09/18/2021

Top 20 Most-Cited Originalism Scholars, 2016-2020
Michael Ramsey

Inspired by Gregory Sisk (St. Thomas) and Brian Leiter (Chicago), who have been ranking law faculties and individual professors by citation counts, here is a ranking of the top originalist-oriented scholars by citations, for the period 2016-2020.  (It uses Professor Sisk's methodology but the calculations are mine). The number represents the total number of articles in the Westlaw "law reviews and journals" database and published between 2016 and 2020 (inclusive) that cited any of the person's writing.

  1. Jack Balkin (Yale), 1510
  2. Akhil Amar (Yale), 1449
  3. Michael McConnell (Stanford), 1043
  4. Randy Barnett (Georgetown), 977
  5. Lawrence Solum (Virginia), 869
  6. Steven Calabresi (Northwestern), 781
  7. William Baude (Chicago), 761
  8. Gary Lawson (Boston University), 727
  9. Saikrishna Prakash (Virginia), 648
  10. John McGinnis (Northwestern), 641
  11. Keith Whittington (Princeton - Political Science), 586
  12. Caleb Nelson (Virginia), 551
  13. Michael Paulsen (St. Thomas), 526
  14. Philip Hamburger (Columbia), 518
  15. Josh Blackman (South Texas), 447
  16. Michael Rappaport (San Diego), 396
  17. Stephen Sachs (Harvard), 349
  18. Michael Ramsey (San Diego), 311
  19. John  Harrison (Virginia), 305
  20. (tie) Bradford Clark (George Washington), 229; Kurt Lash (Richmond), 229

Likely I've forgotten some people so this is only a preliminary list.  Please send corrections. 

Further notes: there is some some grey area concerning who should be called an "originalist-oriented scholar"; I've generally gone with self-identification. Also, I have not included professors (like my colleague Larry Alexander) who self-identify as originalists but write mostly in areas unrelated to originalism.

09/17/2021

Alexander Loehndorf: Old Constitutions and Originalism's Normative Foundations
Michael Ramsey

Alexander Loehndorf (McMaster University) has posted In Originalism's Stead: Old Constitutions and Originalism's Normative Foundations (109 pages) on SSRN.  Here is the abstract:

This thesis concerns a philosophical analysis of originalism in a context that has not yet received sufficient attention: in the context of old constitutional regimes. Through this lens, I argue that originalism becomes something lesser in that both the normative justification and legitimacy originalism once held begins to withdraw from the theory’s principled commitments. In other words, the nature of old constitutions begins to reject a normative argument for an originalist approach. The thesis bases this analysis on one originalist theory in particular for the sake of brevity: Lawrence Solum’s public meaning originalism. It proceeds through two avenues of argument: originalism as it relates to 1) historical analysis and the interpretation-construction distinction and 2) stare decisis and democratic legitimacy. Taken together, these avenues point to originalism’s fading normative justification and legitimacy in light of the challenges that old constitutions and their characteristics pose for the judicial philosophy.

09/16/2021

Eric Segall on Justice Kagan and Living Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Labels Matter: How Professor Jack Balkin Snookered Justice Kagan and Others to Fuel Faux Originalism.  From the introduction:

In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism." 

I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates. 

In his article on abortion and original meaning, published several years before Elena Kagan's confirmation hearing in 2010, Balkin wrote the following: "When the text is relatively rule-like...the underlying principles cannot override the textual command.... But where the text is abstract, general or offers a standard, we must look to the principles that underlie the text to make sense of and apply it." 

...

Balkin's "originalist" turn was much discussed, debated, and conferenced at the time inside the legal academy. When the piece came out, Elena Kagan was Dean of Harvard Law School and would continue in that role for a couple more years. I have no personal information that she was aware of Balkin's work, but if she wasn't, that would be quite surprising. 

Here is what Kagan said at her confirmation hearing when asked about originalism (this link is to a video clip):

“Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. In that way, we are all originalists.”

Kagan's "text" and "principle" approach (Balkin's words in his scholarship) to constitutional interpretation is quite similar to Balkin's theory. Let's give Kagan credit for understanding that allowing judges to use broad principles underlying most of the Constitution's imprecise provisions results in the kind of living constitutionalism that originalists have long said they deplored. Nevertheless, her uttering of that sentence--"In that way, we are all originalists"--unlike Balkin's work, reverberated both inside and outside the legal academy in ways I just can't believe she anticipated (she was testifying in front of the Senate which at the time was controlled by Democrats so she knew she had the confirmation all but locked up). 

Justices Gorsuch and Kavanugh both cited Kagan's statement about originalism in their confirmation hearings to great rhetorical effect. But Kagan's statement has been used (read manipulated) in many places before and after those confirmation hearings, almost always by folks who want to pretend that originalism is our law or should be our law. I don't believe, though I concede it is rank speculation, that Kagan would have made that statement without Balkin's scholarship explicitly tying liberal results like Roe to originalism.

And in conclusion:

As I previously wrote on this blog, far from "we are all originalists," we are in fact all legal realists now, though politicians, pundits, academics, and especially Supreme Court Justices keep trying to hide that fact, as Eric Posner suggested. Kagan's misleading sound bite, along with Balkin's attempts to transform living constitutionalism into originalism, have just made it more difficult to see SCOTUS clearly. 

Labels matter, and here so-called liberal originalism confuses and obfuscates how judges decide constitutional cases, all to the effect of helping the Republican Party. In this sense, as Mark Tushnet likes to say, "law is politics all the way down," at least in the constitutional sphere, where so many of us reside.

09/15/2021

Christine Kexel Chabot: Interring the Unitary Executive
Michael Ramsey

Christine Kexel Chabot (Loyola University Chicago School of Law) has posted Interring the Unitary Executive (50 pages)  on SSRN.  Here is the abstract: 

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.

Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

I think it's not entirely true that "originalist proponents of a unitary executive have placed heavy emphasis on history." I would say that originalist proponents of a unitary executive have placed heavy emphasis on text, namely the Article II, Sec. 1 vesting clause, plus the 1789 congressional debates, with some support from subsequent history.  Nonetheless, the article should give proponents of a unitary executive some pause, if the history is indeed sharply against them.

09/14/2021

Aaron Tang: The Originalist Case for an Abortion Middle Ground [Updated]
Michael Ramsey

Aaron Tang (University of California, Davis - School of Law) has posted The Originalist Case for an Abortion Middle Ground (52 pages) on SSRN.  Here is the abstract:

Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.

It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.

After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.

To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.

(Via How Appealing).

The paper's results, assuming they are correct, seem important but less methodologically conclusive than the paper suggests.  The originalist question is not what a majority of states did in 1868.  The question is whether access to abortion was a "privilege[ ] or immunit[y] of citizens of the United States" in 1868.  That question isn't answered only by counting up what states did at the time (although surely the more states that allowed an action to be prohibited, the less one would think that action was a privilege or immunity).  For example, even if most states did not have an income tax in 1868, that would not prove that a state income tax would violate a privilege or immunity.  Plus, 15 of 37 states is still a pretty big number (40%).

RELATED: In the Sixth Circuit's recent decision in Memphis Center for Reproductive Health v. Slatery, Judge Amul Thapar, concurring and dissenting, argues at length that the Roe/Casey framework is inconsistent with the Constitution's original meaning.  Among many other things, he says (footnotes omitted):

The [Roe] majority asserted that it “was not until after the War Between the States that [abortion] legislation began generally to replace the common law.” Roe, 410 U.S. at 139. Not so. According to one scholar, by 1849, eighteen of the thirty states in the Union had passed statutes limiting abortion. Eugene Quay, Justifiable Abortion–Medical and Legal Ethics, 49 Geo. L.J. 395 app. 1 at 447–520 (1961) (collecting statutes). At the end of 1864, twenty-seven of the Nation’s thirty-six states had such laws. Id. On the eve of the Fourteenth Amendment’s ratification, this number had risen to thirty states. Id.; see also Roe, 410 U.S. at 174–75 & n.1 (Rehnquist, J., dissenting) (noting that the number was thirty-six when including the territories). The tide continued to shift in favor of greater abortion restrictions during the Reconstruction Era. Of the seven states that lacked abortion restrictions in 1868—Delaware, Georgia, Kentucky, North Carolina, Rhode Island, South Carolina, and Tennessee—all but one adopted abortion statutes by 1896. See Quay, 49 Geo. L.J. 395 app. 1 at 447–520. And the last of those states passed its statute by 1910. See id. at 475–76.

(Via Ed Whelan at NRO Bench Memos.)

Professor Tang's paper is an important qualifier to these claims -- statutes "limiting" abortion are not necessarily complete prohibitions, and apparently sometimes they weren't.  It's important not to conflate these two claims (to be clear, I'm not suggesting that Judge Thapar does, just that it happens sometimes).  It's possible, as Professor Tang suggests, that Judge Thapar might be correct about the lack of an unlimited right to abortion in 1868 and yet there might have been a limited right to abortion.  But more fundamentally I agree with this point by Judge Thapar:

A right to do something because the state has not yet regulated it is quite different from a right to do something because the state cannot regulate it. Cf. PennEast Pipeline Co. v. New Jersey, 141 S.Ct. 2244, 2261 (2021) (“[T]he nonuse[] of a power does not disprove its existence.” 

UPDATE:  At Volokh Conspiracy, Josh Blackman has similar (but more extended) thoughts: The Fact That X States Failed To Criminalize An Act in 1868 Does Not Mean That Committing The Act Is A Fundamental Right.  From the conclusion:

What would it take to make the originalist case that the right to abortion is "deeply rooted," and was considered fundamental in 1868? Perhaps if it was mentioned in the same breath as other well-known fundamental rights: the freedom of speech, freedom of conscience, liberty of contract, the right to keep and bear arms, and so on. We can cite chapter and verse to support these other rights. But simply looking to states that failed to criminalize an act is not enough.

COMMENT BY ANDREW HYMAN:  When a right is not deeply rooted in history, that is an excellent reason to refrain from constitutionalizing it via the Due Process Clause.  But when a right is deeply rooted, it still must be a procedural rather than substantive right in order to have any plausible constitutional basis under the Due Process Clause.  As Justice Byron White wrote in a 1977 dissent, “Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.”  The Court ought to acknowledge that simple truth stated by Justice White, and then conform to it.  As for the substantive provisions in the Bill of Rights that have been incorporated against the states, using the Due Process Clause for that purpose was simply wrong; those enumerated substantive rights should have been incorporated via the Privileges or Immunities Clause whose plain meaning instructs the courts to apply against the states those rights of U.S. citizens that already apply against the federal government.

