Three Not Very Interesting Cases from the Supreme Court
Michael Ramsey

Yesterday the Supreme Court decided three closely watched cases, Fulton v. City of Philadelphia (religious liberty), Nestlé USA, Inc. v. Doe I (Alien Tort Statute), and California v. Texas (Obamacare again). Sadly, or perhaps fortunately, none produced consequential results.  Ed Whelan at NRO Bench Memos has a good overview of the first two here and here.  At Volokh Conspiracy, Jonathan Adler, Josh Blackman, Ilya Somin, and Eugene Volokh have more.

In California v. Texas, the Court (7-2) found no standing.  I don't really have an originalist perspective on that conclusion, though it seems to me that states suing to vindicate what are effectively individual rights is an odd invocation of the judicial power.

In Fulton, the important question was whether the Court would uphold or overrule Oregon v. Smith, Justice Scalia's key 1990 case restricting the scope of free exercise claims, which has been sharply criticized on originalist grounds.  The Court gave no answer; the majority found the claimants won even under the Smith test, while the concurring opinions debated Smith's future. As Ed Whelan summarizes:

In a three-paragraph concurring opinion, Justice Barrett offers her view that the “textual and structural arguments against Smith are more compelling” than the historical arguments against it. But, asking “what should replace Smith?” if it were to be overruled, she says that she is “skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime.” Justice Kavanaugh joined Barrett’s opinion in full. Justice Breyer joined two of its paragraphs, but not the one expressing doubts about the correctness of Smith.

In a 77-page opinion concurring in the judgment ... Justice Alito, joined by Justices Thomas and Gorsuch, calls for Smith to be overruled and laments that the Court has instead “emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.” ...

As to what should replace Smith, Alito responds:

The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.

In his own concurrence in the judgment, Gorsuch, joined by Thomas and Alito, criticizes the majority for a “dizzying series of maneuvers” that enable it to avoid addressing Smith.

Overall, there would appear to be at least five justices ready (Thomas, Alito, and Gorsuch) or disposed (Barrett and Kavanaugh) to overturn Smith. But Barrett and Kavanaugh are not yet confident what rules should replace Smith.

In Nestlé (a case in which I joined an amicus brief supporting petitioners) the key question was whether the Court would return the Alien Tort Statute (ATS) to something like its original meaning.  The answer was that the Court would continue to equivocate.  Here's Ed Whelan's summary of the main opinions:

1. In Part II of Justice Thomas’s lead opinion joined by seven other justices (all but Justice Alito), the Court holds that the plaintiffs are improperly seeking extraterritorial application of the ATS. “Nearly all the conduct that [plaintiffs] say aided and abetted forced labor … occurred in Ivory Coast.” While they pleaded that every major operational decision was made in or approved in the United States, “allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.”

2. Justice Thomas, joined by Justices Gorsuch and Kavanaugh, argues in Part III of his opinion that the federal courts should not create private rights of action under the ATS for violations of international law beyond the three historical torts that the Court identified in its 2004 ruling in Sosa v. Alvarez-Machain—namely, violation of safe conducts, infringement of the rights of ambassadors, and piracy. The creation of any other causes of action should be left to Congress. (Gorsuch, joined by Kavanaugh, elaborates on this point in a separate concurrence.) ... [There was also a concurrence by Justice Sotomayor and a dissent by Justice Alito.]

I think Justice Thomas is sort of right (as an original matter) in Part III. Federal courts should not create federal causes of action under the ATS.  The ATS is just a jurisdictional statute, as its plain language makes clear. ("The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.")  So the plaintiffs/respondents, who sought a federal cause of action, rightly lost. 

But the fact that plaintiffs lack a federal cause of action shouldn't mean there isn't federal jurisdiction.  There obviously is federal jurisdiction -- if not under the ATS, then under diversity jurisdiction (plaintiffs are aliens and the defendants are U.S. corporations).  The decisive question ought to be whether the plaintiffs have a cause of action from some non-federal source,  such as state law or foreign law.    (I discussed this approach more in a post at Just Security last December.)

It's disappointing that no one on the Court wants to focus on this point, because it would make ATS cases conceptually much easier (and restore something like the original meaning).  Instead, the Court continued to pursue the idea of an extraterritoriality limit on the ATS, which still seems wrong to me.  No one thinks the diversity jurisdiction statute has an extraterritoriality limit, so why should we think the ATS has one?  Plus the Court's focus on extraterritoriality implies that courts might be able to create federal causes of action under the ATS for territorial torts, though in fact I doubt there are five Justices who actually think that.

So in short, three cases that don't resolve anything important.


A Group of States Can Collectively Restore Various Old Punishments by Making Them “Usual” Again Instead of “Unusual”
Andrew Hyman

When the framers of the Constitution banned cruel punishments that are “unusual,“ they may well have had foremost in mind cruel punishments that are contrary to long usage.  But, courts nowadays also emphasize current geographic unusualness, in addition to historical unusualness, and thus federal courts often engage in headcounting of states. Once a headcount is used to strike down a punishment, states are understandably reluctant to try resuscitating that punishment. However, the ban on “cruel and unusual punishments” need not operate as a one-way ratchet that permanently locks in punishment reductions.  The ban on cruel and unusual punishments does not prevent states from cooperatively resuscitating a punishment that has been properly struck down by the courts, assuming that the punishment was not unusual during some lengthy part of U.S. history.

Law Professor Jeffrey Usman wrote in 2018 about the potential use of contingent legislation to counter the one-way ratchet effect.   Legislation mandating a punishment can expressly say that it will not take effect unless a certain number of states and/or Congress implement similar legislation, and so the punishment in question can thus be rendered “usual” instead of “unusual.”   According to Usman, “Based upon existing Supreme Court precedent, sixteen states seems an appropriate, though admittedly somewhat arbitrary, choice.”

A 2008 U.S. Supreme Court case suggests that many states do not realize their own power in this regard.  As Justice Alito wrote at that time in the case of Kennedy v. Louisiana (for himself and three other justices), previous Supreme Court dicta had “stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency.”  Unfortunately, that stunting effect may have been inadvertently prolonged beyond 2008 by a remark that Justice Scalia made (joined by Chief Justice Roberts): “the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case....”  So why would a legislator try to go against the majority’s decision?  Actually, Justice Kennedy’s majority opinion in that case did show some respect for the views of the American people (citations omitted):

There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society.  These statistics confirm our determination from our review of state statutes that there is a social consensus against the death penalty for the crime of child rape.

Notice that I suggested (above) legislation “mandating” a punishment.  State legislation that merely “allows” courts or juries to impose a punishment might not be enough, per the Court’s opinion in Kennedy v. Louisiana (blockquoted above).  In the context of child rape, for example, legislators could require the death penalty in virtually all cases where an adult defendant who is not mentally disabled rapes multiple victims under the age of fourteen causing serious physical injury to them.  Putting child rape aside, similar observations apply to all kinds of punishments for all kinds of crimes, and legislators are not helpless before a court system that decides all by itself what punishments are appropriate or inappropriate.  After all, that’s why the word “unusual” is in the Eighth Amendment.

Once the courts have correctly deemed an old punishment to be “cruel and unusual,” can it eventually become usual again?  Of course it can. Many punishments are initially very unusual but later become usual, such as electronic tagging during home confinement, or speeding tickets (the first one in 1896 was for speeding at 8 mph in a 2 mph zone).  If the new punishment is the same as (or no more onerous than) a punishment that had long been widely accepted in the United States (e.g. when the constitutional clause took effect), then there likely is no obstacle preventing legislatures from cooperatively implementing it once again, notwithstanding an intervening court decision that correctly struck it down for having become unusual.  Of course, courts obviously cannot strike down punishments merely because they think they are cruel.  

Professor Usman argues that contingent legislation regarding punishments would not violate the Compact Clause, but I doubt it based on original meaning. That issue disappears if Congress consents to the contingent legislation, but it may be hard to obtain that consent.  Therefore, instead of making the legislation contingent upon action by a number of other states, it might well be better to make it contingent upon a judicial decision that the legislation comports with the Eighth and Fourteenth Amendments.  Or just pass it without any contingency language, and let its enforcement be enjoined by courts until enough states emulate it.

Tenth Circuit Rejects Samoans' Bid for U.S. Citizenship
Michael Ramsey

A divided panel of the Tenth Circuit held Tuesday in Fitisemanu v. United States that persons born in American Samoa (a U.S. territory) are not U.S. citizens, even though the Fourteenth Amendment says that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States...." I'm disappointed in the outcome, as I think (as I argued in Originalism and Birthright Citizenship) that the original meaning of the Amendment is clear: American Samoa is "in" the United States and thus anyone born there is a U.S. citizen. (Also I joined a professors' amicus brief in support of the claimants.)

Judge Bacharach has an originalist/textualist dissent that (unsurprisingly) I find entirely persuasive.  (And many thanks to him for the citations to my article, though he goes well beyond it in finding historical sources).  On the central point, he begins:

To determine the meaning of the Citizenship Clause, we first consider the public understanding of the phrase “in the United States” from 1866 to 1868. At that time, Congress and ordinary Americans understood that U.S. citizenship extended to everyone born within the nation’s territorial limits who did not owe allegiance to another sovereign entity. This understanding is reflected in (1) the judicial opinions decided by 1868, (2) the dictionaries, maps, and censuses from the era, (3) the debates surrounding the Citizenship Clause, and (4) the common law’s conception of a citizen.

And from further along:

To discern what ordinary Americans meant in 1866 to 1868 by the phrase “in the United States,” we can consider contemporary judicial opinions. In the nineteenth century, “[c]ourts . . . commonly referred to U.S. territories as ‘in’ the United States.” Michael D. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L.J. 405, 426 (2020). For example, in the early part of the century, the Supreme Court observed that “the United States” “is the name given to our great republic, which is composed of States and territories” and “the territory west of the Missouri [was] not less within the United States . . . than Maryland or Pennsylvania.” Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820) (Marshall, C.J.).

Justice Story, riding Circuit, also explained that “[a] citizen of one of our territories is a citizen of the United States.” Picquet v. Swan, 19 F. Cas. 609, 616 (C.C.D. Mass. 1828). About 25 years later, the Court considered whether U.S. tariffs had been properly applied to products coming from outside the United States into the Territory of California after its cession by treaty. Cross v. Harrison, 57 U.S. (16 How.) 164, 181, 197 (1853). The Court answered “yes,” considering the Territory of California as “part of the United States.” Id. at 197–98.

And in 1867, the Supreme Court observed that U.S. citizens included inhabitants of “the most remote States or territories.” Crandall v. State of Nevada, 73 U.S. (6 Wall.) 35, 48–49 (1867) (quoting Smith v. Turner (The Passenger Cases), 48 U.S. (7 How.) 283, 492 (1849) (Taney, C.J., dissenting)).

Plus he has some super cool maps that I wish I'd found for my article.

And on the congressional debates:

Even if we were to look beyond the constitutional text, however, we would find confirmation of the unambiguous meaning of the Citizenship Clause. One meaningful source is the congressional debates leading to the enactment of the Citizenship Clause; the statements in these debates provide “valuable” input on what “contemporaneous opinions of jurists and statesmen” regarded as the “legal meaning” of the Citizenship Clause. United States v. Wong Kim Ark, 169 U.S. 649, 699 (1898). These statements can also provide evidence of the people’s understanding, especially if “there is evidence that these statements were disseminated to the public.” McDonald v. City of Chicago, 561 U.S. 742, 828 (2010) (Thomas, J., concurring in part & concurring in the judgment).

