eighteenth-century air. Rather, the word was grounded in Founding-era law and theory: A 'legislature' was a creature of its master constitution," write Akhil Reed Amar, Vikram David Amar and Steven Gow Calabresi in a friend-of-the-court brief filed in support of the North Carolina Republicans' opponents in the redistricting case.

Focusing on the Pinckney Plan does not help answer the core questions this case raises, says Amar, a Yale University law professor and author of The Words That Made Us: America's Constitutional Conversation, 1760-1840.

"One guy submits a piece of paper. So what? The committee may not have even paid any attention to that piece of paper," Amar says. "Let's focus on the big picture — the Articles of Confederation."

An originalist analysis of the Constitution, Amar contends, is best done when focusing on public sources. And in that public predecessor to the U.S. Constitution, Amar argues, there are words that foreshadow the Constitution's Elections Clause — "delegates shall be annually appointed in such manner as the legislature of each State shall direct."

Using the word "legislature" in the Elections Clause, as the brief by Amar and his co-authors puts it, "offered a comforting textual continuity with the Articles" and echoed this notion: "If state constitutions could (and did) dictate rules for state legislatures in the congressional-selection process under the Articles, surely state constitutions could likewise dictate rules for state legislatures in the congressional-selection process under the Constitution."

[Edward] Larson, the Pepperdine professor of history and law, adds that the Elections Clause's wording "does have strong suggestions that a state court can't unilaterally" determine how to run congressional elections.

"But it doesn't suggest that the state court doesn't have its normal powers of review and declaring what the state legislature had done was unconstitutional and then sending it back to the state legislature to try to do it right," Larson adds.

(Via How Appealing).

Methodologically I think Professor Amar has it right: public documents like the Articles provide more reliable context, and it's hard to know the significance of Pinckney's suggestions even if he really made them at the Convention (and we can't be sure he did).  When the Constitution carried over language from the Articles, that's pretty good evidence that it was understood to carry over the associated practices from the Articles period as well.

On the merits, I think Professor Larson is right to point to a middle ground.  See here from William Baude and Michael McConnell.

11/04/2022

Judge David Stras on "Wanted" Posters
Michael Ramsey

Circuit Court originalism from Judge David Stras (8th Circuit), concurring in part and concurring in the judgment in Furlow v. Belmar, involving a Fourth Amendment challenge to the St. Louis County (Mo.) Police Department practice of "issuing electronic notices (“Wanteds”) authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance."  Judge Stras' opinion begins:

Think of the iconic wanted posters of the old west. They contained just a few basic pieces of information: the name of the outlaw, his image, a reward for his capture, and the crime he committed. See, e.g., Barbara Fifer & Martin Kidston, Wanted!: Wanted Posters of the Old West (2003); Leanna S. Schooley & Tom Kellam, Wanted in America (2019). The posters for Jesse James and John Wilkes Booth followed this formula. See Photographs of John Wilkes Booth and Jesse James Wanted Posters, in Sophie Tanno, $5,000 for Jesse James ‘Dead or Alive’ and $100,000 for Lincoln’s three killers: The fascinating wanted posters for America’s biggest 19th century criminals, DailyMail (July 24, 2019, 9:25 AM), https://bit.ly/3SVNPng. And sometimes, like during the manhunt for Jesse James, the poster would contain three words no outlaw would want to see: “DEAD OR ALIVE.” See id.

Although the old west is a bygone era, wanted posters still exist today. Except now officers send out electronic messages and place the information in a computer database. The question is whether these “wanteds,” as St. Louis County calls them, violate the Fourth Amendment. Based on the long common-law tradition of warrantless felony arrests supported by probable cause, I would conclude that the answer is no.

And from later on:

... [W]anteds in some form have been a staple of American life since the Founding. In the 1780s, officials issued proclamations announcing the identity of fugitives and a reward for their capture. During Shays’ Rebellion, for example, a proclamation from Massachusetts Governor James Bowdoin declared a reward for the capture of the rebels and “enjoined and required” all “judges, justices, sheriffs, and constables” to “use their utmost endeavours [sic] to apprehend and secure” them. Photograph of a 1787 Proclamation Offering a Reward for the Apprehension of Daniel Shays and Others, in America’s Historical Imprints, at 1 Early American Imprints, No. 20623; see also Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle 19 (2002); Thomas Chittenden, A Proclamation, in Public Papers of Governor Thomas Chittenden 679–81 (John A. Williams ed., 1969) (reproducing a proclamation by the Governor of Vermont to assist in the capture of the rebels). And later, in the old west, sheriffs “spread[] the news of wanted fugitives to their known haunts and along likely paths of escape” through mail, telegraphs, and posters. Fifer & Kidston, supra, at 5. The person making the arrest often did not have personal knowledge of the crime the outlaw committed. See id. at 6 (explaining that local law-enforcement agencies used wanted posters to ask surrounding jurisdictions for “help in capturing and holding fugitives until one of their [own] officers could arrive”). Even so, no one really questioned the constitutionality of the practice.