09/13/2021

John Grove Reviews Max Edling's "Perfecting the Union"
Michael Ramsey

At Law & Liberty, John G. Grove:  America's Federal Settlement (reviewing Perfecting the Union: National and State Authority in the US Constitution by Max Edling (Oxford Univ. Press 2020)).  From the introduction: 

Max Edling’s recent book, Perfecting the Union, is a succinct, valuable account of the framing of the Constitution with an eye toward the division of power between the federal and state governments. It draws heavily upon, and might even serve as a useful introduction to, the body of scholarship he refers to as the “Unionist” interpretation of the American founding. The Unionist view stresses the importance of the theory and practice of federalism to understanding both the American Revolution and the framing and adoption of the Constitution.

The Unionist view shows how central the debates over the imperial federal structure were to the American Revolution, which pitted the newly dominant paradigm of parliamentary sovereignty against the rights of colonial assemblies which had been nurtured by the metropole’s “salutary neglect.” Independence, then, brought forth on this continent a new problem: how would the thirteen “free and independent states” order their relationship with one another? What kind of federal union could capture the best parts of the old colonial arrangement—unity and strength abroad, and self-government at home—without the monarchical loyalty that had structured the old order?

The Federal Compact

Edling believes that to understand the Constitution, we have to understand the long public deliberation that took place on these questions, running from the Articles of Confederation, through the various failed attempts at reform in the 1780s, the Philadelphia convention, the state ratification conventions, and the first Congress. The upshot of Edling’s account is that the Constitutional convention was prompted almost entirely by concerns about international and interstate relations, and the document therefore produced a national government that possessed authority almost entirely limited to these areas. This limited remit was a direct holdover from the Articles, which had envisioned a firm union of states that could act confidently as a single unit on the world stage without giving up the states’ individual independence and self-government at home. That hope, however, had been threatened by several distinct problems with the Articles. Most importantly, the lack of a taxing power limited the United States’ ability to protect its basic interests and take up an equal station on the world stage with European powers. Almost as important were the growing conflicts between states arising over economic tensions, with no means of independent resolution.

The Constitution’s enhanced powers, then, were narrowly aimed at rectifying these and other problems. The establishment of a more autonomous governing structure was a side effect—a necessity for a government empowered to address these problems. It did not signify the establishment of a “polity that gave the central government precedence over the states” but merely ensured that each level of the government was fully capable of successfully carrying out the tasks it was assigned. The Constitution, therefore, “transformed the structure of the American union . . . but it did not transform the fundamental purpose of the union, which remained a political organization designed to manage the relations between the American states, on the one hand, and between the American states and foreign powers, on the other.”

And from the conclusion:

Edling’s account is, for the most part, a convincing and useful corrective to nationalist understandings of the Constitution and its context. It is missing an important element, however: a systematic account of sovereignty and its relationship between the people, states, and the federal government. Much confusion can ensue when the distinction in the founding era between an ultimate “sovereignty” and “government power” is blurred. ...

Edling is almost entirely focused on the division of governmental authority, not ultimate popular sovereignty, and the book does not run into many problems on account of this distinction. But he does occasionally allude to matters that cannot be understood without it. For instance, he says at one point that “The authority of the Constitution rested on popular sovereignty whereas the Articles of Confederation had been an agreement between the states,” but elsewhere he calls the constitution a “plan of union between sovereign republics” and a “compact between states” He also refers to the states voluntarily “circumscribing their sovereignty.” There are not necessarily any contradictions to be had here, but a thorough presentation of the distinction and the use of more precise terminology could help for a more complete picture. On this point, readers will find a more thorough account in Aaron Coleman’s The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800.

Though one cannot fault a short study for failing to look at every implication, the book is also lacking much by way of assessment of the plausibility of this division of power. Anti-Federalists, of course, did not believe such a balance of federal and state power could reasonably be struck and maintained. Give to the central government the sword, the purse, and the authority to interpret its own limits, and it will eventually use whatever pretense it can find to arrogate to itself supreme authority in all areas. Even in the early republic, the lines between foreign and domestic policy, and especially between intra- and interstate commerce were blurry. They are even more so now. On this point, at least, does subsequent American political development provide the inevitable vindication of the Anti-Federalists?

09/12/2021

Gerard Magliocca on Chief Justice Marshall on the Necessary and Proper Clause
Michael Ramsey

At Balkinization, Gerard Maggliocca (Indiana): An Alternative Test for the Necessary and Proper Clause.  Professor Magliocca notes this comment from Chief Justice Marshall (in his biography of George Washington): 

In asserting the authority of the legislature to pass the bill, gentlemen contended, that incidental as well as express powers must necessarily belong to every government: and that, when a power is delegated to effect particular objects, all the known and usual means of effecting them, must pass as incidental to it. To remove all doubt on this subject, the constitution of the United States had recognized the principle, by enabling congress to make all laws which may be necessary and proper for carrying into execution the powers vested in the government. They maintained the sound construction of this grant to be a recognition of an authority in the national legislature, to employ all the known and usual means for executing the powers vested in the government. Then they took a comprehensive view of those powers, and contended that a bank was a known and usual instrument by which several of them were exercised.

Thus he (Magliocca) finds in Marshall's quote an alternative test for necessary and proper: that the implied power claimed by Congress under the clause be a "known and usual means" for carrying into execution an enumerated power.  In conclusion:

I think that "known and usual means" is a more helpful test for analyzing incidental powers (especially in light of over two centuries of practice) than the more typical formulations. 

For example, the thrust of the Chief Justice's opinion in Sebelius was that a mandate to buy health insurance was unusual--it was not a "known and usual means" for exercising the commerce power. The same could be said for a federal vaccination mandate on private employers, if you assume that OSHA even has that power under the relevant statute. And so on.

09/11/2021

Joseph Blocher & Mitu Gulati: Property, Sovereignty, and the Law of the Territories
Michael Ramsey

Joseph Blocher (Duke University School of Law) and Mitu Gulati (University of Virginia School of Law) have posted Navassa: Property, Sovereignty, and the Law of the Territories (Yale Law Journal, forthcoming) (52 pages) on SSRN.  Here is the abstract:

The United States acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the history of the law of the territories—a story that continued 50 years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States. Modern scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights, citizenship, and self-determination. But the property framework, and accompanying private-law tools, can also play an important role in understanding and dismantling the existing colonial structure.

Via Larry Solum at Legal Theory Blog, who says: "I had not known about the Guano Islands Act!  Highly recommended.    Download it while it's hot!"

As perhaps suggested by earlier posts, I have some doubts about the constitutionality of the Guano Islands Act.  But I would not want to start that debate over again.

09/10/2021

John McGinnis Reviews Justice Breyer's "The Authority of the Court and the Perils of Politics"
Michael Ramsey

At Law & Liberty, John McGinnis, The Pitfalls of Justice Breyer’s Rambling Consequentialism (reviewing Justice Breyer's book The Authority of the Court and the Perils of Politics (Harvard University Press 2021)).  From the introduction:

... Given that the Supreme Court has no effective power to enforce its judgments, what makes other political actors respect the decisions of the Court? As Breyer notes at the beginning [of the book], the question of why we obey the law goes back to ancient times. Cicero provided three possible answers for legal obedience: fear of punishment, hope of rewards, or the perception that the law is just.

But Breyer never concisely answers the question of why Americans demand that their leaders obey the decisions of the Supreme Court in particular cases, even as they and their leaders frequently disagree with those decisions. He consistently observes that Americans have over time acquired a habit of obedience. But that answer just raises the question of what inculcated that habit and what will perpetuate it.

A brief approximation of Breyer’s answer is the courts will inculcate habits of obedience if they are not regarded as “political.” This conclusion is not original, but it is in a sense originalist. In Federalist 78, Alexander Hamilton argued that the Supreme Court was the branch most fitted for constitutional review because it did not act through “will” (read politics) but judgment. That capacity for dispassionate judgment unaffected by the kind of politics that motivates elected officials provides the Court’s advantage over the other branches of government in maintaining the constitutional order. According to Breyer, Americans will keep obeying the Supreme Court so long as they by and large agree with Hamilton’s claims.

And from later on:

The greatest failing of the book is that he does not consider at all how jurisprudence bears on the political appearance of the Court. At one point he says that he does not want to get into jurisprudential debates, but he clearly lays out his own—one that eschews adherence to an originalist parsing of text in favor of broad values, like democracy or equality, that he claims animate the constitution as well as focusing on the consequences of the Court’s decisions.

But it is precisely this kind of jurisprudence that makes the justices seem like politicians in robes and that is likely to undermine the public’s perception of their comparative advantage [of non-partisanship]. Politicians also claim their policies will advance broad values like democracy and equality. They make claims for the beneficial consequences of their policies. Whatever else may be said about originalism, its careful attention to the meaning of an old text and complex legal rules for interpreting it do not have any resemblance to a stump speech.

In Federalist 78, Alexander Hamilton noted this difference in method while defending judicial review: “To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” By precedents, Hamilton here likely means precedents on methods of textual interpretation. His discussion of judicial method does not resemble at all Breyer’s emphasis on values and consequences.

09/09/2021

Taxation by International Consent?
Michael Ramsey

Recently I participated in a Federalist Society webinar titled Taxation by International Consent?, along with tax attorney Joshua Wu (Latham & Watkins) and political scientist Stephen Krasner (Stanford), moderated by Jeremy Rabkin (George Mason/Scalia).  Here is the description:

Finance ministers from leading industrial states have been trying, this summer, to work out an agreement on a minimum rate for corporate taxes.  Does it matter that this agreement won’t be adopted by the constitutional procedure for making treaties?  Will it still matter, by itself, to U.S. tax law and tax enforcement?  Should we expect other nations to abide by an agreement of this kind?

As I don't know anything about tax, my role was to talk about the constitutional and international law aspects of international agreements.  In short, my view of the global minimum corporate tax agreement is that it will be done as nonbinding agreement, which I think is within the President's executive power.  It would not infringe the treaty power because a treaty is necessarily a binding agreement under the international law definition of the founding era.  As I put it in Evading the Treaty Power

The word “treaty” in the Constitution indicates a binding agreement under international law. Vattel, the leading international law writer of the eighteenth century, wrote: “He who violates his treaties, violates at the same time the law of nations; for, he disregards the faith of treaties,—that faith which the law of nations declares sacred.” Americans of the founding era were concerned that treaty violations would impugn the nation’s honor (an important consideration at the time) and more practically would give cause for war at a time when the United States was a weak nation militarily. In discussing the importance of treaties, members of the founding generation consistently referred to treaties’ binding nature. For constitutional purposes, therefore, an essential element of a treaty is that it is binding as a matter of international law.

Nonbinding agreements are necessarily not treaties, because (by definition) they lack the essential characteristic of bindingness and therefore lack the corresponding implications for preserving honor and not giving offense. A nonbinding agreement is in effect a statement of policy (or rather multiple parallel statements of policy) which the relevant parties understand can be changed unilaterally in any party’s discretion. Because a nonbinding agreement is not a treaty and does not implicate the concerns of a binding commitment, the treaty-making clause is not relevant to its constitutional status. Put precisely, the treaty-making clause does not preclude the President from making nonbinding agreements.