Senator Jacob Howard proposed amending the Constitution to include the Citizenship Clause. Cong. Globe, 39th Cong., 1st Sess. 2869 (1866). The Senate adopted his proposed amendment after considering whether its language extended citizenship to the children of American Indians and Chinese immigrants. Id. at 2890–97. In wording the amendment, Senator Howard drew from Senator Lyman Trumbull’s draft of the 1866 Civil Rights Act. Id. at 2894. Given the reliance on the Civil Rights Act, Senator Trumbull commented on his understanding of the phrase “in the United States,” stating that it “refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.” Id. at 2894.

Eleven other Senators spoke, all agreeing with Senator Trumbull. Id. at 2890–97. For example, in discussing the extension of citizenship to children of American Indians, the Senators considered the Ojibwe (Chippewa) people in the state of Wisconsin, the Navajo Nation in the then-territory of New Mexico, and the Tribes in the unorganized “region of the country within the territorial limits of the United States.” Id. at 2892, 2894. No Senator questioned whether residents of the American Indian tribes were “in the United States.” Id. at 2890–97; Michael D. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L.J. 405, 427–29 (2020). Each “knew and properly respected the old and revered decision in the Loughborough-Blake case,” where Chief Justice Marshall had referred to “the United States” as “the name given to our great Republic which is composed of States and territories.” Letter from J.B. Henderson to Hon. C.E. Littlefield (June 28, 1901), reproduced in Charles E. Littlefield, The Insular Cases (II: Dred Scott v. Sandford), 15 Harv. L. Rev. 281, 299 (1901) (quoting Loughborough v. Blake, 18 U.S. 317, 319 (1820)).

News of this debate was carried the next day in the New York Herald, the country’s best-selling newspaper, and other papers. See N.Y. Herald, May 31, 1866, at 1; Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 187 (Yale Univ. Press, 2008); see also N. Y. Times, May 31, 1866, at 1 (carrying the debate); Chi. Trib., May 31, 1866, at 1 (carrying the debate). So the Citizenship Clause was understood to apply to the territories.

This all sounds exactly right to me.  I wish it were not from the dissent.

Thanks to Neil Weare and Josh Blackman for the pointer.


Sandra Rierson: Tracing the Roots of the Thirteenth Amendment
Michael Ramsey

Sandra L. Rierson (Thomas Jefferson School of Law) has posted Tracing the Roots of the Thirteenth Amendment (University of Missouri-Kansas City Law Review, forthcoming) (64 pages) on SSRN.  Here is the abstract:

This article examines the origins of the Thirteenth Amendment to the United States Constitution, which ended chattel slavery in the United States. The 1776 Report, released in the waning days of the Trump Administration, proclaims that “[t]he foundation of our Republic planted the seeds of the death of slavery in America,” and, further, the Declaration of Independence and the Constitution “set the stage for abolition.” The report suggests that the Thirteenth Amendment sprang from a preordained Revolutionary seed and naturally came to fruition.

The history of the Thirteenth Amendment tells a different story. The Thirteenth Amendment’s nationwide abolition of chattel slavery, under the authority of the federal government, required a radical reordering of fundamental Constitutional principles that did not proceed in a straight line from the Declaration of Independence to Emancipation. Part I of this article examines that history at the time of the Founding. Prior to ratification of the Thirteenth Amendment, the word “slavery” did not appear in the Constitution, yet its influence reverberated throughout the document. Part II of the article examines the surprisingly dim prospects for nationwide emancipation in the antebellum period, as illustrated by the Dred Scott decision and the Corwin Amendment, which almost precluded any future Constitutional amendment ending slavery. The eventual adoption and ratification of the Thirteenth Amendment in 1865 was a monumental achievement, not a foregone conclusion.


The Fourteenth Amendment and Voting Rights
Earl Maltz

[Ed.: For this guest post we again welcome Earl M. Maltz, Distinguished Professor of Law at Rutgers Law School.]

In his recent statement on voting rights, Attorney General Merrick Garland declared that “John Bingham—the principal author of the Fourteenth Amendment—called the right to vote the source of all institutions of democratic government.”  This statement was clearly intended to imply that Bingham designed section one of the amendment with the idea of protecting voting rights in mind.   In fact, nothing could be further from the truth.

Section one was an alteration to a five-part constitutional amendment that had been proposed by Republican activist Robert Dale Owen.  Among other things, the Owen amendment would have barred racial discrimination in “civil rights” and also provided that, after July 4, 1876, “no discrimination shall be made…as to the enjoyment of the right to suffrage…on the basis of race, color, or previous condition of servitude.”  Almost immediately after the Owen amendment was presented to the Joint Committee on Reconstruction, on April 21, 1866, Bingham moved to have the current language of section one added to the proposal.  Although Bingham was initially successful in convincing all of the Republicans on the committee to support his motion, four days later the committee reversed itself and at one point voted to report the Owen amendment, including the section dealing with voting rights, without the Bingham language.

However, the proceedings of the joint committee took a very different turn after it became clear that many moderate and conservative Republicans objected to the idea of including protection for voting rights in the constitutional amendment.  Seeking to mollify this group, on April 28, Bingham was one of a group of Republican committee members who banded together with Democrats to remove the prohibition on racial discrimination in voting rights from the proposal.   It was only after this action had been taken that the committee voted to replace the civil rights provision of the Owen amendment with the race-blind language that Bingham had proposed the week before. 

Speaking on behalf of the committee, Republican Sen. Jacob M. Howard of Michigan described the import of these changes in introducing the proposed constitutional amendment to the Senate as a whole.  While noting that he would have preferred language that would have required states to allow Black people to vote, Howard insisted that section one “does not give [African-Americans] the right of voting” and that the amendment as a whole “leaves the right to regulate the elective suffrage still with the states, and does not meddle with that right.”  In short, whatever else one might say about the original meaning of section one or the intentions of John Bingham, one point should be crystal clear:  section one was neither designed nor originally understood to confer voting rights on anyone.


Kristin Hickman: Nondelegation As Constitutional Symbolism
Michael Ramsey

Kristin E. Hickman (University of Minnesota Twin Cities - School of Law) has posted Nondelegation As Constitutional Symbolism (George Washington Law Review, Vol. 88, 2021) (56 pages) on SSRN.  Here is the abstract:

The divided Supreme Court in Gundy v. United States and subsequent events have given rise to a general expectation that the Court will soon revitalize the nondelegation doctrine by replacing the intelligible principle standard. Some have greeted the prospect of this doctrinal shift with cheers of exaltation, others with cries of impending doom, anticipating the demise of the administrative state. This article contends that these predictions are overblown.

Statutory delegations of rulemaking authority and policymaking discretion are more deeply embedded in American law, and more complicated and variable, than proponents of the nondelegation doctrine seem willing to acknowledge. The alternatives to the intelligible principle standard proposed by Justices Gorsuch and Kavanaugh are piecemeal—case by case, statute by statute, delegation by delegation. Consequently, should the Court replace the intelligible principle standard, the most likely outcome is doctrinal change that is more incremental and symbolic than substantial.

More categorical and sweeping alternatives are available. Among them, this article particularly documents the common understanding in the first half of the twentieth century that regulations adopted under statutory delegations of general rulemaking authority (as opposed to specific authority grants) could not be legally binding without violating the nondelegation doctrine. But the Court has expressed little interest in a broad, categorical standard.

The decision whether to replace the intelligible principle standard should be evaluated in terms of incremental and symbolic doctrinal change, rather than as the dramatic alteration of the administrative state that some Court observers anticipate.

This article will be published as the Foreword to the George Washington Law Review's annual administrative law issue.

Via Larry Solum at Legal Theory Blog, who say "Highly recommended."


Seth Barrett Tillman: What Oath (if Any) Did Jacob Henry Take in 1809?
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths (36 pages) on SSRN.  Here is the abstract:

The story of Jacob Henry is one which has been told and retold. It has been long celebrated, as a triumph of light over darkness, and of the progress of then-emerging American religious tolerance over older traditions of parochialism and intolerance. Our story starts with Article 32 of the 1776 North Carolina Constitution. That provision imposed a religious test:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Article 32’s religious test extended to four categories of persons. It extended to atheists—those “who . . . deny the being of God.” It extended to non-Protestants—those “who . . . deny . . . the truth of the Protestant religion.” It extended to non-Christians—those “who . . . deny . . . the divine authority either of the Old or New Testaments.” Lastly, it extended to an amorphous category of persons—those “who . . . hold religious principles incompatible with the freedom and safety of the State.” A person falling into any of these four categories was not “capable of holding any office or place of trust or profit in the civil department within this State.” The meaning and scope of Article 32’s language has been a matter of continuing debate.

In 1809, Jacob Henry was elected to a second, consecutive annual term in the House of Commons, ie, North Carolina’s lower legislative house, as one of two members for Carteret County. According to the standard narrative, Henry was Jewish. Legislative elections were held during August 1809. The returning officers reported those persons who had been duly elected, that is, the members-elect. On November 20, 1809, the House of Commons convened in Raleigh, North Carolina, and the members-elect qualified by taking their oaths. On December 5, 1809, Hugh C. Mills, one of two members for Rockingham County, put forward a motion to declare Henry’s seat vacant based (at least in part) on Article 32 of the 1776 North Carolina Constitution. The next day, on December 6, 1809, Henry gave an impassioned speech in his own defense before the full House. Many ascribe the authorship of Henry’s speech, in whole or in part, to Judge Taylor, a Republican. Henry’s speech made no express reference to his being Jewish, and his speech did not use the words “Jewish,” “Judaism,” or “Jews.” Afterwards, Mills attempted to introduce evidence to support his allegations. But his efforts to do so were immediately thwarted by William Gaston, the single member for the town of New Bern.

Gaston argued that introducing evidence was premature at this stage. In other words, Gaston argued that Mills’s charges were insufficient as a matter of law, and so the introduction of evidence was not necessary. Gaston further argued that if the House determined that an investigation of the facts were necessary, then proceedings should be directed to a select committee or the committee of the whole. Additionally, Gaston made the argument that Article 32 reached only “offices,” not members of the legislature—and so it had no application to Jacob Henry. Gaston’s lengthy speech was followed by extensive debate among more than a few members of the Commons. Subsequently, the matter was redirected to the House’s Committee of the Whole, which heard testimony from witnesses. The committee recommended that the House reject the motion, and the House voted in favor of the committee’s recommendation. Henry kept his seat. Some reports indicate that the Commons voted unanimously to reject Mills’s motion.

The Jacob Henry literature has been primarily concerned with two questions. First, why did the members of the North Carolina House of Commons on December 6, 1809 vote against Mills’s motion to vacate Henry’s seat? That is, what motivated the members—in the sense of politics, partisanship, and personalities—to vote as they did? Likewise, what constitutional or other legal or policy rationales (if any) did the members put forward to explain their votes? A surprising number of very different views have been put forward. Second, what did Henry’s victory against purported religious intolerance mean to his contemporaries and later generations?

This Article addresses a different set of (albeit related) questions. The focus of this Article is not on what happened on December 5 and 6, 1809 and why the members of the North Carolina House of Commons voted as they did. Instead, the focus of this Article is on what happened on November 20, 1809—in other words, what legislative oath (if any) did Jacob Henry actually take? Second, how have later historians and legal commentators described and distorted our understanding of the events of November 20, 1809? And, third, why did the December 6, 1809 debate on the motion veer so far from any substantial discussion of the actual underlying events of November 20, 1809? Admittedly, this third question cannot be answered with clarity.