According to an early Massachusetts case, the common law may have provided the reason. In Commonwealth v. Carey ... the Massachusetts Supreme Judicial Court declared that

if a constable or other peace-officer arrest[s] a person without a warrant . . . [and] suspects [a felony] on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of [a] felony, the arrest is not unlawful.

66 Mass. (12 Cush.) 246, 251 (1853) (emphasis added). That basic rule, combined with the fact that the constable or peace officer “ha[d] a right to summon others to assist him in making the arrest,” gave us all the ingredients for what eventually became the collective-knowledge doctrine. See Commonwealth v. Phelps, 209 Mass. 396, 410 (1911). The Supreme Court agreed a few years later when it declared that probable cause could come from either an officer’s “own knowledge of facts, or on facts communicated to him by others.” Carroll, 267 U.S. at 161 (relying on both Massachusetts cases).

In conclusion:

[T]he longstanding common-law rule is that officers can arrest suspected felons if they have probable cause, regardless of whether they have a warrant. See Watson, 423 U.S. at 419; see also Rohan, 59 Mass. at 284. And second, an officer can rely on a wanted poster, bulletin, or flyer if another officer had probable cause to issue it. See Hensley, 469 U.S. at 230–31; see also Whiteley, 401 U.S. at 568.

RELATED:  For an earlier related originalist Fourth Amendment opinion by Judge Stras, see here.

11/03/2022

New Book: "A Principled Constitution?" by Steven D. Smith et al.
Michael Ramsey

Recently published, by Steven D. Smith (San Diego), Larry Alexander (San Diego), James Allan (Queensland) and Maimon Schwarzschild (San Diego): A Principled Constitution?: Four Skeptical Views (Lexington Books 2022).  Here is the book description from Amazon: 

Is the United States Constitution the embodiment of certain principles? The four authors of this book for a variety of reasons, and with somewhat different emphases, believe the answer is no. Those who authored the Constitution no doubt all believed in liberty, equality, and, with caveats, republican self-government values, or if you will, principles. But they had different conceptions of those principles and what those principles entailed for constituting a government. Although the Constitution they created reflected, in some sense, their principles, the Constitution itself was a specific list of do’s and don’ts that its creators hoped would gain the allegiance of the newly independent and sovereign states. And, for somewhat different reasons, the authors of this book believe that was a good thing.

11/02/2022

Jeffrey Pojanowski & Kevin Walsh on Vermeule's Common Good Constitutionalism
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) & Kevin C. Walsh (Columbus School of Law, The Catholic University of America) have posted Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule's New Theory (Notre Dame Law Review, forthcoming) (60 pages) on SSRN.  Here is the abstract:

Professor Adrian Vermeule has provoked renewed interest in the relationship between the classical natural law tradition and the Constitution of the United States with his book, Common Good Constitutionalism. As scholars working in that tradition, we welcome contemporary attention to that perennial legal philosophy. Nevertheless, we find Vermeule's rendition wanting. He neglects the way in which the classical legal tradition calls for obedience to the Constitution of the United States as not just the law, but also a law—an ordinance of reason, for the common good, made by one with authority, and promulgated. Vermeule’s version of constitutionalism, which too often substitutes Dworkin’s hermeneutics for a classical understanding of law, is attentive to certain conceptions of reason and the common good, but inattentive to authority and promulgation. With respect to all four of these elements, moreover, Vermeule’s constitutionalism is unanchored historically. He argues for “classical constitutionalism” that is not “enslaved to the original meaning of the Constitution.” But obedience to original law except as lawfully changed is not akin to enslavement that one must overcome. A real law deserves our real obedience, but Vermeule’s version of common good constitutionalism is indifferent—rather than obedient—to the promulgated Constitution. Vermeule's new theory of common good constitutionalism is not a sound classical approach to our Constitution, but rather a deft Dworkinian account that fits and justifies a different order than the one we have inherited.

11/01/2022

William Baude & Stephen Sachs: The Official Story of the Law
Michael Ramsey

[Editor's note: apologies for recent intermittent posting and access.  Our hosting service has been experiencing some issues.]

William Baude (University of Chicago - Law School) & Stephen E. Sachs (Harvard Law School) have posted The Official Story of the Law (Oxford Journal of Legal Studies, forthcoming) (24 pages) on SSRN.  Here is the abstract:

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.

Via Volokh Conspiracy, where the authors add: 

As a matter of constitutional law, our argument responds to a recurring question about how to think about "our law" of constitutional interpretation. Suppose one thinks that judges systematically invoke one set of considerations in their official legal reasoning, while being motivated behind the scenes by something else. (For instance, one might think that courts publicly reason in terms consistent with original law originalism, while actually trying to promote some set of non-legal policy goals.) The Official Story explains why the rules of our legal system are evidenced by the former rather than the latter.

This is an excellent short essay that clarifies in my mind the disagreement I have with the authors regarding originalism.    I just don't think that modern U.S. constitutional law has an "official story" in this sense (other than that the law is what the Supreme Court says it is until the Court says otherwise).  Originalism, in my view, is the movement to convince the legal culture that the "official story" ought to be adherence to the Constitution's original meaning.