Of course, the President must point to an affirmative source of the power to make nonbinding agreements, and since the Constitution does not mention them expressly, that must be found in some other source of power. ... [T]he theory of executive foreign affairs power holds that the vesting of “executive Power” with the President in Article II, Section 1,includes foreign affairs powers not specifically granted to other entities by the Constitution. Under this approach, diplomacy and the management of foreign affairs are powers of the President, and those powers would likely include a general constitutional power to make nonbinding agreements.

But (as I say on the webinar), the consequence of proceeding via a nonbinding agreement is that the agreement is not part of international law or U.S. domestic law.  It isn't part of "supreme Law of the Land" under the supremacy clause; it doesn't impose any obligation on Congress to enact it; it can be rejected or ignored by a subsequent President, or even by the current President if he changes his mind.  It's really just a joint statement of policy (and thus belongs more in Professor Kranser's domain than mine).

An interesting question (but an entirely academic one given the composition of the Senate) is whether a global minimum tax constitutionally could be adopted by treaty.  The argument against it would be that Article I, Section 7 says that "[A]ll Bills for raising Revenue shall originate in the House of Representatives."  A treaty isn't a "Bill," of course, but perhaps the origination clause implies that the House has an exclusive power to initiate tax-raising measures.  There are, however, many tax treaties in existence, principally aimed at avoiding double taxation; it's not clear if they are distinguishable.

Another possibility we discuss is adopting a global minimum tax by congressional-executive agreement.  In theory, the President could work through the Organisation for Economic Co-operation and Development (OECD), where the discussions have been ongoing, to develop a model agreement, and then present the agreement to Congress for approval by simple majorities in both Houses.  I think congressional-executive agreements are probably unconstitutional under the Constitution's original meaning (because unlike nonbinding agreements they do infringe the treaty power), but they are well established in modern practice in some areas (but not tax).  Our assessment is that in any event Congress isn't likely to cede control of the development of the minimum tax rules (which likely will need to be quite complex) to the President, and so a congressional-executive agreement in the nature of ones used in the international trade area is unlikely for tax.

09/08/2021

Lawrence Solum on Textualism [Update with Further Thoughts]
Michael Ramsey

At Larry Solum's Legal Theory Blog, an updated entry in the Legal Theory Lexicon: Textualism.  From the introduction:

One of the most important topics in legal theory is “legal interpretation,” which deals with the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. ... 

...

Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who were competent speakers of the language and who knew that they were reading a statute (or court decision, etc.).

But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. 

What "Plain Meaning" Is Not

Another way to understand plain meaning is to contrast this idea with others.  Here are some:

  • Literal Meaning.  The literal meaning of a text is provided by its semantic content alone, with no consideration of context.  Literal meaning is sparser than plain meaning, because the conventional semantic meaning of many words and phrases is very sparse, with contextual disambiguation or precisification enriching the plain meaning.
  • Purposive Meaning.  Sometimes we use the word "meaning" to represent the purpose for which a text was written.  Purposive interpretation is a rival of textualism.
  • Reasonable Meaning:  The plain meaning of a text may not be the best meaning (from the perspective of some policy goal or normative theory).  The plain meaning of a text may not be the "reasonable"or "desirable" meaning.

The distinction between textualism and what Professor Solum calls "Literal meaning" seems particularly important, and it's often ignored by critics of textualism (and sometimes even proponents).  Textualism embraces context as a necessary way to understand text.  See my discussion here (in Part II).

FURTHER THOUGHTS:  On reflection, I think I don't agree with Professor Solum's description of "plain meaning,"  As I understand the above passage (though I may be misreading it), he's saying that the "plain meaning" includes "contextual disambiguation or precisification." (I'll just call it context).  If that's so, I don't see what the word "plain" adds.  It's just the meaning of the text, as understood in context.

Instead, I think of "plain meaning" as what he calls "literal meaning."  It's what appears on the face of the text, before considering context. Sometimes it's sufficiently clear that it settles the meaning.  Sometimes it isn't, so textualists turn to context to clarify otherwise unclear text (and to be sure that what appears to be the literal meaning is in fact the true meaning).

Put this way, I would say that textualists do not limit themselves to the "plain meaning" because they do look at context.  Sometimes the text's meaning isn't plain, but is still discernible using context.

09/07/2021

The Issue of Birthright Citizenship in U.S. Territories is Closely Linked to the Issue of Illegal Immigration
Andrew Hyman

Michael Ramsey and I have had a spirited discussion here on this blog about the first sentence of the Fourteenth Amendment, which says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  Essentially, Mike has argued that there is an implicit "might" before the last word of that Citizenship Clause, whereas I think there is an implicit "do."
 
Accordingly, we have debated whether people born after passage of the Fourteenth Amendment are entitled to birthright citizenship in U.S. territories, or instead a statute or treaty is needed for that purpose.  Although not (yet) persuaded, I have learned a lot from the discussion, and from occasional related comments from David Upham and John Vlahoplus.  Just for the record, here's the core of the discussion between Mike and me:
 
 
 
Me on November 24, 2020:  "Citizenship and Almond Joys"
 
 
 
 
 
I’ll just add a couple quick things.  First, the interpretation that I've advocated dates a long way back.  For example, in 1899, Christopher C. Langdell argued that "United States" in the Citizenship Clause refers only to the states, because, "if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'"  As I've pointed out, a proposal to do exactly that was rejected in 1867.
 
The only other thing that I’d like to mention now is that this discussion about territories is relevant to the well-known ongoing controversy about whether a person, born to parents who are anywhere in the country illegally, becomes entitled to birthright American citizenship.  It has long been understood that the words "state wherein they reside" in the Citizenship Clause refers to legal domicile rather than merely presence or property ownership, as Senator Jacob Howard implied in 1866 while correcting a typo: "The word 'State' in the eleventh line is printed 'States.' It should be in the singular instead of the plural number…." This domicile is a condition on both state and federal birthright citizenship, when the Citizenship Clause is read like this: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they [do] reside." 

09/05/2021

Harold Anthony Lloyd: Recasting Canons of Interpretation and Construction into "Canonical" Queries
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Recasting Canons of Interpretation and Construction into "Canonical" Queries (66 pages) on SSRN.  Here is the abstract:

This Article advocates recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes).

As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time.

Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction.

09/04/2021

Michael L. Smith: Originalism and the Inseparability of Decision Procedures from Interpretive Standards
Michael Ramsey

Michael L. Smith (Glaser Weil Fink Howard Avchen & Shapiro LLP) has posted Originalism and the Inseparability of Decision Procedures from Interpretive Standards (24 pages) on SSRN.  Here is the abstract: 

In his forthcoming article, Originalism: Standard and Procedure [Ed.: available here], Stephen Sachs describes an unending debate between advocates of originalism and their critics. Originalists argue that certain historic facts play a role in determining the meaning of constitutional provisions. Critics respond that making determinations about these facts is difficult, if not impossible for judges, attorneys, and the general public. Sachs seeks to rise above this debate, arguing that originalism should not be treated as a procedure for interpreting the constitution, but instead as a standard by which interpretations may be judged. Even if originalism does not set forth a set of rules for its implementation, it is still of use to the extent that it provides an account of what interpretations are correct or mistaken, and may point interpreters toward “rules of thumb” for interpreting the Constitution.

This Article takes issue with this approach. First, Sachs argues that treating originalism as a standard, rather than a procedure, effectively avoids critiques over difficulties of implementing originalism. But whether originalism can be implemented remains an important consideration when choosing between standards of interpretation. If a standard typically cannot be implemented that standard is less preferable to an alternate standard of interpretation that is easier to implement. Second, the move to a focus on standards further alienates discussions that are already technical and theoretical from the practical realities that judges, attorneys, and the general public face. Even if treating originalism as a standard avoids implementation critiques, theorizing about originalism at this level is even less useful for actors in the real world.

Originalism is not like other instances in law where statutes or opinions refer to other opinions, statutes, or third-party publications. Instead, originalism requires rigorous and complex analysis of historic facts to determine the original public meaning of constitutional provisions—an undertaking that most judges, attorneys, members of the public, and even legal academics may find challenging. Treating originalism as a standard does not avoid this concern—and even if it did, these issues should be confronted, rather than evaded.

09/03/2021

Jeffrey Schmitt: Slavery and the History of Congress's Enumerated Powers
Michael Ramsey

Jeffrey M. Schmitt (University of Dayton - School of Law) has posted Slavery and the History of Congress's Enumerated Powers (Arkansas Law Review, forthcoming) (40 pages) on SSRN.  Here is the abstract:

Legal scholarship often ignores or minimizes slavery’s profound influence on the history of federal powers. In fact, a number of influential scholars contend that constitutional history supports an understanding of Congress’s enumerated powers that would leave no subject reserved to the states. This scholarship, however, is inconsistent with the history of the Founding, early Congress, and Marshall and Taney Courts. Before the Civil War, virtually all American elites agreed that Congress had no power to interfere with slavery in the states. Because slavery was fundamental to the national economy, this meant that the federal government had no power to regulate social or economic activity within the states, regardless of its connection to interstate commerce. The modern regulatory state is thus incompatible with how federal powers were understood before the Civil War, and legal scholars should stop pretending otherwise. Especially at this time of racial reckoning, legal scholarship should acknowledge slavery’s pervasive influence on constitutional history. Doing so will both undermine the moral legitimacy of originalism and emphasize the need for a living Constitution.

09/02/2021

James Pfander Responds to Commentary on his Book "Cases Without Controversies"
Michael Ramsey

In the concluding part of the Balkinization symposium on James Pfander's book  Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press, 2021), Professor Pfander has two posts responding to the symposium commentators:

Cases Without Controversies: An Author Responds (With Gratitude) (I)

Cases Without Controversies: An Author Responds (With Gratitude) (II)

Fro the first post: 

I was struck by the response to the book’s account of the historical prevalence of uncontested adjudication. That history, when coupled with the textual distinction between cases and controversies, puts pressure on the Court, which continues as [Amanda] Tyler noted to gesture to the past in restating its injury and adverse party rules.  In the actual past, after all, nineteenth-century jurists viewed an application for naturalization as a “case” within Article III -- an uncontested claim of right in the form prescribed by law -- even though such cases did not feature injuries or opposing parties.  How then, reviewers wondered, could the modern Court continue to insist on such injuries in cases like TransUnion [LLC v. Ramirez, 141 S. Ct. 2190 (2021)] and why was the book less assertive about urging the Court to admit the error of its ways?