RELATED:  Also from Professor Tillman on Jacob Henry: 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)).


The Irrelevance of Sanchez to Textualism’s Indeterminacy
John Vlahoplus

In a recent post here, Michael Ramsey suggests that textualism can function in at least some cases as a “neutral truthmaker” generating definite answers because nine ideologically diverse Justices reached the same legal interpretation in Sanchez v. Mayorkas through examining the relevant statutory text.  But the case proves nothing of the sort.  Two lower courts reached opposite conclusions, also applying textualism.  The Velasquez court, for example, found that “the government’s argument conflicts with the INA’s text.”  Sanchez merely adds nine votes to one side of the interpretive dispute without proving that textualism is neutral or deterministic.

The recent faithless elector cases are similar.  The Tenth Circuit concluded in Baca that “the text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice.”  But the nine ideologically diverse Supreme Court Justices rejected that textual conclusion. 

The eight-Justice majority reached the opposite result:  “The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.”  Justice Thomas found no textual clarity at all.  He concluded that “[t]he Constitution does not address—expressly or by necessary implication—whether States have the power to require that Presidential electors vote for the candidates chosen by the people.”  Analytically, the Court’s decision merely added nine votes to the opposite side of the interpretive dispute.  It did not prove that textualism is neutral or determinative.

The Supreme Court has the final word because someone has to, not because the Court can prove that it has applied a neutral and deterministic method of interpretation correctly where others applied it incorrectly.


Eric Segall on the Dangers of Philosopher Judges
Michael Ramsey

Ar Dorf on Law, Eric Segall: The Law & Liberty Blog, Broken Clocks, and the Dangers of Philosopher Judges. From the introduction [edited to remove some snark I find misplaced]:

I subscribe to a website called the "Law & Liberty Blog" to keep abreast of what folks I normally disagree with are saying and what they think is important and timely. ..

...[E]very now and then an essay appears on the site that I find agreeable, persuasive, and important. So it was with a piece by Greg Weiner last Thursday titled "Why Would We Expect Philosopher Judges?" [ed.: noted here.]  Weiner's essay is a response to a truly horrifying social media famous article in "The American Mind" by four folks calling for "A Better Originalism." [ed.: here.] That article was a conservative manifesto asking judges to pay much less attention to text, history, and precedent, and focus more on [a conservative moral vision]... 


[Weiner] notes two problems with the call for a "Better Originalism." He questions the premise that all important constitutional issues are also judicial issues, and he wonders whether judges who have the power to impose their moral convictions on the rest of us will act like responsible judges. Both points are important and transcend the issues raised by the "Better Originalism" manifesto.

A representative democracy governed by a written constitution could function quite well with judges who only strike down laws that, in the words of Alexander Hamilton in Federalist No. 78, are at an "irreconcilable variance" with constitutional text, structure, or history. In fact, as I've written before, to the extent we care about how the framers viewed judicial review, they expected judges to use that power modestly, rarely, and only in those cases where the constitutional error is clear. After all, as Weiner observes, judges were once law students and lawyers, and they were trained in advocacy and textual analysis, not moral reasoning. When judges "interpret" vague texts like "equal protection" and "free exercise" with contested histories, they will, absent strong deference to more accountable political officials, inevitably use morality-based reasoning to reach what are usually controversial value judgments. Weiner sensibly asks the question why we would delegate such a task to lawyers and judges. As the early originalists like Robert Bork argued, where text and history are unclear, a judge's job should be to step aside and let the political process, assuming it is functioning properly, work.

Weiner's second point fits nicely with his first one. Judges who feel free to investigate the moral universe and veto laws based on their personal views of the good, the bad, and the ugly will almost certainly abuse their power. My book "Supreme Myths" catalogues how serious a problem this abuse of power has been throughout American history. To Weiner's credit, he doesn't want future judges embracing that moral perspective even if, as the cards now lie, they would likely see the world the way he does. 

I generally agree (apart from the snark).  I particularly agree with this sentiment (from the conclusion):  "Limiting judges to the study of text and history, and leaving moral judgments to the people who make the law, would be a much better system of justice."  My main difference with Professor Segall, reflected in various exchanges on this blog, is that(a)   I think text and history provide reasonably clear answers more often than he does, and (b) I think courts should intervene against the political branches on the basis of text and history more often than he does.

I also agree, though, that strong judicial restraint provides a possible compromise position at a time of great polarization.  Again from the conclusion: 

About 18 months ago, I wrote on this blog that a better future for the Court and our country would be one where the Justices return the issues of abortion, affirmative action, and gun control to the states. The Court has now decided that next year it will hear major abortion and gun cases, and the Harvard affirmative action litigation is right around the corner. I suspect that, as a matter of policy, Weiner and I might disagree on these three issues even if we might find common ground in the idea that judges should stay out of these divisive and society-defining questions.


Josh Hammer: Common Good Originalism
Michael Ramsey

Josh Hammer (Edmund Burke Foundation; Newsweek) has posted Common Good Originalism: Our Tradition and Our Path Forward (Harvard Journal of Law and Public Policy, Vol. 44, No. 3, 2021) (43 pages) on SSRN.  Here is the abstract:

For far too long, originalist scholarship and taxonomy has been divided between libertarian originalism, progressive originalism, and "conservative" originalism. But so-called "conservative originalism," as it has usually been historically formulated, is usually avowedly positivist and rooted in Thayerian deference or other proceduralist norms of judicial restraint.

This paper argues that this is wrong. Just as libertarian originalism and progressive originalism entail an inherent element of substance, so too can a genuinely, substantively conservative strand of originalist jurisprudence be theorized. In fact, this paper argues, such a strand of originalism is our true Anglo-American constitutional inheritance: common good originalism.

I've linked to a number of blog posts and other commentary about the emerging idea of "common good originalism."  (See here and here), It's great to have a full-length-article exposition of the idea from one of its key defenders.  Whatever one thinks of it, it's an important development.


Laurent Sacharoff: The Broken Fourth Amendment Oath [Updated]
Michael Ramsey

Laurent Sacharoff (University of Arkansas School of Law) has posted The Broken Fourth Amendment Oath (Stanford Law Review, Vol. 74, 2022) on SSRN.  Here is the abstract:

The Fourth Amendment requires warrants be supported by “oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant based entirely on the third-hand account of an informant. But this article shows that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the “oath,” by its very nature, requires a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones v. United States that a warrant could rely upon “hearsay”—radically altering criminal investigations. But Jones rested entirely on policy preferences, ignoring the text, original understanding, and the rich contrary precedent.

This article argues we should return to the original meaning that the oath requirement bans third-hand accounts. Remarkably, this is the first comprehensive study to consider whether the “oath” requires personal knowledge.

Impressive originalist scholarship -- I'm completely persuaded, and I'd never thought about this issue before.  It's an indication of how many things there are that we take for granted but are, upon investigation, incompatible with original meaning. Also, no surprise (to me, anyway) that it was a 1960 (Warren court) case that moved away from the original meaning in a way that constricted individual rights. As Justice Scalia observed many times,  nonoriginalism doesn't necessarily lead to more rights rather than fewer rights.

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


Sanchez v. Mayorkas: Are We All Textualists Now?
Michael Ramsey

The Supreme Court ruled yesterday in Sanchez v. Mayorkas that (as SCOTUSblog puts it): "An individual who entered the United States unlawfully is not eligible to become a lawful permanent resident under 8 U.S.C. § 1255 even if the United States has granted the individual temporary protected status." Justice Kagan's opinion for a unanimous Court relies principally on the text:

Section 1255 of the immigration laws provides a way for a “nonimmigrant”—a foreign national lawfully present in this country on a designated, temporary basis—to obtain an “[a]djustment of status” making him [a Lawful Permanent Resident] [LPR]. 8 U. S. C. §1255 (boldface deleted); see §1101(a)(15) (listing classes of nonimmigrants, such as students and tourists). Under that section, a nonimmigrant’s eligibility for such an adjustment to permanent status depends (with exceptions not relevant here) on an “admission” into this country. And an “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” §1101(a)(13)(A). The admission—or, to use the definitional phrase, “lawful entry”—requirement appears in two pertinent provisions of §1255. One states that a nonimmigrant may become an LPR only if he has been “inspected and admitted or paroled into the United States.” §1255(a). And another states that a nonimmigrant who has previously worked without authorization in the United States may become an LPR only if his presence here is “pursuant to a lawful admission.” §1255(k)(1); see §1255(c)(2).

As a result:

Section 1255 generally requires a lawful admission before a person can obtain LPR status. [Petitioner] Sanchez was not lawfully admitted, and his TPS [Temporary Protected Status] does not alter that fact. He therefore cannot become a permanent resident of this country. We affirm the judgment below.

It's become fashionable to argue that textualism cannot provide definite answers in contested cases.  (See this post from three days ago).  But in the Sanchez case it seems (to nine ideologically diverse Justices, anyway) to give a definite answer.  And lest one think this wasn't a contested issue, the Court granted certiorari to resolve a deep circuit split, per footnote 3:

Compare Sanchez v. Secretary U. S. Dept. of Homeland Security, 967 F. 3d 242, 245 (CA3 2020) (case below) (holding that such a person cannot do so); Nolasco v. Crockett, 978 F. 3d 955, 959 (CA5 2020) (same); Serrano v. United States Atty. Gen., 655 F. 3d 1260, 1265–1266 (CA11 2011) (per curiam) (same), with Velasquez v. Barr, 979 F. 3d 572, 578 (CA8 2020) (holding that he can); Ramirez v. Brown, 852 F. 3d 954, 958 (CA9 2017) (same); Flores v. United States Citizenship and Immigration Servs., 718 F. 3d 548, 553–554 (CA6 2013).

Again, the central claim in the article linked above is that "textualism is no more capable of providing a neutral truthmaker or of cabining the influence of evolving social values than any other leading method of statutory interpretation."  But that article focuses on Bostock v. Clayton County, an especially difficult case from a textualist perspective.  As I wrote in response: "It doesn't seem to me that the fact that textualism encounters hard cases (which no textualist denies) proves that 'textualism is no less 'living' than any other leading method of statutory interpretation.'  At most it shows that textualism is sometimes no less 'living' than any other leading method of statutory interpretation."  Sanchez in contrast suggests that textualism can provide a "neutral truthmaker" in the text that can prevail across ideological divisions (even against a sympathetic claimant, as Mr. Sanchez surely was).


Sree Sudaarshan Sreekumar: Abstractions over Text?
Michael Ramsey

Sree Sudaarshan Sreekumar (University of London - students) has posted Abstractions over Text?: Groping in Daylight in Search of the Switch (29 pages) on SSRN.  Here is the abstract:

Independence is a virtue one takes time to acquire. But the judiciary – entrusted with deciding cases and controversies – is allowed to posit no excuse for its precarious institutional posture. One of the ways judges compromise judicial independence – and in doing so shockingly adorn the veil of a legislator – is by interpreting statutes whimsically. This Article, therefore, seeks to shed light on textualism – a method of interpreting legal texts – and its principal tenet, context. This Article goes on to critique the traditional approaches to statutory interpretation – literalism, the golden rule, the mischief rule, and purposivism – on the primary basis that they are flawed and unworkable. They rob statutes of their textual meaning and strip them of their democratic sheath. It exposes literalism’s flaw – the plain-meaning inquiry and its tendency to constrict meaning. The author suggests an alternative test – the ‘linguistic reasonableness’ test. As regards the golden rule, this Article analyzes its tripartite exceptions laid down in the oft-cited Grey v Pearson. The author examines one of the exceptions – the absurdity doctrine – by conducting two analyses: the OPLA and SSA analyses. This Article then discusses the mischief rule and purposivism. In the author’s opinion, they bear a distinction without a difference. Next, the author offers nine hypotheticals with interpretive problems, resolving each as a textualist would. This Article concludes by expressing misgivings about the undisciplined and capricious posture of the judiciary in statutory interpretation, and warn against such improvidence.