Much may depend on one’s theory of constitutional interpretation and how much weight to ascribe to what sorts of history in crafting constitutional doctrine. For some readers, including perhaps [Robert] Pushaw and [Kevin] Walsh, the history itself may prove dispositive, combining as it does both a proposed reading of the text and a set of practices under that text that help to liquidate its meaning.  For [Tara] Grove and [Amanda] Tyler, history may count in constitutional interpretation, even though original meanings may not always deserve controlling weight.  For [Fred] Smith and [Diego] Zambrano, and of course for all of us, history may serve alongside other substantive commitments in giving content to constitutional guarantees.

My goal was to persuade readers with different approaches to constitutional discourse that Article III distinguishes between cases and controversies.  That’s why I proposed to take account both of the rise of uncontested litigation in the first one hundred years after the Constitution was ratified (litigation that continues in different forms today), and of the modern case-or-controversy rule, which began slowly in the Gilded Age but can now claim its own 100-year history on an otherwise divided Supreme Court.  How to make a place for uncontested litigation in a federal judicial system headed by a Court that repeatedly restates and applies the injury and adverse-party rules?  Scholars understand that no-injury litigation had proceeded on federal dockets, in the form of prerogative writ claims to enforce public norms and private informer or qui tam suits to collect bounties from wrongdoers.  The Court grudgingly accepted qui tam in Vermont Agency (2000) but did so without suggesting that history alone could dislodge its case-or-controversy rule.

My suggestion was to emphasize a concept, the litigable interest, broad enough to contain both uncontested claims and contested disputes over issues of federal law.  And to suggest that the Court might administer the litigable interest concept differently in uncontested and contested situations (much the way its rules of standing vary by claim and claimant).  I came to this synthesis on recognizing that however much I might disagree with the Court’s case-or-controversy dispensation, a catalog of uncontested practices from the past might fail to persuade the Court to confess error.  Naturalization was shifted to an agency more than one hundred years ago and privateering disappeared after the War of 1812, ending much private uncontested prize litigation in admiralty.  Zambrano rightly asks how one should weigh such proceedings in the interpretive process, now that they no longer occupy federal dockets.

Rather than offer a detailed account of constitutional interpretation or specify a set of constitutional particulars to guide future adjudication, the book proposed a form of constructive constitutionalism in an effort to start a conversation about the meaning of Article III and the place of uncontested litigation on federal court dockets.  If the ideas in the book take hold, then others may join the discussion.  Perhaps adverseness has a more important role to play in constitutional litigation; that’s where the adverse-party rule emerged, as progressives sought to ward off contrived challenges to federal law.  Perhaps injury and redressability concepts continue to have value as the Court declines the invitation to rule on some of the policy detritus of the Trump years, such as the attempt to exclude non-citizens from the census count or the attack on Obamacare.  The litigable interest concept could make room for uncontested litigation and, at the same time, preserve a role for continued application of some justiciability rules in contested matters.

09/01/2021

Jud Campbell: The Emergence of Neutrality
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted The Emergence of Neutrality (Yale Law Journal, forthcoming) (78 pages) on SSRN.  Here is the abstract:

This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is largely untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, protecting speech within socially defined boundaries. And the modern embrace of content and viewpoint neutrality, it turns out, occurred only in the 1960s as the Supreme Court merged earlier strands of rights jurisprudence in novel ways. The emergence of neutrality, this Article shows, was more gradual, more contested, and more contingent than we now assume. Recovering this history exposes the novelty of the modern neutrality paradigm, and it casts new light on the history of other First Amendment concepts, like prior restraints, low-value speech, and overbreadth.

To understand these developments, it is necessary to trace a second doctrinal genealogy focusing on the very idea of fundamental rights. Older views of expressive freedom, this Article reveals, were embedded in a different conceptual framework for thinking about rights. And once again, the role of neutrality was radically different. Today, neutrality is ubiquitous in rights discourse, reflecting the prevailing view that rights are domains in which people can make their own moral choices. Thus defined, rights need not be absolute, but they at least demand governmental neutrality with respect to values—a view that is reinforced by the undesirable alternative of judges defining non-neutral boundaries. Yet this neutrality-based view of rights also emerged well into the twentieth century, reflecting a transmogrified synthesis of earlier ideas.

Recovering these older paradigms powerfully illustrates how deeply our own perspective shapes the way that we view the Constitution. Things that appear natural when reading the First Amendment, it turns out, are refracted through a distinctively modern lens. Integrating history into modern rights jurisprudence thus poses a substantial and unresolved challenge, warranting further engagement by scholars and judges.

(Via Dan Ernst at Legal History Blog.)

08/31/2021

The Oregon Acquisition: Inherent Sovereign Powers and the Commerce Clause [Updated with Comments]
John Vlahoplus

The history of the Oregon acquisition demonstrates the broad early interpretations of the federal government’s inherent sovereign powers and, incidentally, of the commerce clause.  From the early nineteenth century, America claimed ownership of the territory by the inherent power of discovery without relying on any statutory claim or treaty grant.

On May 11, 1792, the American Robert Gray sailed into the fabled River of the West, which had long eluded European explorers, and named it the Columbia after his ship (Charles Carey, A General History of Oregon Prior to 1861, at 93–94).  Gray’s voyage was not governmental; it was a purely private commercial venture (Carey at 90).  In early 1803, before the Louisiana Purchase, President Jefferson proposed an expedition along the Missouri River across French territory and onward to the Pacific in part to develop American competition to the British fur trade and to divert the area’s trade inward to the United States (Carey at 111–12).  Jefferson justified the expedition under the congressional commerce power.  “The interests of commerce place the principal object within the constitutional powers and care of Congress, and that it should incidentally advance the geographical knowledge of our own continent, can not but be an additional gratification.”  By an Act of February 28, 1803, Congress appropriated $2,500 for the expedition “for the purpose of extending the external commerce of the United States.”  Even in early 1803 the commerce clause was interpreted to authorize congressional action to expand commerce, not merely to tell people “[i]f you want to trade or exchange with others, here is how you must go about it.” (see Randy Barnett, The Original Meaning of the Commerce Clause, at 139).

Lewis and Clark reached the mouth of the Columbia River in 1805.  Their expedition paved the way for John Jacob Astor’s Pacific Fur Company to set up private commercial operations in the area beginning in 1811.  In 1813 Astor’s partners learned that war had broken out and that Britain had dispatched forces to assert its sovereignty over the area and oust the Americans.  Astor appealed for U.S. military protection to no avail.  Under duress from the approach of British warships, Astor’s partners sold the prized Fort Astor to a Montreal-based rival at a fraction of its value.  A British warship arrived shortly thereafter, and its captain asserted British sovereignty.  The British flag replaced the American flag over the renamed Fort George. (Carey at 210–15).

In preparing for the negotiations to end the war, President Madison recalled Astor’s plea for help and insisted on the fort’s restoration.  On March 22, 1814, Secretary of State Monroe instructed the American negotiators in terms that made clear the American claim to the Oregon territory and utter rejection of any British rights to it:

Should a treaty be concluded with Great Britain, and a reciprocal restitution of territory be agreed on, you will have it in recollection that the United States had in their possession, at the commencement of the war, a post at the mouth of the river Columbia, which commanded the river, which ought to be comprised in the stipulation, should the possession have been wrested from us during the war.  On no pretext can the British Government set up a claim to territory south of the northern boundary of the United States.  It is not believed that they have any claim whatever to territory on the Pacific ocean.  You will, however, be careful, should a definition of boundary be attempted, not to countenance, in any manner, or in any quarter, a pretension in the British government to territory south of that line.  (here at 731).

The resulting Treaty of Ghent, ratified in 1815, provided that “[a]ll territory, places, and possessions whatsoever, taken by either party from the other, during the war . . . shall be restored without delay . . . .”  In 1817 the United States sent a warship “to the Columbia river with instructions ‘to assert the claim of the United States to the sovereignty of the adjacent country, and especially to reoccupy Astoria, or Fort George.’”  The ship arrived in August 1818, and its captain raised the American flag over the fort on August 19.  The Americans interpreted this as a restitution of sovereign territory that it held before the war.  The British, however, interpreted it as merely returning the property of the fort. (Carey at 216–17).  Britain continued to assert its territorial claims, and shortly afterward the two nations signed the 1818 treaty that allowed joint access to the territory without prejudicing either’s claims in order to avoid another war.

I have not found a single period claim that the United States acquired the Oregon territory under a statutory claim or a treaty grant—and with good reason.  There was no such statute, and neither party believed that the Treaty of Ghent granted sovereignty over Fort George to the United States.  The British denied that the handover involved sovereignty at all, and the United States insisted that it merely restored sovereign territory that the nation owned before the war. 

One can argue which party was right under international law, just as Britain and the United States did until the treaty of 1846 settled the dispute.  But the United States’ public position could only be justified by the federal government’s inherent sovereign powers.  All of the claims described above occurred before Congress extended federal law to the territory and before Spain and Russia ceded their claims to the United States.  The U.S. insisted that it owned the territory before 1814, not that it acquired the territory later nor that some later action retroactively created pre-1814 ownership.

One question remains.  Could the territory have belonged to the United States before 1846 but not been within the United States then?  The case of William C. McKay bears on the answer.  For the following discussion of the case and the congressional response, see here at 415–20. 

The British Hudson’s Bay Company and its predecessor continued to occupy and operate Fort George after the handover in 1818.  McKay was born there in 1824 to a British father who worked for the Hudson’s Bay Company.  Thus McKay was born in the very fort that the United States insisted was its sovereign territory before the War of 1812 and had been restored to it afterward.

The Oregon federal District Court adjudicated a challenge to McKay’s citizenship in 1871.  The court found that the Fourteenth Amendment’s citizenship clause (“All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .”) was merely declaratory of the common law rule that applied in the territory during the period of joint access from 1818 to 1846.  The court denied McKay citizenship, however, because he was born to a British father in a British-occupied portion of the territory.

Oregon Senator Corbett introduced a naturalization bill in Congress to reverse the result in the case.  Before he could explain the District Court’s reasoning, other Senators ridiculed the decision as absurd and the bill as unnecessary because the United States had title to the territory during the period and persons born there were subject to U.S. jurisdiction.  Senator Thurman objected to the proposal because he assumed that the District Court judge thought that the United States did not own the territory:

As long as it depends upon the decision of some judge who does not understand what he is about, it is a trifling matter; but for the Congress of the United States to say that we did not own that territory between the Columbia river and the forty-ninth parallel, and that we have to naturalize the people who were born upon it and were subject to our jurisdiction, for the Congress of the United States to say that, is a pretty serious matter.

Senator Casserly objected for the same reason:

I do not wish, unless it is unavoidable, to object to a bill which is desired by the Senator from Oregon, and which respects that State; but the question involved here is whether or not the United States for a series of years set up a false and unfounded title to territory, and whether it shall now be declared by acts of Congress to have been false and unfounded. I would rather have it laid over until some time when the question can be fully discussed.