Gerard Bradley: Moral Truth and Constitutional Conservatism
Michael Ramsey

Recently published, in the Louisiana Law Review:  Moral Truth and Constitutional Conservatism (81 La. L. Rev. 1317 (2021)), by Gerard V. Bradley (Notre Dame).  Here is the abstract:

Conservative constitutionalism is committed to “originalism,” that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however,  constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a mélange of mostly unsound arguments against the worst depredations of Casey’s Mystery Passage.

The reason for the methodological moral reticence is easy to see. It came into being as an understandable strategy to halt the Warren Court’s judicial activism. The conservative diagnosis was simple, and largely correct: judicial philosophizing not called for by the constitutional text or by a sound interpretation of it lay at the root of these judicial excesses. The treatment that conservatives prescribed hit the mark they sighted. Where resort to moral reasoning seemed inescapable, conservatives turned to some species of conventional moral belief, usually to what some group thinks, or once thought. Conservative constitutionalists have been committed to an “objectivity” wherein facts about what some believe to be morally sound folded into a regimen of restricted legal reasoning from text, history, structure, and precedent.

This conservative constitutionalism is well-suited to damage control whenever legal elites are in thrall to unsound moral and political philosophies. Conservative constitutionalism can even stymie for a time the introduction of new mistaken premises. But now, more than 50 years into the revolution, contemporary constitutional conservatism is incapable of wresting control of the law back from the regime-changing project of autonomous self-definition. We have passed a tipping point where damage control amounts to no more than a slow-walking surrender.

Conservative constitutionalists need only choose originalism, which will lead them to recognize the necessity for strategic resort to critically justified metaphysical and moral truths, as the Constitution directs. In fact, the contemporary judge can be faithful to the Founders only by sometimes relying on moral and metaphysical truths that lie beyond the Constitution. These truths include, crucially, answers to such foundational questions as: When do persons begin? What is religion? Which propositions about divine matters are answerable by use of unaided human reason? What is the meaning of that “marriage” that Supreme Court cases for over a century have spoken of, when it declares that everyone has a “fundamental right to marry”?

The truth about constitutional law is that, sometimes, the problem with an errant Supreme Court opinion is not that it relies on philosophy, but that it relies upon bad philosophy. Then the conscientious judge is obliged to replace bad philosophy with good philosophy. And the linchpin of that good philosophy is the “liberty,” not of self-creation ex nihilo, but of selfconstitution in a morally ordered universe.


Cary Franklin: Living Textualism
Michael Ramsey

Cary Franklin (University of Texas at Austin - School of Law) has posted Living Textualism (Supreme Court Review, forthcoming 2021) (61 pages) on SSRN.  Here is the abstract:

The Court’s landmark decision in Bostock v. Clayton County, holding that Title VII’s prohibition on sex discrimination prohibits discrimination on the basis of sexual orientation and gender identity, was widely hailed as a triumph for textualism and a vindication of its neutrality and objectivity. Textualism has typically been associated with conservative judges; critics have argued that, at bottom, it’s a vehicle for implementing conservative policy preferences. Proponents of textualism have argued that Bostock refutes such criticisms: it demonstrates that enforcing a text’s “original public meaning” can yield progressive or conservative results, depending on what the text says.

It is true that textualism can yield progressive or conservative results. Bostock demonstrates as much—but not, this Article argues, for the reasons textualism’s proponents suggest. Bostock does not demonstrate that textualism is neutral or objective, or that it enables judges to put aside contemporary social values. What Bostock demonstrates is that textualism is no more capable of providing a neutral truthmaker or of cabining the influence of evolving social values than any other leading method of statutory interpretation. The Justices in Bostock all claim to have recovered Title VII’s original public meaning using neutral methods and tools such as dictionaries and corpus linguistics. But Bostock shows that original public meaning is not something judges find, but something they produce—and something they need to produce because, in the kind of conflicts that reach the Court, there generally is not a single truth of the matter from a semantic standpoint. The title Living Textualism is meant to capture this creative process, and to suggest that textualism is no less “living” than any other leading method of statutory interpretation. Indeed, this Article shows that textualism is a form of dynamic statutory interpretation—one that proceeds by making and remaking the original public meaning of contested legal texts over time.

This Article argues that original public meaning is made primarily at shadow decision points: generally unacknowledged, often outcome-determinative choices about how to interpret legal texts that are framed as methodological, but that are typically fueled by substantive extratextual concerns. Examples of shadow decision points include: which bits of text to subject to textualist analysis; whether to consult a dictionary or a corpus linguistics database or both; which definition of the disputed text to select; how literally to take that definition; whether to deem the text ambiguous, and what quantum of ambiguity is sufficient to permit the consultation of some wider unspecified set of extratextual sources; and how heavily to weigh original expected applications in determining original public meaning. This Article examines how the Justices in Bostock construct Title VII’s original public meaning at these shadow decision points. In so doing, it reveals the serious democratic accountability and rule-of-law problems that follow from the textualist focus on original public meaning. Critics often accuse textualists and originalists, who privilege original public meaning, of granting too much authority to the dead hand of the past. This Article argues that the more significant problem is not that of the dead hand, but of the Court exerting its own will, making its own inevitably value-laden choices, falsely claiming its hands were tied.

It doesn't seem to me that the fact that textualism encounters hard cases (which no textualist denies) proves that "textualism is no less 'living' than any other leading method of statutory interpretation."  At most it shows that textualism is sometimes no less 'living' than any other leading method of statutory interpretation.

I agree, though, that the choice of methodology within textualism/originalism can be outcome-determinative (as Bostock illustrates), and that the choice can be manipulated by willful interpreters.  Thus interpreters need to develop pre-commitments to particular textualist/originalist methodologies, not just to the general labels.


Greg Weiner on "A Better Originalism"
Michael Ramsey

At Law & Liberty, Greg Weiner (Assumption University -- Political Science):  Why Would We Expect Philosopher-Judges? From the introduction: 

The manifesto for “A Better Originalism” grounded in transcendent moral truths and a teleological conception of the regime has been ably critiqued and ably defended in this space. But these critiques have pertained largely to the question of judicial authority. The question of power—its nature, its tendency to growth, and how people who wield it tend to behave—requires attention as well.

One hesitates to accuse the authors of “A Better Originalism” of error, but they must contend with at least the possibility of two. One is the latent premise that constitutional issues are, by definition, judicial issues. That is, the authors seek a different kind of constitutional interpretation, and they direct their missive to judges. Why not to legislators? Or to citizens? More on this presently.

The second error is the assumption that the kind of judge they seek is a) available in considerable numbers and b) likely to remain that kind of judge when invested with power—especially power of the kind the authors describe. Yet somehow “A Better Originalism” illustrates the possibility for a different kind of judge by noting the persistence of the wrong kind of judge. One is Justice Neil Gorsuch, whose decision in the Bostock case they take as proof that conservative jurisprudence has gone off the rails. Might the persistence of bad judges, or judging, call into doubt the thesis that we should rely on judges in the first place?

Judges should judge well, but they are not suited to be moral guardians of the regime. American law school curricula do not prepare future judges to ascertain the moral truths beneath the law. They train them to practice law. If there was ever a judge who broke this mold and held out hope for the kind of jurisprudence “A Better Originalism” seeks, surely it was Gorsuch, who studied natural law with John Finnis.

But the problem runs deeper than judges who are unsuited to the task “A Better Originalism” would assign them. Judges so tasked would be powerful. And one moral truth that transcends and undergirds the American regime is that, as Federalist 48 explains, “power is of an encroaching nature.” Put otherwise: If a man or woman is anointed to identify the moral ends of the regime and to issue rulings imposing them, how might we expect such a person to behave? With humility and restraint? Or with arrogance and error?

One might say that conventional originalism is subject, at least in part, to this critique as well -- in particular, whether "the kind of judge [originalists] seek is a) available in considerable numbers and b) likely to remain that kind of judge when invested with power."


Joel Alicea: Liberalism and Disagreement in American Constitutional Theory [Updated]
Michael Ramsey

J. Joel Alicea (Catholic University of America — Columbus School of Law) has posted Liberalism and Disagreement in American Constitutional Theory (Virginia Law Review, Vol. 107, forthcoming Dec. 2021) (61 pages) on SSRN.  Here is the abstract:

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused around the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate about two propositions that are central to the liberal tradition: individualism and rationalism. Viewed in this way, constitutional theorists often thought to be opposed to each other are, in fact, allies in the debate over liberalism, even if they disagree about whether their shared theoretical premises imply an originalist or non-originalist methodology. Conversely, theorists often seen as allies profoundly disagree about the premises of their constitutional theories because they disagree about liberalism. Reorienting American constitutional theory to focus on the disagreement over liberalism will help us identify which constitutional theory is best and better understand the outcomes in important constitutional cases.

Congratulations to Professor Alicea on joining the Catholic U. faculty, and I think we'll be hearing a lot from him in the future.

Update:  At Legal Theory Blog, Larry Solum says "Highly Recommended."


Can Congress Eliminate the District of Columbia?
Andrew Hyman

Professor Bryan Wildenthal suggests that Congress should grant statehood to the District of Columbia, but make its core into “an ordinary federal enclave within the new state, like the thousands of federal buildings and areas already located in all 50 states.”  That way, he says, there would not be a tiny federal district entitled to three electoral votes.  But, I don’t think that would work.

Section 1 of the 23rd Amendment (ratified in 1961) is phrased almost entirely in mandatory rather than optional terms:

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

If there were no such District, then fulfilling those commands would become impossible, which strongly implies that zapping the District would not be necessary, proper, or appropriate.  

I do agree with Professor Wildenthal that Congress cannot simply void the 23rd Amendment by repealing its implementing legislation.  Section 1 of the 23rd Amendment would probably be self-executing to some extent without congressional implementing legislation.  If not, then congressional repeal of implementing legislation would undermine the mandatory language of that Amendment, and such repeal would therefore not be necessary, proper, and appropriate.

But suppose it were lawful to convert the core of the District of Columbia into an ordinary federal enclave.  That enclave would still be the “seat of government” subject to the 23rd Amendment.  After all, when Congress in 1790 authorized the present seat of government, it said that “the seat of the government of the United States shall by virtue of this Act be transferred to the district and place aforesaid....” (emphasis added).  So, the federal seat of government already existed before the District of Columbia, and it would continue to exist after the District of Columbia, even though the latter district might have a different name, different boundaries, and a different constitutional basis.

In contrast to Professor Wildenthal’s proposal, no one doubts that Congress could easily retrocede almost all of the District of Columbia back to Maryland.  Because a rump remaining area would have three electoral votes, the retrocession would almost certainly create sufficient political pressure to simply repeal the 23rd Amendment.  But maybe residents of the District would prefer that their land not be retroceded, because the status quo gives them tremendous per capita voting power in presidential elections.