Oregon Senator Kelly then explained the court’s common law ground for the decision: 

[I]n order to be a citizen of the United States he must have been not only born within the United States, but born within the allegiance of the United States. The child of a British minister born in this city [the District of Columbia] . . . is born in the United States, but he is born without the allegiance of the United States; and so it was there in Oregon.

Senator Trumbull did not think the bill was necessary, but he supported it purely as a favor to Corbett, eliciting laughter from the rest of the Senate.  Congress did not act through a naturalization bill, however.  Instead, it inserted a single sentence in an appropriations bill recognizing that McKay and those similarly situated were born in the United States.  It provided simply “[t]hat all persons born in the district of country formerly known as the Territory of Oregon, and subject to the jurisdiction of the United States at this time, are citizens of the United States in the same manner as if born elsewhere in the United States.”  Congress did not naturalize them like persons born outside of the United States.  It treated them the same as if they had been born elsewhere in the United States rather than in a British-occupied portion of the United States.  At least for purposes of natural born citizenship, the Oregon territory was within the United States even when Britons had equal rights of access and the territory was not destined for statehood.

COMMENT FROM ANDREW HYMAN: This raises the question whether someone born in what later became the State of Oregon (in 1859) ever had U.S. citizenship, if she happened to be dead, or domiciled outside the United States, on 18 May 1872 when the quoted federal statute referred to “this time.”  The answer to this question could be “yes” because of that statute, or because of the Fourteenth Amendment, or because of Article VI of the Adams-Onis Treaty, or because of the old English common law, or some combination of these things.  But maybe the answer is “no.”  (Or maybe it depends whether she was expatriated, or subject to any extradition treaty, as of 1872.)  It’s quite a riddle.

MICHAEL RAMSEY ADDS:  I think the judge in the McKay case had it right.  McKay wasn't "subject to the jurisdiction" of the United States at the time of his birth because, although the U.S. executive claimed Oregon for the United States under international law, Congress had not extended U.S. jurisdiction to Oregon (and didn't do so until 1848).  Moreover, under the rule of Fleming v. Page, Oregon was not "in" the United States in 1824 because no legislative act (treaty or statute) had extended U.S. territory to include Oregon (see my discussion here as to the meaning of "in the United States").  For what it's worth, that accords with basic grade-school U.S. history, which teaches that the U.S. acquired Oregon by treaty in 1846.  Children of U.S. citizens born in Oregon prior to 1846 were U.S. citizens by the applicable naturalization act (providing that children of U.S. citizens born outside the U.S. were citizens); but McKay was not the child of U.S. citizens.  None of this is inconsistent with John Vlahoplus' account of how the U.S. executive claimed Oregon for the U.S. under international law prior to 1846.

08/30/2021

The Limits of Corpus Linguistics for Legal Purposes: A Response to David Weisberg
Karen Sullivan

[Editor's Note:  For this guest post, we welcome Karen Sullivan, Senior Lecturer in Linguistics, University of Queensland, Australia.]

I appreciate David Weisberg’s post Corpus Linguistics and Heller in the The Originalism Blog responding to my Duke Law blog post on the Second Amendment. Weisberg’s post opens up an opportunity to clarify what corpus linguistics can and cannot do for legal interpretation. Weisberg seems misguided on minor points which may be relevant to the Second Amendment, which I note below. More generally, however, I agree with Weisberg that even rare senses of a word or construction cannot at present be ruled out in the legal interpretation of a given instance.

First, I would like to observe that Weisberg’s understanding of external causals apparently relies on the lone instance that I provide in my blog. This seems to have led to the mistaken impression that external causals must involve “the physical world”. Present-Day English examples of external causation include Stay away from the cliff because it’s dangerous or The virus is contagious so hygiene is important. External causation is entirely compatible with “abstract concepts”. I would recommend Jean-Cristophe Verstraete’s 1998 paper “A semiotic model for the description of levels in conjunction: external, internal-modal and internal-speech functional” (Functions of Language 5(2): 179-211), which provides tests for identifying different types of causation, as a starting point.

Second, I’m not surprised that my modern translations of the Second Amendment’s syntax sound unnatural to “a native speaker of American English” such as Weisberg. The premise of my post is that the Second Amendment cannot be read as if it were Present-Day English, so a literal translation of the Amendment is unlikely to roll off the tongue. This is particularly true because I left unchanged vocabulary such as militia and bear arms that were not the topic of the study. Regardless, I suspect that Weisberg was in fact able to process my translations. His criticism of the external reading noted above suggests that he understood that on an external reading, the right guaranteed by the Amendment would apply only when arms were kept and borne for the purpose of a well-organized militia, and not when arms were kept and borne for other purposes.

Returning to Weisberg’s main point, however, I agree that there is no guarantee that an external causal meaning of the Amendment was intended. Linguistics offers many clues as to a speaker’s potential meaning, but these may not be sufficient to narrow the interpretations down to one. However, linguistic information can (1) establish which interpretations are more likely, and (2) determine which interpretations are possible. I argue that the first of these functions will be helpful to legal interpretation only once legal scholars have agreed on a standard approach to probability. The second function, I argue, should be of immediate value.

Whereas the role of probability is well established in linguistics, my impression is that the legal profession lacks a shared understanding of probability. In linguistics and other sciences, measures of statistical significance determine which hypotheses are considered probable enough to be interesting or publishable, for example. In legal studies, there seems to be no predetermined level of probability that will either cause an interpretation to be accepted or rejected. Perhaps it is unrealistic to imagine that the legal community could reach a binding agreement that any interpretation with less than 1% probability would be discarded, for example. It would of course be necessary to also agree on what kind of corpus would be used and how probability would be determined. However, an agreement of this type would make corpus data phenomenally useful. Corpus results would settle debates rather than inflaming them.

Even without a general agreement of this kind, linguistics still offers the second function noted above, in that it can determine which interpretations are possible. If a particular sense of a word or construction has 0% probability based on the largest available corpus – the entire record of English – then I suggest it should be rejected as an interpretation. If legal scholars can accept this modest proposal, then corpus linguistics can immediately serve to eliminate many readings of words and phrases. For example, the Court’s opinion in Heller describes the Second Amendment clause headed by being as having a “clarifying function” for the main clause, a description that best fits an “addition/accompanying circumstance” clause as defined in Bernd Kortmann, Free adjuncts and absolutes in English: Problems of control and interpretation. (London: Routledge, 1991). However, being-clauses that precede a main clause, in all documented forms of English, ceased to permit this function around 1600. My 2018 search of three major English corpora, including over 3,000 instances of being, revealed not a single example of an initial being-clause with this function for almost two hundred years before the Second Amendment was written. (Karen Sullivan, “Being-clauses in historical corpora and the U.S. Second Amendment,” English Studies 99(3): 1-19 (2018)). Of course, there are English documents not covered in these corpora. If an instance of the function were found, then the probability would no longer be 0% and the interpretation would again be on the table. I invite supporters of the “addition/accompanying” interpretation to look through records from the appropriate time period. But if none of us can find even one example of this type, can the Heller interpretation be defended? If legal scholars cannot accept a complete lack of attestation in recorded English as evidence of non-occurrence, then there is no level of probability that they can agree on as convincing, and corpus results will not resolve any questions of interpretation.

Personally, I fail to understand how any claims to originalism can exist without historical corpus linguistics. You have to study a language variety before you can understand it. Nonetheless, a haphazard application of corpus linguistics is surely worse than none at all. I hope that legal scholars are prepared to do the hard yards of establishing a shared framework for the construal of probabilities. If not, then I agree with Weisberg that interpretations cannot be rejected on the basis of rarity.

08/29/2021

Jorge Contreras: 'Not' Madison
Michael Ramsey

Jorge L. Contreras (University of Utah - S.J. Quinney College of Law) has posted 'Not' Madison (CPI Antitrust Chron, Jul. 2021) (10 pages) on SSRN.  Here is the abstract:

This essay challenges the claim that President James Madison, the namesake of the Trump Administration’s “New Madison” Approach to Antitrust and Intellectual Property Law, was an advocate for strong patent rights unconstrained by the limitations of antitrust law. While Madison supported the authority of Congress to grant patents to inventors, this view was widely shared by his contemporaries. Rather than advocating for strong patent rights, Madison’s writings reveal that he was concerned about the “exorbitant gains” that patents and other monopolies could confer upon their holders, while at the same time preventing individuals from exercising their trades. Most importantly, Madison formulated his views a full century before the enactment of the antitrust laws, in an economic environment in which private firms could not acquire market power absent governmentally-issued monopolies. This suggests that Madison is an inapt namesake for the policies of a federal agency that is charged with enforcing the antitrust laws today. For all of these reasons, the “New Madison” approach is plainly “Not” Madison, and the continued misuse of this label distorts the views of a major figure in American Constitutional history.

08/28/2021

Frederick Schauer: Unoriginal Textualism
Michael Ramsey

Frederick Schauer (University of Virginia School of Law) has posted Unoriginal Textualism (George Washington Law Review, Vol. 90, 2022) (58 pages) on SSRN.  Here is the abstract:

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

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

UPDATE:  Also: It's the Download of the Week.

08/27/2021

Holden Tanner on Conservative Judging
Michael Ramsey

At Law & Liberty, Holden Tanner (clerk, Supreme Court of Texas): How to Recover Conservative Judging.  From the introduction:

Conservative jurisprudence is at a crossroads.

One path wanders from our history and traditions. Our originalist arguments beat back living constitutionalism, but they have led us away from the core method of American legal reasoning. They have distanced legal conservativism from the well-worn ways of American jurisprudence. By brandishing the centrality of text, conservative jurists sought to constrict the aggrandizement of the New Deal Court and weed out the inventions of the Warren Court. But these victories track a collision course with our abiding philosophical enemy—legal realism. We tacitly accepted the core tenets of that modern heresy: that judges make law, that they do so purely on policy grounds, and that only written law can constrain them. Like a puzzle piece that no longer fit, we cast aside the common law tradition.

It doesn’t have to be this way. There is another path, one paved with traditionalism, economics, constitutionalism, and moral reasoning. It leads to a holistic conservative jurisprudence. Along the way, legal conservatives will encounter pitfalls and obstacles: questions about the judicial role, the separation of powers, and morality. But arriving at a jurisprudence for the common good—not the meandering esoterica of legal elites—means starting back towards the right direction.

This Feature begins by discussing four movements in conservative legal thought: traditionalism, law and economics, constitutionalism, and natural law. It then asks why some have fallen by the wayside. It picks up on a trail we’ve forgotten: our traditions of common law reasoning, in which conservative legal philosophy can flourish. It closes with a roadmap for nationwide legal reform that begins with our state courts.

And from later on:

In his 1995 Tanner Lectures, Justice Scalia tore apart the legal profession. His complaint? Students of the common law case method were utterly unequipped to operate in a system of legislation. While the Justice was “content to leave the common law, and the process of developing the common law, where it is,” he questioned whether “the attitude of the common-law judge” was fit for the work of federal and state judges. He viewed the common law as a way to let expert jurists, rather than democratic legislatures, craft the law as they saw fit; he conceded that legal realism had conquered the common law courts.

He then skewered American jurists for lacking a coherent theory for interpreting texts. For Justice Scalia, applying common law methods to written law raised constitutional concerns. A distinct theory was needed. He led the profession out from its ineptitude with his originalist and textualist philosophy.

But Scalia’s arguments went too far, eroding unwritten law and classical legal reasoning. From the premises that (1) common law was merely judge-made law and (2) legislators alone should make law, it follows that common-law judging in a system of separated powers must go. Justice Scalia’s triumph was establishing the truth of the latter premise. His fatal flaw was tacitly accepting the former. Scalia, like many others, ceded the common law tradition entirely to legal realism.

The result has been a wholesale reorientation of legal conservatism towards a positivist jurisprudence.

Descriptively I think this is interesting and correct, but I tend to side (unsurprisingly) with Scalia.

And from the conclusion:

[W]e must revive the traditional understanding of common law reasoning that separates our view from that of legal realism.

We have been woefully misled by the canard of “judge-made law.” Rather than viewing common law as a body of rules, it must be understood as a method of legal reasoning. A common law court does not simply make up law. We should instead see that they establish law from the general legal rules already made available through reason and tradition. To “establish” does not mean to create ex nihilo but rather to take what is general and amorphous and render it concrete. Courts establish law by giving it a concrete shape or definitive application. This is true even of judicial decisions applying written law. Establishing doctrine and determining applications does not make the judicial decision itself a source of law.

A simple model of common law reasoning is this: Human reason grasps moral imperatives that provide primary rules of human conduct. These moral rules—requiring us to refrain from harming others or to keep our promises—can be understood as binding legal rules, even though they are unwritten. From a positivist perspective, this requires only a rule of recognition designating them as such. From a natural law perspective, all legal rules are derivative of the moral force of these primary rules. Even the obligation to obey positive law flows from them.

But these rules are relatively indeterminate; people need more specific guidance. The judge, in our system, discerns these moral principles and then gives them a definite shape by reference to custom, which informs the reasonable expectations of the parties. Over time, the case law itself forms customs that courts might reasonably follow. In a hierarchical system, higher courts bind lower courts in their determinations of how custom concretizes the requirements of morality. Reason and tradition thus ground the common law in pre-existing legal obligations.

The choices that judges make, while not fully mechanical, are meaningfully constrained by their limited role as adjudicators of concrete disputes. As courts develop standards of evidence, burdens of proof, procedures for litigation, and necessary elements of claims, they establish more clearly what a court ought to require before finding a violation of those pre-existing moral obligations. Just as a well-reasoned textualist opinion clarifies the application of a statute and provides a doctrinal test for its application, a common law opinion elucidates the requirements of morality and provides administrable rules for deciding future cases.

08/26/2021

Seth Barrett Tillman on the Voting Power of the Senate President Pro Tempore [Updated with Comment from Andrew Hyman]
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Tillman on Volokh on the Senate President Pro Tempore (commenting on this post by Eugene Volokh, noted here).  From the introduction:

On August 23, 2021, on the Volokh Conspiracy, Professor Eugene Volokh wrote:

Now I suppose one could argue that the Senate President pro tempore would be able to cast two votes, when the VP is Acting President of the U.S.: One in his capacity as Senator, and one in his capacity as Vice-Vice-President. But apparently that has never been the understanding.

The issue of multiple voting by a Senate President Pro Tempore has certainly been discussed over the years. The most relevant Constitution text is not entirely clear on this point.

U.S. Const. Article I, Section 3, Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they [the senators] be equally divided.

U.S. Const. Article I, Section 3, Clause 5: The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

There are two ways to read Clause 4:

The Vice President of the United States shall be President of the Senate, but [the Vice President] shall have no Vote, unless they [the senators] be equally divided.

The Vice President of the United States shall be President of the Senate, but [the President of the Senate] shall have no Vote, unless they [the senators] be equally divided.

In other words, does the ostensible grant of a vote on equal division apply exclusively to Vice Presidents (or to Vice Presidents when acting as Senate President), or does it apply more generally to all Senate Presidents, including Senate Presidents Pro Tempore? ...

Followed by some surprising history (to me anyway).

COMMENT FROM ANDREW HYMAN:  There are other pertinent clauses aside from Article I, Section 3.  For example, there is this clause in Article V:

[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Allowing the President Pro Tem to have two votes would mean that his state has a total of three votes, thereby depriving all the other states of equal suffrage.  And there is also this clause in the Seventeenth Amendment (which was copied from the original unamended Constitution).

[E]ach Senator shall have one Vote.

These two clauses explain why the President Pro Tem of the U.S. Senate has never voted twice on any motion or measure.

08/25/2021

Lament Hilts on Cass Sunstein and the Duck-Rabbit Problem
Michael Ramsey

Lament Hilts (independent) has posted Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Very Short Response to Professor Cass Sunstein (and Others) (9 pages) on SSRN.  Here is the abstract:

I amend one word from Professor Sunstein’s conclusion.

It is tempting to think that in the kinds of cases [and texts] that are of concern here, non-textualism is a kind of lie. It might be. But it might also be an honest mistake, a matter of sincerely thinking that you are “seeing that” [which all others see or that which is there to be objectively seen]” when you are actually “seeing as” [which is seeing only one meaning among several potential meanings which others see].” Still, it is a serious problem if a judge does not know that she is seeing as. If she is, in fact, seeing as, she should explain why that is the right way to see, and if she thinks that she is seeing that, she might see no need to offer an explanation.

To illustrate my point, I refer to how non-textualists have developed Hamilton’s Federalist No. 77 in relation to the doctrinal debate on the unitary theory of the executive and the scope of the President’s removal power. My purpose in doing so is not to settle that substantive debate—a matter about which I have no published or settled views. Rather my purpose is methodological: it is to illustrate how non-textualist commentators and their readers “see” and how they choose to support their understanding of what they “see” with historical and other legal materials.

08/24/2021

Eugene Volokh on the Vice President as Acting President
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: If VP Becomes Acting President When President Is Temporarily Disabled, What Happens to VP's Tiebreaker Vote? From the introduction: 

The Vice President can break a tie in the Senate, which is especially important when the Senate is split 50-50, as it is now. Say a President gets ill enough that he recognizes that he's becoming temporarily incapacitated (or the Vice-President and the majority of the Cabinet so recognizes, for instance if the incapacitation comes on suddenly). The VP would become Acting President; but would she still be able to cast the tie-breaking vote in the Senate?

Professor Volokh says no, mostly based on the text, which says (Art. I, Sec. 3): 

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Thus (it seems) the VP ceases to be President of the Senate (and presumably loses the tiebreaking vote associated with that office) when the VP assumes the office of President of the United States.

Does the 25th Amendment (which provides for the VP temporarily taking over the President's duties) change the assessment?  One might argue that it does.  The Amendment says that in case of disability, the "powers and duties [of the President] shall be discharged by the Vice President as Acting President."  Perhaps, then, the VP is not in this situation "exercis[ing] the Office of President of the United States" (as the VP would do if the President died and the VP succeeded to the office of President) but rather is simply exercising the President's "powers and duties" while retaining the office of Vice President (and thus also remaining President of the Senate).

Professor Volokh rejects this reading mostly on the basis of the legislative history, which contains this exchange: 

Mr. SALTONSTALL… Under the Constitution, the Vice President is President of the Senate, but if he became Acting President under this amendment, he would no longer be President of the Senate, but the President pro tempore would become the President of the Senate. Is that correct?

Mr. BAYH [a principal author of the amendment]. That is correct.

Mr. SALTONSTALL. The Vice President would become Acting President and thereby lose his title as President of the Senate. Is that correct?

Mr. BAYH. That is correct.

Is that enough? Not if the language were clear the other way, I'd say, but here it's not clear the other way.  Would Justice Scalia's legendary aversion to legislative history in statutory interpretation carry over to constitutional interpretation in this setting?  It seems like it would.  But not all originalists would agree.  The exchange seems somewhat persuasive to me, especially if there isn't any legislative history or other discussion pointing the other way.  Not because we ultimately care about the intent of Bayh and Saltonstall, but because the way they read the language is (somewhat) indicative of its ordinary meaning.

Still, I don't think it's as clear a case as Professor Volokh does.

08/23/2021

Mark W. Smith & Dan Peterson: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation
Michael Ramsey

Mark W. Smith (Visiting Fellow in Pharmaceutical Public Policy and Law, University of Oxford) and Dan M. Peterson (independent) have posted Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation (141 pages) on SSRN.  Here is the abstract:

Some scholars, judges, and advocates have recently urged that legal corpus linguistics, a methodology that uses computerized searches of large volumes of texts known as “corpora,” can determine the original meaning of constitutional provisions. More particularly, certain of these advocates have argued that corpus linguistics searches of Founding era corpora prove that the Second Amendment right to keep and bear arms protects only a collective, militia right and not an individual, private right to arms, contrary to the Supreme Court’s interpretation of that amendment in District of Columbia v. Heller, 554 U.S 570 (2008).

In this article, we argue that relying on corpus linguistics to determine the meaning of the Second Amendment suffers from severe conceptual and practical difficulties. One of the most fundamental flaws concerns the central methodological assumption of corpus linguistics—the “frequency hypothesis”—which posits that the most frequent meaning of a word or phrase returned by a corpus search should be the meaning adopted for purposes of constitutional interpretation. Even if the phrase “bear arms” most frequently appears in a military context, that does not mean that the constitutional language excludes an individual right to bear arms for self-defense and other private purposes. Military and militia references were more likely to appear in public discussions of the right to bear arms simply because they were more “newsworthy” than the mundane acts of ordinary people carrying a firearm for hunting or defense, which would rarely be recorded. Contemporary examples, including references by the Founders themselves, show that the right to “bear arms” included protection of an individual right as well as furthering a well-regulated militia.

In addition, corpus linguistics suffers from serious problems concerning the composition of the corpora, which are biased in favor of elite language usage and are critically incomplete, missing some of the key texts that historians and legal scholars have long relied upon in discerning the Second Amendment’s meaning. Use of legal corpus linguistics also raises serious practical difficulties in actual constitutional litigation, including the absence of the usual safeguards applicable to expert or “scientific” evidence.

In the end, the counting of words resulting from a corpus search cannot overcome the history and traditions at the time of the Founding that allowed free carry and use of firearms, and the core conception by the Founders that self-protection with arms is a pre-existing right that cannot be taken away from the individual by any act of civil society.