Instead of retroceding that land, Congress could create a new state, with the consent of Maryland which expressly gave the land for the purpose of a permanent federal seat of government (“pursuant to the tenor and effect of the eighth section of the first article of the constitution of the government of the United States....”).  But then members of Congress would have to explain to lots of other cities why they cannot become states too; Washington D.C. is currently the 20th most populous city in the United States, and the 10th largest geographically.

MICHAEL RAMSEY adds: There seem to be a lot of complications here, but I'm not sure why the issue doesn't resolve to a fairly simple set of propositions: (a) To the extent Congress doesn't want the ceded land for a Federal District any more, it can retrocede the land back to Maryland; (b) then (but only then) it can make the land a state, with Maryland's consent,  as it could with any part of any state; (c) to the extent Congress retains any part of the land (even a small part) as a Federal District, that part gets three electoral votes per the 23rd Amendment (which might be "stupid but constitutional"); and (d) if Congress retrocedes all of the land, the 23rd Amendment becomes inoperative because there's no longer any "District constituting the seat of Government of the United States" (as the seat of Government would at that point be not in a "District" but in Maryland or in a new state}.

ANDREW HYMAN REPLIES: Without commenting on points a, b, and c, here’s point d: “if Congress retrocedes all of the land, the 23rd Amendment becomes inoperative because there's no longer any ‘District constituting the seat of Government of the United States’ (as the seat of Government would at that point be not in a ‘District’ but in Maryland or in a new state).“  That may be correct if Congress decides to allow the state full jurisdiction within the federal buildings, but that’s not what Bryan Wildenthal is suggesting (or what Congress would likely demand); he’s saying the federal buildings would together form a federal enclave, and to me that looks exactly like the district that formed the “seat of government” prior to transferring it all to the new capital at Washington D.C.


I think Michael Ramsey’s analysis is correct as far as it goes, but it could be taken farther in an interesting way.  If the U.S. were to retain a new, miniature “federal district” that included only major governmental buildings and the grounds connecting them, Congress could pass a law that no person shall be deemed or permitted to be a resident or inhabitant of that new federal district (which would probably be true as a matter of fact anyway).  This law would have important consequences. 

First, I think it is clear that, with no residents, under the 23rd Amendment the new district could have no more than 2 electors, because a State with zero population would be entitled to no representatives in the House.  The 23rd says that the number of the District’s electors “shall in no event [be] more than the least populous State[.]”  So, consistent with the amendment, that number may be less.

Secondly (and this is less clear although I think, on balance, it is correct), the rest of the 23rd Amendment—that is, the part that would grant 2 electors to mirror the 2 Senators from each State—would, without any legal residents in the miniaturized new district, fall into desuetude.  The 23rd Amendment says: “The District constituting the seat of Government … shall appoint in such manner as Congress may direct” presidential/vice-presidential electors.  What Congress has directed is that the government of D.C., which is elected by the legal residents of D.C., shall conduct an election every 4 years for presidential/vice-presidential electors, in which election legal residents of D.C. shall be entitled to vote.  But, if there are no legal residents of the new district, there will be no elected government of that district and there will be no legal residents to vote for presidential/vice-presidential electors from the new district.

This would not be the first time that, due to subsequent events and/or the passage of time, a constitutional provision has fallen into desuetude.  See: 14th Amendment, Sec. 4; Article VI, Cl. 1; Article I, Sec. 9, Cl 1 (the expiration in 1808 of the bar against congressional prohibition of the African slave trade). 


Randy Kozel: Stare Decisis as Authority and Aspiration
Michael Ramsey

Randy J. Kozel (Notre Dame Law School) has posted Stare Decisis as Authority and Aspiration (Notre Dame Law Review, Vol. 96, No. 5, 2021) (36 pages) on SSRN.  Here is the abstract:

The doctrine of stare decisis remains a defining feature of American law despite challenges to its legitimacy and efficacy. Even so, there is space between the role that stare decisis currently plays and the potential that it offers. The gap is evident in the jurisprudence of the U.S. Supreme Court. Though the Justices continue to underscore the fundamental status of stare decisis, the Court’s opinions sometimes seem quick to depart from precedents whose reasoning has fallen out of favor.

Using Bivens v. Six Unknown Named Agents as a case study, this Article explains how the Court can invigorate the doctrine of stare decisis in pursuit of a stable and impersonal rule of law. Viewed against the backdrop of modern interpretive philosophy, Bivens might well be anachronistic. Yet by committing themselves to precedents of precisely that sort, the Justices can demonstrate that changes in judicial personnel—and attendant shifts in the prevailing winds of legal theory—do not always translate into changes in the law.

Even so, there is always going to be the question of how broadly or narrowly to read a precedent.  Bivens is illustrative. Should it be read narrowly (as a majority of the Court appears to think) because its reasoning was in tension with originalism, formalism and separation of powers, or should it be read fairly generously (as I tend to think) because despite its questionable reasoning it's a reasonable substitute for the Constitution's original legal background?  Or, even if one thinks it's not a reasonable substitute for the Constitution's original legal background, should it nonetheless be read broadly as part of a commitment to stare decisis?  I'm doubtful that simply the idea of "committing [oneself] to precedents" can answer these questions.


Evan Bernick: Policing as Unequal Protection
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Policing as Unequal Protection (86 pages) on SSRN.  Here is the abstract:

This Article proposes a constitutional framework for resistance to police violence that is informed by the history of the Fourteenth Amendment and of policing, as well as the vision of a radical social movement: the Movement for Black Lives (“M4BL”).

Central to the Article’s analysis is the concept of policing. “Police” usually calls to mind either (a) individual law-enforcement officials; or (b) the institutional body of which those officials are a part. But the term originally referred to a mode of governance — one that was hierarchical, discretionary, and largely unaccountable to the law. It will be argued that the institutional police in the United States have engaged in policing-as-governance since the Founding; that the design of the Equal Protection Clause of the Fourteenth Amendment was informed by the policing of Black Americans before and after the Civil War; and that the Clause was designed to prevent subjugation — the forcible control of some people by unaccountable others — of a kind that is inherent to policing, though not to law enforcement.

The Article then uses the frame of anti-subjugation to analyze particular proposals that have been advanced and modes of resistance to police violence that have been used by M4BL activists and allied scholars. These include “cop-watching,” community bail funds, the contestation of police budgets, the BREATHE Act, disparate-impact-based regulation of policing, and legal challenges to Fourth Amendment and Equal Protection doctrines that have enabled police violence. Finally, the Article argues that critical engagement with the strengths and weaknesses of the historical Equal Protection Clause could not only help reduce the harms of oppressive systems in the present but be generative of ideas about future constitution-building.

Addressing Three New Points About Bostock and Oncale
Andrew Hyman

David Weisberg takes the position that the Civil Rights Act of 1964 bans discrimination against men or women based on sex even if there is no prejudice or bias against either sex.  He makes three points in response to my recent post about Bostock v. Clayton County and Oncale vSundowner Offshore Services.  I'd like to reply to each of them.

First: Mr. Weisberg says that some of what I wrote was legally irrelevant, and he is correct about that.  I wrote, “Apparently, Oncale was not actually gay.  It’s unclear from the Court’s opinion what the sexual preferences of his harassers were….”  All of that was legally irrelevant, but it’s still good to avoid creating misimpressions about Oncale, and about his co-workers, and that’s all I was trying to do there.  I also said that it’s “unclear how Oncale would have been treated if he had been a female suspected by those co-workers of being homosexual.”  Mr. Weisberg asks: “How would a court even begin to decide how Mr. Oncale would have been treated if he had been a female suspected by co-workers of being a lesbian?”  Well, juries determine intent all the time.  The Court said in Oncale, “A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”  If it’s not a mixed-sex workplace, then the plaintiff might offer other kinds of evidence, such as whether the words spoken by the harassers were gender-specific, or instead were generically homophobic. Perhaps a plaintiff could also prove that the harassers were driven by their own homosexual proclivities (of the Deliverance variety), suggesting that women would have been safe.

Second: Mr. Weisberg also brings up the statute’s application to religious attire instead of sex, and I would simply say that there are only two sexes (within the original meaning of the statute) whereas a single religion can include multiple informal sects, some of which may differ from each other only as to attire, and the statute has been reasonably interpreted as banning job discrimination against each one of those sects.  Sex and sects are therefore not easily compared.

Third: I again agree that Oncale was entirely correctly decided.  But the cases are quite different, assuming that, in Oncale, there was gender prejudice or bias against Oncale, while in Bostock there was no gender prejudice or bias against Bostock.  For what it's worth, this is simply an issue of the original meaning of the Civil Rights Act of 1964, and I am not expressing any opinion at all about whether that federal law should be, or should have been, broadened.


Putting aside issues Andrew Hyman now concedes are irrelevant, I’ll focus first on his take on precedents regarding religious symbols and garb. He thinks those precedents are inapposite because, while there are only two sexes, there are many religions and sects, and “some may differ from each other only as to attire[.]”  This is, once again, irrelevant, which can be shown by re-working Justice Alito’s demonstration that an employer could reject all homosexual job applicants without ever learning their sex.  (Alito Bostock slip op. 9.)  An employer could, before setting eyes on any applicant, ask: “Do you ordinarily wear any religious symbol or garb visible to others?  If your answer is ‘yes’, would you insist on wearing that symbol or garb despite our rule prohibiting employees from wearing such in our workplace?”  If the second answer is also ‘yes’, the applicant is rejected.  The employer doesn’t know the individual’s particular religion, yet every rejection (possibly excepting employers that are religious institutions) violates Title VII.  This result implies that, if a characteristic (e.g., wearing a religious symbol or garb) is not among the protected characteristics listed in the statute, but is nevertheless sufficiently closely related to one that is listed (“religion”), it will be protected under the statute.

Mr. Hyman says that there was no “gender prejudice” or “bias” against the Title VII complainants in Bostock.  Those words are not in the statute.  Also not in the statute are words to this effect: "Homosexual employees are entitled to terms or conditions of employment that include a workplace free of sexual harassment, but are not entitled to any other statutory protections."  Oncale holds that homosexual employees are indeed entitled to a workplace free of sexual harassment.  This implies that homosexual behavior (just like wearing a religious symbol or garb) is sufficiently closely related to a protected characteristic—“sex” (“religion”)—to be itself protected under the statute. 

The position taken by Mr. Hyman and the Bostock dissenters is that Title VII requires an employer to provide homosexual employees with a workplace free of sexual harassment, but Title VII nevertheless permits that very same employer to refuse to hire homosexuals, to pay less to homosexual employees, and also to fire homosexual employees because they’re homosexual.  I think that result is inconsistent with Oncale and with well-established precedents regarding religious symbols and garb.


Bryan Wildenthal on D.C. Statehood
Michael Ramsey

At Jurist, Bryan Wildenthal (Thomas Jefferson, visiting USD): D.C. Statehood Is Within Congress’s Power But Must Be Done Right.  From the introduction:

Critics of the D.C. Statehood Bill, which passed the House on April 22, rightly object that it cannot properly override the 23rd Amendment to the Constitution. The House Bill creates utterly unnecessary problems under the Amendment by proposing a greatly reduced “District”, encompassing the White House, the Capitol and Supreme Court buildings, and the National Mall.

That Amendment mandates that “[t]he District constituting the seat of government of the United States,” however small it may be, is constitutionally entitled to choose three presidential electors, albeit “in such manner as the Congress may direct.”

Washington, D.C., if granted statehood, would no longer be that “District” and would be entitled to its own electors simply as a state, under Article II of the Constitution. It would be absurd for any remaining “District,” with no residents other than the presidential family and perhaps a few homeless persons, to continue getting another three presidential electors.

The current Statehood Bill purports to nullify the 23rd Amendment by repealing the legislation governing the “manner” of its implementation. But that’s a disturbing end-run around a constitutional guarantee of voting rights and would surely be struck down (as it should be) by the current Republican-dominated Supreme Court. It is absolutely the last thing Democrats (of all people) should support, given nationwide on-going attacks by many Republicans on voting rights and election integrity. Democrats may hope to motivate repeal of the 23rd Amendment itself, but Republicans will obviously never agree to that, and it’s impossible to amend the Constitution without overwhelming bipartisan support.

The Biden Administration reportedly supports amending the Statehood Bill to award the rump district’s extra three electors to whoever wins the national popular presidential vote. That’s clever political mischief at best, a misguided “fix” that would create more problems, would still disrespect the Constitution, and would again be pointless strike-down bait for the Supreme Court. If the electors are chosen by voters nationally, they would not be chosen by the district itself, as the 23rd Amendment commands. The universal understanding when the Amendment was ratified in 1961 was that the District’s presidential electors would be chosen by the voters living there (mostly long-disenfranchised African Americans), as they have been in every election since.

The actual solution to the D.C. statehood problem is elegantly simple, staring us all in the face: Why have any “District” at all? Just make the proposed rump district an ordinary federal enclave within the new state, like the thousands of federal buildings and areas already located in all 50 states. . . . 


Andrew Kent: Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation against Federal Officers
Michael Ramsey

Andrew Kent (Fordham University School of Law) has posted Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation against Federal Officers (96 Notre Dame Law Review 1755 (2021)) (34 pages) on SSRN.  Here is the abstract:

This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially-created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to [be] the institution which should weigh the costs and benefits of allowing constitutional tort suits against federal officers for damages, especially in areas like national security or foreign affairs in which the political branches might be thought to have constitutional primacy. Scholarly writing and litigation briefs critical of the Court’s treatment of Bivens now frequently focus on damages suits under common law or general law against American government officers in the early republic, reading them as giving Bivens a quasi-originalist pedigree. This historical writing about officer damages suits claims that courts in the early republic: acted independently of Congress to impose significant restraints on federal officers; protected persons from federal overreach no matter their citizenship and territorial location, and even during wartime; and refused to grant anything like qualified immunity that might have softened the blow of strict personal liability and promoted government efficiency. Common law damages suits against federal officers are said to have remained routinely available until after Bivens was decided when, in the 1988 Westfall Act, Congress barred state-law tort suits against federal officers acting within the scope of their employment.

Through case studies of litigation against federal officers involved in customs enforcement and maritime seizures, this Essay qualifies and revises these claims. In those two contexts, I show that there was substantial political branch endorsement of personal damages liability of federal officers in the early republic, but as material and legal conditions changed over the nineteenth century, Congress moved away from officer suits as a means of ensuring accountability of federal officers and compensation of persons harmed by official illegality. Further, in high stakes contexts for the young republic—wartime prize seizures and peacetime anti-piracy seizures—the Supreme Court did in fact apply immunity doctrines to protect officers and incentivize vigor. Finally, alien enemy disability to sue in U.S. courts during wartime must be acknowledged as a significant limit the protective reach of the officer damages suit. I conclude with thoughts about the implications of this somewhat revised view of the history of damages litigation against federal officers.


John McGinnis on the Three-Fifths Clause
Michael Ramsey

At Law & Liberty, John McGinnis: What Did the Three-Fifths Clause Really Mean? From the introduction:

The Constitution’s Three-Fifths Compromise, which counted three-fifths of a state’s slave population for purposes of taxation and the apportionment of representatives and presidential electors, was repealed by the Reconstruction Amendments over 160 years ago. Yet it still stirs strong political passions that are unfortunately not matched by knowledge of its genesis, content, or effects.

A few weeks ago, Justin Lafferty, a member of the Tennessee House of Representative, stated that the three-fifths compromise was part of an abolitionist movement to end slavery. Other commentators have denounced the compromise, arguing instead that it was wrong because it denigrated slaves as three-fifths of a person. Both perspectives illustrate the distortions that inevitably occur when history becomes a casualty of our culture wars.

The three-fifths compromise reveals the intricacies of history and the care necessary when critiquing the actions of our forebears. Correctly understood, it reveals that historical events are themselves dependent on their own past and have unforeseen future consequences. And it also shows the importance of considering history counterfactually: there is indeed an argument that the three-fifths compromise ultimately helped end slavery, even if had nothing to do with the abolition movement, because the compromise was necessary to the creation of the union. History can ask normative questions, but only if it is not turned into a simple-minded morality play, where it is assumed that even the best of actors of the past acted only under our current constraints.

And from the conclusion:

Rep. Lafferty’s remarks came in an attack on critical race theory. Supporters of that theory seized on his error to suggest that they showed why critical race theory is needed. But the incident shows nothing of the kind. First, his critics often got their understanding of the three-fifths compromise wrong, not recognizing that fully counting the slaves would have been worse for the cause of ending slavery. Second, while Lafferty was not correct in connecting the clause with abolitionism, the three-fifths compromise was likely one of the compromises needed to create the union, which likely ended slavery faster than the plausible alternatives. Critical race theory, which sees American history as a simple tale of racial subordination, would suppress such analysis. Third, even the three-fifths compromise is far more complex in its effects than can be captured through the prism of race. Critical race theory, like Marxist theories of history, is terribly reductionist. Party lines in history always lead to a flattening of a past’s many dimensions.

Rejecting history as a species of agitprop does not mean we must suspend all moral judgments. Evaluating the historic events of our nation is necessary for the continuity of a community like ours, which depends upon a relation to a shared past. But these judgments also depend on an imaginative sympathy with our forebears and an ability to project ourselves into a world shaped by concepts and confusions not our own. If the history of America becomes a way to project our current polarities on the past, it will become a mirror of our present discontents and a source of disunion.


A Response to Andrew Hyman re Bostock v. Clayton County
David Weisberg

I would make three points in response to Andrew Hyman’s comment on my recent post re Bostock vClayton County.

First: Mr. Hyman says that the Court’s opinion in Oncale vSundowner Offshore Services leaves it “unclear” as to “what the sexual preferences of [Mr. Oncale’s] harassers were, and it’s also unclear how Oncale would have been treated if he had been a female suspected by those co-workers of being homosexual.”  (How would a court even begin to decide how Mr. Oncale would have been treated if he had been a female suspected by co-workers of being a lesbian?)  Oncale is unclear on these points because they’re all irrelevant to the Court’s decision.  Oncale holds that an employer is required, under Title VII, to provide a workplace free of sexual harassment, whatever the sex or sexual orientation of the victimized employee or the harassing employees.  The issues cited by Mr. Hyman are irrelevant in cases of workplace sexual harassment.

Secondly: Mr. Hyman relies on an argument that Justice Alito makes in his Bostock dissent.  (Alito slip op. 17.)  The argument, in Mr. Hyman’s words, is this: “[I]f an employer has four employees, two males and two females, including one homosexual person of each gender, and the employer only fires the latter two, then obviously that does not indicate any bias or prejudice whatsoever against one sex or the other.”  There are two problems with this argument.

One problem is that the conclusion can’t be reconciled with the conclusion, per the Court’s unanimous decision in Oncale, that if that very same employer permits those very same two homosexual employees to be sexually harassed in the workplace, the result would be two Title VII violations, whether or not the employer has “any bias or prejudice whatsoever against one sex or the other.”  In cases of workplace sexual harassment, the employer’s bias or prejudice (or absence of bias or prejudice) towards a particular sex is entirely irrelevant.  The only relevant factors are (i) how the targeted employee is treated by other employees in the workplace, and (ii) what steps the employer takes to end the harassment.

The other problem with the argument advanced by Justice Alito and Mr. Hyman is that it requires jettisoning well-established precedent relating to discrimination because of an individual’s religion.  Suppose an employer has a hundred employees, fifty Jews and fifty Christians; exactly one of the Jews wears a star of David, and exactly one of the Christians wears a cross.  The employer, who dislikes religious symbols in the workplace, fires the Jew who wears the star of David and the Christian who wears the cross.  Accepting the logic of Justice Alito and Mr. Hyman, the employer’s action does not indicate any bias or prejudice against Christians or Jews.  And they are correct—the employer’s action indicates only a dislike for religious symbols in the workplace.  But the EEOC cites numerous cases where exactly such behavior was deemed to violate Title VII. 

The only conclusion to be drawn is that absence of employer bias or prejudice against Christians or Jews does not guarantee compliance with Title VII.  Where a particular characteristic (wearing a star of David or a cross) is sufficiently closely related to religion, discriminating against those who wear the symbol amounts to discrimination because of the individuals’ religion.  In the same way, where a particular characteristic (having sexual relations with persons of one’s own sex) is sufficiently closely related to sex, discriminating against those who have homosexual relations amounts to discrimination because of the individuals’ sex.  

Thirdly: Nothing in Mr. Hyman’s comment, or in the article by Professors Barnett and Blackman that he cites, or in the two Bostock dissents, offers a plausible reading of Title VII that would provide employees who are or are believed to be homosexual with only some, but not all, of the statute’s protections.  I submit there is no such plausible reading.  More generally, there is no plausible reading of Title VII that would provide any individual who is being discriminated against because of any relevant characteristic—race, color, religion, sex, or national origin—protection against some prohibited forms of discrimination, but not against all prohibited forms of discrimination.  If employees of either sex (including male employees who are or are believed to be homosexual) are entitled under Title VII to a workplace free of sexual harassment, they are equally entitled to all other statutory protections.  Therefore, if Oncale is correct, the result in Bostock is correct (despite the numerous flaws in the latter opinion).        

Harry Litman on Originalism and Expected Applications
Michael Ramsey

In The Atlantic, Harry Litman: Originalism, Divided.  From the introduction: 

Originalism—the idea that the meaning of each provision of the United States Constitution becomes fixed at the time of its enactment—in its contemporary form traces back to the advocacy of a few conservative judges, most prominently Antonin Scalia, in the mid-1980s. At the time, it was a rebel yell. The few self-styled originalists were railing against a long line of judicial precedents, particularly a set of Warren Court rulings that they viewed as mere expressions of liberal policy preferences.

Originalism is now well established, and most of the justices on today’s Supreme Court would express some fidelity to the basic concept. Even Justice Elena Kagan, one of the Court’s more liberal members, said at her confirmation hearing that “we are all originalists” these days. But the concept’s prominence has not provided the clarity some of its early proponents had hoped it would. In fact, fully conceived, originalism does not foreclose but requires the possibility that the provisions of the Constitution are best interpreted to produce “progressive” outcomes.

How is this? Superficially, originalism seems to call for the application of a term’s meaning, frozen from the time of enactment, to a present-day quandary. But this formulation requires an understanding of what, exactly, that meaning is. What is the original meaning of, say, cruel and unusual? Is it the principle those words captured at the time of their adoption, or is it the set of practices that the historical adopters would have considered to be cruel and unusual?

It is not at all clear that the conservative members of the Court today have taken stock of this elementary distinction between what we can call meaning and applications. Very likely, they, and other proud, card-carrying originalists, would reject it out of hand. They would see in the meaning-application distinction the smuggling in of a “living Constitution” that they have strived to bury.

But there is no getting around it, and the constitutional cases that will come before the Court in the next few terms are likely to tease it out.