08/22/2021

Acquisition of Oregon by Inherent Sovereign Powers:  A Reply to Andrew Hyman
John Vlahoplus

Andrew Hyman’s recent post mistakes the timing and manner of the U.S. acquisition of the Oregon territory.  As the State Department explains, the United States claimed the territory “based on the explorations of Lewis and Clark” (who reached the mouth of the Columbia River in 1805) “and on the establishment of trading posts set up by John Jacob Astor’s Pacific Fur Company” (which began in 1811).  Those are grounds from the inherent powers of a sovereign.

The 1818 convention with Great Britain did not affect the American title.  The convention expressly provided “that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country.”  The United States continued to claim title to the territory, and a federal District Court later ruled that the Fourteenth Amendment’s citizenship clause (“All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .”) was merely declaratory of the common law rule that already applied in the territory at the 1824 birth of the plaintiff in the case.  All of the U.S. senators who discussed the case on the floor of the Senate, including Lyman Trumbull, insisted that the United States owned the territory throughout the period that the 1818 convention gave Britons a right of access.  From the American perspective, the United States did not acquire the land south of the forty ninth parallel under the 1846 convention with Great Britain but rather ceded the land north of it.  The United States gave up on “Fifty-four forty or fight.”

The Oregon Country was unincorporated for decades under the later invented standards of the Insular Cases.  Congress refused to exercise its jurisdiction in the territory.  It discouraged Americans from emigrating there by refusing to promise statehood.  Many members of Congress expected the territory to become its own republic, a U.S. military post or naval base, a home for non-white North Americans, or to be used for some other purposes besides statehood.  As Senator Dickerson stated in 1825, “is this territory of Oregon ever to become a state, a member of this Union? Never. The Union is already too extensive—and we must make three or four new states from the territories already formed.”  Senator Dickerson went further in defending the refusal to extend federal law to the territory.  His words have special poignancy for residents of our remaining territories:  “As yet we have extended our laws to no territories, but such as were or are to become states of the Union. We have not adopted a system of colonization, and it is to be hoped we never shall. Oregon can never be one of the United States. If we extend our laws to it, we must consider it as a colony.”

For a more complete discussion of the territory’s acquisition and birthright citizenship there, including the District Court judge’s unique application of the common law rule to children born there to British fathers, see here.

MICHAEL RAMSEY adds: If I'm understanding this right (and I'm no expert on Oregon), there's actually not an issue of Congress exceeding its enumerated powers because Congress didn't act with respect to Oregon until 1848, at which point it was both implementing the 1846 treaty (as I would put it, see here) and (as Andrew Hyman says) regulating incidental to its power to admit new states. Rather, the issue is whether the President exceeded his constitutional powers (or acted pursuant to inherent sovereign power) in claiming Oregon for the United States prior to 1818.  My view is that the President in asserting a claim to territory under international law exercises the executive power over foreign affairs vested in the President by Article II, Section I (a delegated power, not an inherent sovereign power).  But the executive power does not give the President lawmaking power with respect to territory such as Oregon, and my understanding is that the U.S. properly didn't exercise lawmaking power in Oregon until Congress passed the 1848 Act.

ANDREW HYMAN adds:  We haven’t mentioned the Adams-Onis Treaty (1819) which specified that the King of Spain “cedes to the said United States all his rights, claims, and pretensions to any territories east and north of the said line” which included the Oregon Country in addition to Florida.  Conversely, President Monroe gave this pledge in Article VI of the treaty:

The inhabitants of the territories which His Catholic Majesty cedes to the United States, by this treaty, shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States.

That looks like a pledge of future statehood, notwithstanding the great distance between the ceded territories and the nation’s capital, although one might argue that this pledge only applied to Florida.

In any event, there was no federal legislation over the Oregon Country before Congress manifested its goal of statehood in 1848.  Legislators like Senator Mahlon Dickerson, who in 1825 opposed future statehood for Oregon, successfully opposed federal legislation as to Oregon because any such legislation would treat Oregon like a permanent colony and thus would not be needful.  Taking that position literally would preclude even naturalization statutes applicable to the Oregon Country.

James Cleith Phillips: The Original Meaning of Bailable in the Utah Constitution
Michael Ramsey

James Cleith Phillips (Chapman University Dale E. Fowler School of Law) has posted The Original Meaning of Bailable in the Utah Constitution (11 pages) on SSRN.  Here is the abstract:

This short article analyzes the original meaning of the term "bailable" in the Utah Constitution. There are two potential senses: that bailable means bail is required as long as one can meet its requirements, such as "sufficient sureties," or that bailable means the judge is authorized in his or her discretion to allow bail. By looking at contemporaneous dictionaries and the interpretation of identical or similar language in other state constitutions in the late 1800s, the article finds that the former sense was the likely meaning of the Utah Constitution in 1895.

08/21/2021

Aaron Coleman on Peter Hoffer on Daniel Webster
Michael Ramsey

At Law & Liberty, Aaron N. Coleman (University of the Cumberlands -- History): The Devil and Daniel Webster (reviewing Peter Charles Hoffer's Daniel Webster and the Unfinished Constitution [University Press of Kansas 2021]).  From the introduction:

Although Webster once possessed a towering reputation—the “Goliath of the North” one Northern newspaper called him—he is nearly forgotten today. ... Beyond occasional references in works on the Marshall court or relegated to the sidelines in political and biographical treatments, Webster’s role as a constitutional litigator and political thinker goes relatively unnoticed.

Peter Charles Hoffer’s new book will change that. Published in the famed American Political Thought series by the University Press of Kansas, Daniel Webster and the Unfinished Constitution argues that Webster dedicated his legal and political career as well as his constitutional thought to completing what Hoffer calls the “unfinished Constitution.” As Hoffer convincingly reveals, Webster’s attempts to complete the Constitution did not occur in legislative halls. Rather, they emerged in his winning arguments in some of the most important Supreme Court cases in American history. That scholars have overlooked Webster’s attempt to complete the Founders’ work and the significant influence over American constitutionalism should not be surprising. As Hoffer notes, “novelty and vision ha[ve] gone to the justice rather than the advocate,” and Webster is no different. His sizable contributions to American constitutional development percolated through “the opinions of Chief Justice John Marshall, and, to a much lesser extent, Chief Justice Roger Taney.”

And here is the book description from Amazon: 

Daniel Webster and the Unfinished Constitution reveals Webster as the foremost constitutional lawyer of his day. Peter Charles Hoffer builds a persuasive case that Webster was more than a skilled practitioner who rose rapidly from his hardscrabble New Hampshire origins. Hoffer thoroughly documents the ways in which Webster was an innovative jurist. While Chief Justice John Marshall gets credit for much of our early constitutional jurisprudence, in fact in a series of key cases Marshall simply borrowed Webster’s oral and written arguments.

For Webster, Marshall, and many lawyers and jurists of their day, professions of adherence to the Constitution were universal. Yet they knew that the Constitution could not be fixed in time; its text needed to be read in light of the rapidly transforming early republic and antebellum eras or it would become irrelevant. As Chief Justice Marshall explained in Bank of the United States v. Deveaux (1809): “A constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles.” But were these “broad and general principles” themselves fixed? For Webster there were landmarks: the Contract Clause and the Commerce Clause. While others were exploring and surveying the Northwest Territory and the Louisiana Purchase, Webster set out to map the spaces in the constitutional and legal landscape that were unmarked.

Peter Charles Hoffer provides an insightful and timely study of how Webster’s analysis of three key constitutional issues is relevant to today’s constitutional conflicts: the relationship between law and politics, between public policy and private rights, and between the federal government and the states, all of which remain contentious in our constitutional jurisprudence and crucial to our constitutional order.

08/20/2021

Acquisition of National Territory Should be Done for Enumerated Constitutional Reasons as Happened in the Case of Oregon
Andrew Hyman

John Vlahoplus recently blogged here in favor of the federal government generally having “inherent sovereign rights under international law.”  I agree that the federal government has many of those rights but not necessarily all of them.  

The context of this current discussion is territorial acquisition, so my paragraphs below will stick to that subject, but first a couple general thoughts.  The Constitution is very careful about the law of nations.  It does not give Congress general power to effectuate or implement the law of nations, but only power to “define and punish…Offenses against the Law of Nations.”  So people should be cautious about inferring a more general power.  If the federal government does have general power under the law of nations, then the most logical place for it would be as part of the treaty power, rather than by statute.  Mike Ramsey has written that “the Constitution's original meaning most likely did not include subject matter limitations on treaty-making.”  If he is right about that, then the federal government does have all the power that John Vlahoplus attributes to it (and more), but only through the treaty power.  I have expressed skepticism about Mike’s view, but he may be right.

John Vlahoplus mentions Oregon in four of his five paragraphs, so let’s consider the acquisition of Oregon.  Oregon used to be much larger than the state of Oregon is now.   The Anglo-American Convention of 1818 established a stalemate in Oregon with the British, so that disputed areas were opened to the people of both countries until the Oregon Treaty of 1846.  That treaty definitively secured Oregon in the possession of the United States, and two years later Congress established the Oregon Territory.  Section 14 of the 1848 Act extended the old Northwest Ordinance of 1787 over the new territory.  Among other things, the old Ordinance had said that it would:

provide also for the establishment of States, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest….

So it appears that, within two years of the acquisition of Oregon, Congress made very clear that its lands were destined for statehood.  To my mind, this places the burden of proof on anyone who asserts that Oregon was not destined for statehood from the day those lands were acquired by the United States.  Thus, the acquisition was authorized by the congressional power to admit new states, combined with the Necessary and Proper Clause.  There’s no need to infer any inherent sovereign rights under international law, or to rule out subject matter limitations on treaty-making, in order to justify the Oregon acquisition.  The President and Congress simply followed the enumerated powers.  Even putting aside the power to admit new states, Congress wanted to enhance the fur trade, so the acquisition of Oregon was arguably supported by the commerce powers enumerated in the Constitution, although the power to admit new states seems like the most obvious basis for that acquisition.

Eric Segall on Stephen Sachs on Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism Diluted.  From the introduction:

In a forthcoming article in the Harvard Law Review titled “Originalism Standard and Procedure,” Professor Stephen Sachs continues his Arthurian quest to convince (not sure whom, academics, judges, philosophers, everyone) that originalism is indeed our law. This mission, which he and his frequent writing partner Professor Will Baude, have been on for a while, has generated numerous essays, articles, and blog posts sometimes referred to as the “positivist turn,” or “originalism is our law” originalism. In his latest Article, Sachs argues that originalism is a standard, not a decision procedure. In more common terms, he tells us that originalism is a “destination, not a route.”