A forceful and scholarly essay, but it depends heavily on the proposition that the result in Brown v. Board of Education cannot be defended other than by an evolving understanding of "equal protection":

Not only did the legislators who enacted the Fourteenth Amendment not expect that it would mandate desegregated public schools, but neither did society at large—Scalia’s “normal speakers of English.” There is no particular reason to believe that mid-19th-century elected representatives’ views of what equality required were distinct from the public’s. So the disavowal of the framers’ subjective expectations can’t itself anchor an originalist defense of Brown. For that, as the UCLA professor Mark Greenberg and I have argued, you need a distinction between the semantic meaning of provisions—roughly their dictionary definition—and the ways that a speaker or a society applies them. Otherwise put, between original meaning and original applications. The Fourteenth Amendment requires equal protection of the laws. For legislators—and citizens and judges—in 1865 [ed.: 1868], that principle didn’t mandate integrated schools; for Americans in 1965, it did.

I'm not sure that's right (though I'm not enough of a Fourteenth Amendment scholar to say it's wrong).  Still, it seems that the idea that segregation violated the Amendment's guarantees was at least part of the intellectual debate at the time.  Plessy v. Ferguson was not obviously right as a matter of original meaning.  Indeed, I'm inclined to think it was wrong.  And if it was, I'm not sure what's left of this essay.

More generally, there seem to be two narratives about the Amendment's ratification and aftermath.  One (reflected in this essay) is that no one thought the Amendment barred segregation, so originalism's effort to attack Plessy and defend Brown is doomed.  But another is that the post-1868 Supreme Court -- like Northern white society as a whole -- in the face of overwhelming Southern resistance turned its back on the true meaning of the Amendment, and failed to carry through on the Amendment's promises.  I'm not sure which of these is right, but they can't both be.

(Thanks to Andrew Hyman for the pointer.)


Regarding Plessy, it seems to me that Louisiana's Separate Car Act of 1890 violated federal statutory language, e.g. guaranteeing (in the Civil Rights Act of 1866 that was still on the books in the 1890s) that black people “shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” If a black person is penalized for sitting in a certain train car, but a white person isn’t, then it’s kind of hard (probably impossible) to reconcile that racist state law with the federal statute.


New Book: "The Decline of Natural Law" by Stuart Banner
Michael Ramsey

Recently published, by Stuart Banner (UCLA): The Decline of Natural Law - How American Lawyers Once Used Natural Law and Why They Stopped (Oxford University Press 2021).  Here is the book description from the publisher:

An account of a fundamental change in American legal thought, from a conception of law as something found in nature to one in which law is entirely a human creation.

Before the late 19th century, natural law played an important role in the American legal system. Lawyers routinely used it in their arguments and judges often relied upon it in their opinions. Today, by contrast, natural law plays virtually no role in the legal system. When natural law was part of a lawyer's toolkit, lawyers thought of judges as finders of the law, but when natural law dropped out of the legal system, lawyers began thinking of judges as makers of the law instead.

In The Decline of Natural Law, the eminent legal historian Stuart Banner explores the causes and consequences of this change. To do this, Banner discusses the ways in which lawyers used natural law and why the concept seemed reasonable to them. He further examines several long-term trends in legal thought that weakened the position of natural law, including the use of written constitutions, the gradual separation of the spheres of law and religion, the rapid growth of legal publishing, and the position of natural law in some of the 19th century's most contested legal issues. And finally, he describes both the profession's rejection of natural law in the late 19th and early 20th centuries and the ways in which the legal system responded to the absence of natural law.

The first book to explain how natural law once worked in the American legal system, The Decline of Natural Law offers a unique look into how and why this major shift in legal thought happened, and focuses, in particular, on the shift from the idea that law is something we find to something we make.

Via Dan Ernst at Legal History Blog.


Evan Bernick: Eliminating Constitutional Law
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Eliminating Constitutional Law (33 pages) on SSRN.  Here is the abstract:

A growing number of constitutional scholars are resting arguments for interpretive methodologies on claims about the nature of law. The most prominent and influential of these arguments is a positivist argument for originalism; other arguments draw upon the natural-law tradition. These scholars have clarified their positions but haven't abandoned them.

This Essay contends that they should. Methodological prescriptions to constitutional decisionmakers stand in need of moral justification, and theories of what law-as-such or “constitutional law” are don't fit the bill. Legality doesn't carry moral weight, regardless of whether positivism or nonpositivism is true. Accordingly, analytical economy and clarity counsel in favor of eliminativism—the view that we can and should do without the concept of law—in important domains of normative constitutional theory and constitutional practice.

What’s the alternative? All things morally relevant—including moral goods associated with law—should be weighed together in making methodological choice. “It’s the law” can't underwrite originalism or common-law constitutionalism or Dworkinism or anything else. Theories of law may, however, be useful in identifying the moral goods that should factor into interpretive choice, as well as in guiding “retail” constitutional decisionmaking in individual cases.

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


Guha Krishnamurthi: The Failure of the Newest Originalism
Michael Ramsey

Recently published, in the BYU Law Review: Guha Krishnamurthi (South Texas), False Positivism: The Failure of the Newest Originalism (46 BYU L. Rev. 401 (2021)). Here is the abstract: 

Originalism is a juggernaut. It pervades our constitutional discourse, and it has become a fort and font of constitutional legitimacy. A number of our most prominent jurists and legal thinkers are self-described originalists and, in myriad constitutional cases, originalist argumentation demands our serious attention. Notwithstanding, originalists have struggled to forge any meaningful consensus on the most foundational issues. Among the serious problems, originalist theories have each struggled to navigate between preserving core features and fixed stars of our law and remaining a distinctive theory with  fidelity to“original meaning.”

The newest effort in this struggle is the so-called “positive” turn in originalism. Positivist originalism seeks to refocus constitutional interpretation from normative questions—about morality, linguistics, interpretation, and authority—to what the law actually is, as embodied by our legal practice. This focus, we are told, comes from H.L.A. Hart’s legal positivism—a theory of law based on social facts and the actual behavior of officials in the legal system. The resulting positivist originalism—which contends that our law includes the original precepts and methods of the founding era—promises to provide historical and empirical conditions for the validation of our law, without appeal to theoretical questions about the law.

The project of positivist originalism fails. I proffer four criticisms of positivist originalism: First, positivist originalism’s commitments contravene key insights of legal positivism. Second, positivist originalism, and its real-world formulation called original-law originalism, do not actually describe our practice of law (or do so trivially). Third, the methodology of positivist originalism cannot sustain its conclusion, in light of the facts that our obligation to follow the law is at best qualified and because there are equally good competing theories describing our law. Fourth, beyond these internal flaws, positivist originalism fails to solve any of the problems that have continually plagued the originalist enterprise. Thus, the project of positivist originalism cannot fulfill its aims and is unlikely to do so without appealing to the very theoretical questions it was devised to avoid.

Discriminating Between Bostock and Oncale
Andrew Hyman

Co-blogger David Weisberg recently wrote on this blog that the U.S. Supreme Court’s opinion in Bostock v. Clayton County (2020) reached the correct result but should have relied more heavily on the rationale in Oncale v. Sundowner (1998).  I'll get to Oncale in a minute, but first want to say something about Bostock.

Bostock forbade employers from discriminating based on sexual orientation.  I still agree with what Randy Barnett and Josh Blackman wrote about Bostock.  They pointed out that the 1964 statute forbids certain “discriminat[ion] against any individual … because of such individual’s … sex.”  According to Blackman and Barnett, this referred not just to treating people of different genders differently, but doing so with bias or prejudice against one sex or the other.  So, if an employer has four employees, two males and two females, including one homosexual person of each gender, and the employer only fires the latter two, then obviously that does not indicate any bias or prejudice whatsoever against one sex or the other.  It may indicate that the employer is misguided, but the statute is not directed against that general characteristic.  As I wrote following the oral argument, "the discrimination against people in the present case (Bostock) is not against one gender or the other, even via implication or animus or anything else."  However, I probably should have emphasized that point more, and elaborated upon it, as Blackman and Barnett have done.

Getting back to the Oncale case, I agree it was correctly decided, because the lower courts had erred: the appeals court had wrongly affirmed the district court’s holding that, “Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers.”  As the Supreme Court correctly put it, “We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.”  The Court did not say whether Oncale was actually subjected to workplace harassment violating Title VII, but only that he had a valid legal claim to make upon remand to the trial court.

Mr. Weisberg says that “Mr. Oncale was sexually harassed in his workplace because his fellow employees believed he was gay.”  But maybe it was because they believed he was a homosexual man.  Apparently, Oncale was not actually gay.  It’s unclear from the Court’s opinion what the sexual preferences of his harassers were, and it’s also unclear how Oncale would have been treated if he had been a female suspected by those co-workers of being homosexual.  The Supreme Court in Bostock said: “the plaintiff [in Oncale] alleged that the harassment would not have taken place but for his sex—that is, the plaintiff would not have suffered similar treatment if he were female....”  Assuming that is correct, then Oncale seems different from Bostock, because in Bostock neither gender was discriminated against. It may have been grotesque treatment in Bostock, but not all grotesque treatment is gender discrimination.


Eric Segall on Originalism and the Second Amendment
Michael Ramsey

At Dorf on Law, Eric Segall: Gun Control, the Second Amendment, and Originalism's Folly.  From the introduction:

Although the Supreme Court will decide a few nationally important cases this term, such as one relating to the claims of a religious organization that it get preferential treatment under the free exercise clause, and yet another case challenging the validity of the Affordable Care Act, there are relatively few blockbuster cases coming down this term. Next year, however, expect a big abortion case, and the Court has already decided to hear a challenge to New York's law regulating who can carry guns secretly in public. Second Amendment advocates allege that the law is unconstitutional because people have to present a special reason to carry guns, above and beyond a generalized need for self-defense. New York argues that the law is necessary for public safety.

The Justices will, of course, pay lip service to originalism when they decide this case, but the nature of "arms" themselves and American society today are so different from colonial America that making decisions based on the values and practices of those earlier times is facially absurd. Moreover, if the Justices take seriously the history of gun laws in this country, absent obviously unreasonable or irrational laws,  they should (but won't) modify their decisions in District of Columbia v. Heller, and McDonald v. Chicago, to allow for reasonable regulation of today's deadly weapons.

This blog post outlines the major and most obvious arguments demonstrating that strong judicial oversight of state and federal gun laws cannot be justified by an originalist interpretation of the Second Amendment. The only way to arrive at strong constitutional protection for gun rights is through living constitutionalism--something this Supreme Court and most conservative scholars pretend to reject. Although we likely will not get a resolution of this case for another year, it is never too early to discuss the absurdity of originalist arguments against New York's reasonable law trying to keep its people safe.

I have some thoughts in response but they'll have to wait until I've graded my exams...


A second look at Bostock v. Clayton County
David Weisberg

Bostock v Clayton County, 590 US __ (2020), holds that Title VII is violated when an employer discriminates against persons who are either homosexual or transgender.  Justice Alito (joined by Justice Thomas) and Justice Kavanaugh dissented.  I argued on this blog (herehere and here) against the result the Court reached, but I’ve changed my mind.  The majority opinion, however, omits what I now think is the strongest argument supporting its result, so I’d like to cure both my past error and the majority’s omission.

Justice Gorsuch’s deeply flawed opinion for the Bostock majority does note the relevance of Oncale v Sundowner Offshore Services, 523 US 75 (1998).  In Oncale, a unanimous Court decided, in an opinion by Justice Scalia (Justice Thomas concurring separately), that sexual harassment in a workplace where the harassed employee and the harassing employees were all men nevertheless violated Title VII.  In relevant part, Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex[.]” 

Justice Scalia noted that the words “terms” and “conditions” in the statute were not used “in the narrow contractual sense[.]”  (523 US 78.)  He quoted with approval the Court’s opinion in Harris vForklift Systems, 510 US 17, 21 (1993): “When the workplace is permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.”  (Internal quotation marks and citations omitted.)  If Title VII prohibits workplace sexual harassment of women and if, as Justice Scalia asserts, it also “protects men as well as women” (523 US 78), then it follows logically (as Justice Alito notes in his  Bostock dissent, slip op. 36.) that Title VII prohibits workplace sexual harassment of men.  Neither of the two Bostock dissents questions the correctness of Oncale.

In Bostock, the majority and the dissenters vigorously debate whether or not terminating the employment—not, as in Oncale, workplace sexual harassment—of an individual who is or is believed to be homosexual or transgender amounts to discrimination “because of such individual’s … sex[.]  The dissenters insist, and the majority concedes, that sexual orientation and gender identity are both conceptually different from sex, but they disagree over whether or not the former two concepts are sufficiently closely related to sex to garner the protections of Title VII.  Given the Oncale precedent, they were debating the wrong question.  They should have asked: Is there any possible reading of Title VII that would provide an individual with only some, but not all, of its protections?

Mr. Oncale was sexually harassed in his workplace because his fellow employees believed he was gay.  One might question whether or not being gay, or appearing to others to be gay, is sufficiently related to sex to be protected under Title VII.  But one thing cannot be questioned: Any individual who is entitled to protection under any part of Title VII is entitled to protection under every part of Title VII.  It is impossible to read Title VII as providing that there are certain individuals who are entitled, because of their sex, to be free of discrimination in the “terms” and “conditions” of employment, but not to be free of discrimination regarding an employer’s “fail[ure] or refus[al] to hire or to discharge any individual,” or regarding “compensation” or “privileges of employment.”  Nothing in the statute implies, suggests, or even hints that certain individuals might be entitled to some of the statute’s protections, but not to all of them.     

Therefore, if Mr. Oncale and others like him—namely, individuals who either are or are perceived to be homosexual—are entitled under Title VII to a non-sexually-hostile workplace, they are also entitled to all other Title VII protections.  That is, under Title VII they can’t not be hired because of their actual or perceived homosexuality, they can’t receive less compensation or other reduced privileges of employment for that reason, and they also can’t be fired for that reason.  (The foregoing is, in my view, the decisive argument that the Bostock majority opinion misses entirely.)

The Bostock dissents imply that an employer must (per Oncale) provide homosexual employees a non-sexually-hostile workplace, but is nevertheless free to reject all homosexual job applicants.  If that is the law, no rational employer (except perhaps one catering specifically to homosexual customers) would ever knowingly hire any homosexual or anyone who might appear to be homosexual.  Why run the risk of a Title VII complaint for a hostile workplace?  Thus, the dissenters ask us to accept that Congress passed a law providing an important employment protection (a non-sexually-hostile workplace) to homosexuals, but employers may lawfully avoid providing that protection by never hiring homosexuals.  To echo Justice Scalia: Grotesque.          

Oncale also provides, by implication, an affirmative answer to the question whether transgender individuals are entitled to Title VII protection.  Consider this hypothetical: A transgender person is hired, and the employer either doesn’t know or doesn’t care that the individual is transgender.  But when other employees learn the new employee is transgender, sexual harassment erupts.  I believe that, following Oncale, the resulting sexually-hostile workplace violates Title VII if the employer takes no remedial steps.  But, again, if the transgender employee is entitled under Title VII to a non-sexually-hostile workplace, then transgender individuals are entitled to the full panoply of Title VII protections.

In my opinion, Oncale implies that the following test should decide whether an arguably sexual characteristic merits Title VII protection: If a reasonable person would find that an individual with the relevant sexual characteristic is at least as likely to be the victim of workplace sexual harassment as an individual who is or appears to be homosexual, the statute fully applies.  The result in Oncale compels the result in Bostock, and rejection of Bostock requires rejection of Oncale, because Title VII does not contemplate that certain individuals will receive only some, but not all, of the statute’s protections. 


Ryan Williams: Lower Court Originalism
Michael Ramsey

Ryan C. Williams (Boston College - Law School) has posted Lower Court Originalism (Harvard Journal of Law and Public Policy, forthcoming) (67 pages) on SSRN.  Here is the abstract:

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decision-making. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decision-makers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. But while this perspective unquestionably has value, it ignores the adjudicative context in which the vast majority of litigated constitutional questions are finally resolved.

The question of whether and to what extent lower courts should use originalism in their own decision-making is hardly an insignificant one. Although lower courts are strictly bound to follow controlling Supreme Court precedent, these strictures leave open a wide domain in which the choice between originalism and other modes of decision-making might plausibly affect the content of lower courts’ decisions. But lower courts face a number of institutional limitations and challenges that do not directly confront the Supreme Court, including greater time and resource constraints and the inability to overrule directly controlling non-originalist precedents.

This Article aims to examine lower court originalism by looking to a set of values commonly associated with our system of vertical stare decisis—including uniformity, accuracy, efficiency, percolation, and legitimacy—as well as a set of values commonly associated with originalism itself—including popular sovereignty, judicial restraint, desirable results, and positive law. In general, the use of originalism by lower court judges is likely to be more costly and error-prone than similar decision-making by the Supreme Court, while being less likely to directly further certain of the values most closely associated with originalism. This assessment does not necessarily suggest that lower courts should never seek to incorporate originalist methods into their own decision-making. But it does suggest the need for a cautious and thoughtful approach that takes proper account of the institutional limitations of lower court decision-making.

These challenges are hardly unique to originalism. Similar challenges confront virtually all constitutional theories, particularly those that, like originalism, ask lower courts to look beyond the relatively familiar tools of case-focused, doctrinal reasoning.


The Word “People” is Broader than the Word “Militia” in the Second Amendment, and the Prefatory Clause Strongly Suggests a Right to Carry Outside the Home
Andrew Hyman

The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  This language will soon be under the microscope again, now that SCOTUS has agreed to hear a gun rights case from New York.  This case mainly involves whether the Second Amendment protects a right to carry a gun outside the home, and it could provide an opportunity to revisit the question whether the Second Amendment is limited and/or expanded by its prefatory clause (the prefatory clause precedes the operative clause).

Some scholars have suggested that the word “people” in the operative clause is no broader than the word “militia” in the prefatory clause.  For example, earlier this month Adam Gopnik wrote in the New Yorker:

Justice John Paul Stevens, in a dissent that rightly became and remains famous, disassembled Scalia’s opinion [in D.C. v. Heller].  The only way to imagine that the “people” are anyone other than the members of those militias, he wrote, is by citing peripheral and secondary and much later linguistic references, in defiance of the plain meaning of the words at the time.

To me, that’s incorrect first and foremost because any dictionary of that era shows the two words (i.e. people and militia) have different meanings, and secondly because the framers could very easily have used the word “militia” instead of the word “people” in the operative clause, if they had wanted to.

The framers and ratifiers understood that the militia would not always include all categories of American citizens.  Indeed, the original unamended Constitution distinguished the militia from the Army and Navy: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States....”  Accordingly, the Second Militia Act of 1792 exempted from the militia all U.S. Army and Navy officers, and many other categories of people too.  Obviously, they understood that the “militia” is a subset of “the people.”

When a House Committee suggested replacing the word “militia” in the draft Second Amendment with the words “militia, composed of the body of the people,” the House opted to delete everything after the comma.  Maybe that’s mainly because they wanted to be concise, but it would have been just as concise for them to have replaced the word “people” in the Second Amendment with the word “militia” if that was what they were really aiming at.

Certainly the prefatory clause has meaning and effect on the operative clause.  I’ll give some examples.  First, the prefatory clause suggests that non-militia members are not entitled to weapons more deadly than those of the militia itself, if that would imperil the militia.  Second, the prefatory clause implies that it’s okay for gun rights protected by the operative clause to be well-regulated.  Third, the prefatory clause strongly suggests that the rights protected by the operative clause are not limited to the home, given that militia members in the late 1700s had to carry weapons on the way to (and during) militia service.  Fourth, because people could be kicked out of the militia or put on menial duty for being lawbreakers or irresponsible, the prefatory clause suggests that it’s okay to limit gun rights of people who are not “law-abiding and responsible citizens” (as Justice Scalia wrote in Heller).  But all of that is a far cry from claiming that the prefatory clause implies that the operative clause does not recognize any right of non-militia members.  If that were true, then the word “people” in the operative clause would have been replaced with “militia.”


Kurt Eggert: The Nondelegation Doctrine, Originalism, and Government by Judiciary
Michael Ramsey

Kurt Eggert (Chapman University, The Dale E. Fowler School of Law) has posted Originalism Isn’t What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary (Chapman Law Review, forthcoming) (84 pages) on SSRN.  Here is the abstract:

This article examines the recent scholarly debates about whether the nondelegation doctrine existed at the Founding and whether a new and more robust version of that doctrine should be constructed by the Supreme Court based on originalist claims that it was present in the original meaning of the Constitution. The article examines the evidence at the Founding and finds overwhelming evidence that Congress delegated legislative power in the early years of the Republic, that the nondelegation doctrine was rejected when it was proposed during the Constitutional Convention, and that a similar non-encroachment doctrine was rejected when proposed as part of the Bill of Rights. Today’s proponents of the nondelegation doctrine often rely on the argument that John Locke and his nondelegation mandate had great influence on those drafting the Constitution. However the historical record shows that Locke had little influence among the drafters, and that his only significant influence at the time of the drafting was with Anti-Federalists and not with the Federalists, whose views ultimately prevailed. Madison himself expressed distrust of Locke as a guide to how the powers of government should be arranged, given that Madison considered Locke’s perspective outdated and “warped” by his allegiance to England and by living under a monarchy. The article also discusses Madison’s shifting and at times contradictory views on the usefulness of a nondelegation doctrine, and his advocacy that the Constitution include a Council of Revision, made up of the Executive and judges, which would have exercised some legislative power.

The article then uses these nondelegation debates to examine whether originalism itself has a valid claim as a workable and trustworthy method of constitutional interpretation. When originalism was first conceived, it focused on the intent of the framers and mandated judicial restraint and protection of Congress’s legislative power. Now, by contrast, many originalist theorists argue that the “original public meaning” of the Constitution should govern, and some argue that the Court should exhibit “fortitude” and create a new, stricter nondelegation doctrine empowering the Court to overturn Congressional decisions about how to cooperate with the Executive Branch and what tasks to assign federal agencies. Justice Scalia argued that originalism’s greatest defect is the difficulty of applying it correctly, given the huge mass of source material that must be understood and evaluated, the limited resources judges have, and the great difficulty in “immersing oneself in the political and intellectual atmosphere of the time.” This article explores whether originalist Justices have passed this “Scalia Test” in their opinions about nondelegation. The article discusses how such a robust nondelegation doctrine would allow the Court to seize control over major policy decisions over the scope and power of the administrative state, a policy role that the framers of the Constitution explicitly rejected for the Court when they rejected the proposal of the Council of Revision. The Court creating a new, robust nondelegation doctrine would constitute judicially amending the Constitution to include a nondelegation doctrine rejected by the drafters in order to give the Court policy-making power that was also rejected by the Constitution’s drafters.