 Sachs says the point of borrowing the philosophical distinction between a “standard of rightness” and a “decision procedure” is to demonstrate, not that originalism is true, but that many arguments against originalism are wrongheaded. In his own words, “the uncertainty of our legal past, or the inconsistent behavior of originalism in office, might not count against the theory [of originalism] itself." 

That originalism is difficult, or that reasonable people might disagree about what it shows in a case or series of cases, or that it is easily manipulated and/or evaded, does not disprove the theory because, according to Sachs, we often have standards of correct behavior that are hard to get right but which remain important, worthy, and highly desirable. For example, Sachs points to consequentialists, like retired Judge Richard Posner, who argue that judicial decisions should lead to the best consequences while admitting that how to figure out what that means is hard and usually contestable. So too with originalism. Even if we cannot all get there together, Sachs argues, having the destination is a good thing, and fights along the way are inevitable because humans (including judge and philosophers) are fallible.

When combined with his previous work, Professor Sachs suggests that “our law is the founders’ law until legally changed,” that originalism is at least a formidable contender for being the “founders’ law,” and that whether or not judges are or even could be faithful originalism is irrelevant to what our law is-which is, indeed, originalism.

Professor Sachs’s thesis is unpersuasive for a strange reason, given that he self-describes his work as positivist. The reality, on the ground, is that originalism was never our law at the Founding (just a small part of it), and that originalism (without strong judicial deference) as a final landing place is a road to nowhere but the imposition of personal value judgments by judges who hide behind misleading pointers to disputed historical evidence. It is unclear if Sachs even disagrees with all this because he says the "effectiveness" of originalism as a decision-procedure "is besides the point." 

My view is that Professor Sachs' claim that originalism is a standard (and the conclusions that flow from that claim) can and should be separated from his claim that originalism is "our law."  The former does not depend on the truth of the latter.

08/19/2021

Balkinization Symposium on "Cases Without Controversies" by James Pfander
Michael Ramsey

At Balkinization, a symposium on James Pfander's new book, Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press, 2021).  Here are the contributions so far:

Against Conflating “Cases” and “Controversies”, by Fred Smith

Reviving Justice Story: Pfanderian Cases and Article III, by Diego A. Zambrano

Pfander on “Cases” and “Controversies” and the Proper Role of the Federal Courts: Uncovering Important Lost History, by Amanda L. Tyler

Unearthing The Historical Meaning Of Article III “Cases”: The Value Of Nonpartisan Originalism, by Robert Pushaw

Beyond Default, by Tara Leigh Grove

The Once and Future Federal Judicial Power, by Kevin Walsh

And here is the book description from Amazon:

This book offers a new account of the power of federal courts in the United States to hear and determine uncontested applications to assert or register a claim of right. Familiar to lawyers in civil law countries as forms of voluntary or non-contentious jurisdiction, these uncontested applications fit uneasily with the commitment to adversary legalism in the United States. Indeed, modern accounts of federal judicial power often urge that the language of the Article III of the U.S. Constitution limits federal courts to the adjudication of concrete disputes between adverse parties, thereby ruling out all forms of non-contentious jurisdiction. Said to rest on the so-called “case-or-controversy” requirement of Article III, this requirement of party contestation threatens the power of federal courts to conduct a range of familiar proceedings, such as the oversight of bankruptcy proceedings, the issuance of warrants, and the adjudication of applications for mandamus and habeas corpus relief. By recounting the tradition of naturalization and other uncontested litigation in antebellum America and coupling that tradition with an account of the important difference
between cases and controversies, this book challenges the prevailing understanding of Article III. In addition to defending the power of federal courts to hear uncontested matters of federal law, the book examines the way the Constitution's meaning has changed over time and suggests a constructive interpretive methodology that would allow the Supreme Court to take account of the old and the new in defining the contours of federal judicial power.

08/18/2021

Luke Sheahan on Freedom of Assembly
Michael Ramsey

At Law & Liberty, Luke C. Sheahan (Duquesne University - Political Science): Freedom to Speak or Freedom of Assembly?  From the introduction:

Last month, the Supreme Court decided Americans for Prosperity Foundation v. Bonta, the latest freedom of association case. While Chief Justice Roberts’ opinion for the Court concludes rightly that states cannot require charities to submit donor information to the government, it misses an opportunity to ground that freedom more firmly in the text and history of the First Amendment. As such, the reasoning of the case is a disappointment, although there are indications that the Court is headed in a better direction in the way it handles freedom of association cases.

The state of California required organizations to disclose the names and addresses of major donors. Petitioners refused to submit the appropriate forms without redacting their donors’ names. This did not present a problem until 2010, when the California Attorney General’s office stepped up its enforcement effort and fined the charities for violation of the disclosure requirement. Petitioners filed suit arguing that the requirement to submit major donor information was a violation of their First Amendment rights. California argued that having charities’ major donors on file helps the office when it investigates misconduct. The District Court granted an injunction against the state enforcement of the disclosure requirement and the Ninth Circuit Court of Appeals reversed and remanded, directing the District Court to reject Petitioners’ facial challenge. After a back and forth, the Supreme Court granted cert and reversed the Ninth Circuit, finding that the donor disclosure requirement was facially unconstitutional.

The Court’s opinion, though, presents two disappointments in its reasoning. First, the Court ruled on this case as a freedom of association case, rather than a freedom of assembly case. This matters because freedom of association appears nowhere in the First Amendment, whereas freedom of assembly has its own clause. Ruling on assembly would have grounded the right in the text of the First Amendment. This move was entirely predictable, given that the Court hasn’t ruled on the Assembly Clause in decades, but disappointing nonetheless.

And from further on:

This move by the Court [in NAACP v. Alabama, as reaffirmed in Bonta] to articulate a separate, non-textual right, was unfortunate. The Court had rendered the Assembly Clause moot through a series of complicated jurisprudential and historical errors, which it failed to correct. As John Inazu argues in Liberty’s Refuge, freedom of assembly is in the text of the First Amendment and its history and jurisprudence indicate that it provides protection for groups like the NAACP by providing a broad right of association. This right was essential to religious liberty, and it was appealed to as early as the 1790s in defense of Democratic-Republican groups, as Justice Thomas noted in his concurrence, citing the Becket Fund’s amicus brief.

Agreed.  Revive the free assembly clause!  (Not sure what it means though).

08/17/2021

Acquisition of Territories
John Vlahoplus

Michael Ramsey questions whether any enumerated power authorized Congress to initially acquire Hawaii given that Congress annexed it by a joint resolution rather than treaty or conquest, did not initially intend to grant statehood, and did not need the entire territory for military purposes.  This post notes some historical approaches that justify territorial acquisitions ab initio in similar circumstances despite those objections.

When the First Congress sought to acquire territories owned by states, one of its justifications was to “establish[] the harmony of the United States” (as recited in a 1790 deed).  The United States claimed title to Oregon by right of Lewis and Clark’s discovery and John Jacob Astor’s establishment of private fur trading posts there, without intending to grant statehood (see here at 422–23).  In 1825 Senator Burton urged Congress to continue to assert its claim to Oregon to prevent monarchical Britain from expanding its North American presence there.   Inherent sovereign powers justify those approaches to acquiring territories. 

Other approaches suggest enumerated powers that might apply.  One is the commerce clause.  Congress’s ostensible reason  for funding Lewis and Clark’s expedition was to “extend[] the external commerce of the United States”—although President Jefferson’s secretly expressed goal was to map favorable agricultural areas in Native American lands and encourage Native Americans to settle in agricultural communities and sell their forests to the United States.  One might argue that the acquisition of Oregon by discovery was incidental to the congressional statute rather than grounded in an inherent sovereign power.  America’s reliance on Astor’s private fur trading posts to support its title would cut against that argument, however.

A second potential enumerated power is to provide for an army and navy, as Professor Ramsey suggests but rejects.  Senator Benton supported asserting title to Oregon in its entirety for use in a number of alternative ways other than statehood, including as “a military post and naval station.”  A third is the public debt clause.  One of the First Congress’s justifications for acquiring territories from states was to be able to “do[] ample justice to the public creditors.”  Any territory can be used to generate revenue to service the public debt.  Reliance on an enumerated power might not, however, justify the specific annexation of Hawaii by joint resolution rather than statute or treaty (although the resolution may have been a treaty by another name, as Andrew Hyman suggests).

In closing, Professor Ramsey asserts that the Tenth Amendment gives any inherent powers from international law to “the sovereign people” rather than the federal government.  But early practice contradicts that assertion.  The First Congress, not the people generally, sought to acquire territories from the original states.  And Oregon belonged to the United States, not to the American people generally nor to the states from which Lewis, Clark, or Astor hailed.  The Constitution created a sovereign nation with all the powers that international law grants a sovereign.  The people ceded those powers to the federal government by ratifying the Constitution and creating the United States.  The states ceased to be sovereigns in the international sphere, and the Constitution does not recognize any concept of national action by “the sovereign people.”  Denying the United States inherent sovereign rights under international law, like territorial acquisition by discovery, would deny our nation those rights entirely, which would be an unreasonable reading of the Constitution.

08/16/2021

Emile Katz: A Historical Analysis of the Contempt Power as Understood by the Founders
Michael Ramsey

Emile J. Katz (University of California, Berkeley - School of Law, JD '21) has posted The 'Judicial Power' and Contempt of Court: A Historical Analysis of the Contempt Power as Understood by the Founders (California Law Review, forthcoming) (87 pages) on SSRN.  Here is the abstract:

This Note focuses on the power of the federal judiciary to hold litigants in contempt of court. In particular, this Note analyzes whether the contempt power of the federal judiciary stems from an inherent grant of power in the Constitution or whether it is derived purely from acts of Congress. The extent to which Congress can limit judges’ power to punish contempt depends on whether judges have an inherent power to punish contempt. Because judges have used the power to punish in ways that abridge individual liberties and civil rights, it is imperative that Congress be aware of whether it can constitutionally limit judicial conduct vis-a-vis contempt. Part I of this Note outlines what judges and scholars have written about an inherent judicial contempt power. Part II of this Note explores whether the drafters and ratifiers of the Constitution intended to vest the judiciary with an inherent contempt power. In doing so, this Note examines the most important sources from the Founding Era. Those sources include texts from pre-revolutionary British legal practice, American colonial practice, revolutionary state practice, the ratification debates, and the actions of the Founders immediately following the ratification of the Constitution. By tracing the history of the contempt power from British practice all the way to constitutional ratification, this Note provides a comprehensive overview of how the thoughts of the framers changed over time and what the framers finally intended with regard to contempt when they drafted the Constitution. This Note argues that the framers did not intend to create an inherent judicial contempt power and that judges’ contempt power is therefore under Congress’s control.

Impressive.  I've long been suspicious of the courts' broad claims of contempt power. (Also, I'm even more suspicious of Congress' broad claims of contempt power.)