The Originalism Blog

Aditya Bamzai: Sanctions and the Emergency ConstitutionMichael Ramsey

Aditya Bamzai (University of Virginia School of Law) has posted Sanctions and the Emergency Constitution (172 University of Pennsylvania Law Review 1917 (2024)) (38 pages) on SSRN.  Here is the abstract:

The Trading with the Enemy Act of 1917—or the “TWEA”—is the precursor to the modern statutory sanctions framework of the United States. Though significantly amended since its passage—and even replaced in part by a successor statute, the International Emergency Economic Powers Act of 1977—the TWEA’s origins are important both to an understanding of modern sanctions law and to an understanding of the development of American governance. In enacting the TWEA, Congress sought to codify aspects of preexisting prize and trading-with-the-enemy cases. This Article explores the cases that formed the backdrop against which Congress enacted the TWEA, as well as relevant aspects of the TWEA’s drafting history. It examines the cases that emerged in the aftermath of the TWEA’s passage, especially those that confronted Congress’s later decision to make TWEA applicable in times of “national emergency,” as well as in times of “war.”

Gerard Magliocca: Women's Suffrage and the Reconstruction AmendmentsMichael Ramsey

Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted "Right In Theory, Wrong In Practice": Women's Suffrage And The Reconstruction Amendments (60 pages) on SSRN.  Here is the abstract:

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge of Iowa dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. 

The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon. They pioneered the belief that the Fourteenth Amendment gave women equal citizenship and that legal distinctions based on sex can be irrational. They made the first textual and structural arguments for the right to vote. The Loughridge Dissent also defended an interpretive stance that rejected original meaning and tradition in favor of a panoramic construction of the Constitution as "right in theory but wrong in practice." Lastly, recognizing the creative work of the suffragists and their fellow travelers is a vital first step toward filling the between constitutional practice, which cares about women's rights, and constitutional theory, which generally does not. 

The Woodhull Petition and the Loughridge Dissent also advanced textual claims that challenge modern assumptions. For instance, they said that the Fifteenth Amendment affirmatively recognized a "right of citizens of the United States to vote" instead of merely proscribing a certain kind of voting discrimination. Loughridge relied on the Constitution's Preamble as authority for the proposition that women's suffrage could not be denied, instead of treating the "We the People" paragraph as purely ceremonial. Finally, he argued that the text is sometimes best read descriptively or agnostically rather than prescriptively; an approach which could lead to a fresh of view of constitutional issues such as voting rights for ex-felons and the death penalty.

Jed Shugerman: The Misuse of Ratification-Era Documents by Unitary Executive TheoristsMichael Ramsey

Jed H. Shugerman (Boston University - School of Law) has posted The Misuse of Ratification-Era Documents by Unitary Executive Theorists (forthcoming, Michigan J. L. Reform (2025)) (25 pages) on SSRN.  Here is the abstract:

The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis, a methodological crisis, and perhaps an academic crisis. This symposium essay (on "The Future of Agency Independence") suggests that, given an ostensibly originalist Supreme Court,  the future depends on getting the past right. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the president had a general power of removal -- even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed. 

Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory, claim to have identified four passages from the Ratification debates. Unfortunately, none of these four passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. They have not only misinterpreted historical records from the 1780s and 1790s, but also how they have repeatedly misinterpreted other scholars’ work in the 2020s.

Taking these examples together with the many errors and misinterpretations identified by historians and legal scholars over the past few years, there are at least three big-picture questions:

1. If these sources were the only examples that the unitary executive theorists have identified from the Ratification debates, is it reasonable to conclude that the Ratification debates offered no support for the unitary executive theory of presidential removal, while the Federalist Papers plus Anti-Federalist silence are overwhelming evidence against it?

2. If so, is the originalist case for the unitary executive theory dead?

3. If “originalism” is a serious academic enterprise, are there consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?

(Via Dan Ernst at Legal History Blog.)

I leave it to Professors Prakash and Bamzai to respond on the specifics, though on a quick look at the essay this appears to be a commonplace dispute over the implications of somewhat ambiguous text that forms a fairly small part of a larger historical debate, and thus perhaps does not justify the extravagant rhetoric in the abstract and throughout the essay. 

I have two quick general thoughts:

(1) I follow Justice Scalia in Morrison v. Olson in thinking that the case for presidential removal power arises directly from the Constitution's text vesting the President with "[t]he executive Power."  The history might undermine this reading, if the history is strong enough.  But I think the burden is on those who say that the President's unqualified possession of the executive power does not include the power to control subordinates who exercise the executive power.

(2) I was struck by this comment in Professor Shugerman's paper:

No one disputes the existence of “some” offices held at [the President's] pleasure, but they [Bamzai and Prakash] are arguing for a more universal and absolute interpretation of Article II.

I'm not sure it's true that "no one" disputes a limited version of presidential removal power. But leaving that aside, I take this comment to mean that at least Professor Shugerman doesn't dispute it.  So what is the basis of this limited presidential removal power?  And once it is conceded, we are really just arguing about the scope of removal power, not (as a good bit of the commentary on the anti-removal side seems to suggest) the existence of removal power.

Jud Campbell: Originalism's Two Tracks [Updated]Michael Ramsey

Jud Campbell (Stanford Law School) has posted Originalism's Two Tracks (104 B.U. L. Rev. 1435 (2024)) (16 pages) on SSRN.  Here is the abstract:

Originalists constantly invoke history. But they are divided over how to approach the past. Some originalists—let's call them "track one" originalists—view the past in a backward-looking way, using modern criteria to identify earlier constitutional content. Other originalists—let's call them "track two" originalists—try to understand the past on its own terms, using historical criteria to identify earlier constitutional content. Although underappreciated, this division has significant implications for originalist theory and practice. It bears, for instance, on whether originalists should resuscitate long-forgotten features of our constitutional past, such as the embrace of general fundamental rights that were grounded in natural or customary law rather than in constitutional text. By exposing foundational paradigm shifts in American constitutionalism, Jonathan Gienapp's pathbreaking book, Against Constitutional Originalism, underscores the importance of distinguishing between "track one" and "track two" originalism. And how originalists respond to Gienapp's challenge, this Essay argues, should largely depend on which of these two tracks they choose.

As the saying goes, there are two kinds of people, those who believe in binary choices, and those who don't.

UPDATE: At Legal Theory Blog, Larry Solum says "Highly recommended. Download it while it's hot."  But he also has two paragraphs of critical commentary, which are not easily excerpted and are worth a full read. I'm not sure what I think about the first paragraph but I entirely agree with the second (though some originalists I think would not).

Michael Dorf on Henry Monaghan on OriginalismMichael Ramsey

At  Verdict, Michael Dorf: The Lasting Legacy of Henry Monaghan.  From the introduction: 

Columbia Law Professor Henry P. Monaghan died last week at the age of 90. Although not widely known outside the legal academy, Monaghan was a towering figure within it. ...

In this column, I shall focus on two of Monaghan’s most influential articles with the aim of showing how his work remains at the center of key constitutional controversies. Although I disagree with important elements of much of what Monaghan wrote, I recognize the power of his scholarship. The Supreme Court could (and almost certainly will) do worse than to learn from Monaghan’s work.

From the discussion of the first article:

In various writings and speeches, the late Justice Antonin Scalia defended his preferred mode of constitutional interpretation—originalism—against the charge that it could not account for the longstanding and indispensable practice of stare decisis, which gives effect to precedents even if they are wrongly decided, unless there is a truly compelling reason to overrule them. Scalia conceded that giving precedential effect to nonoriginalist or otherwise wrong (by his lights) decisions was inconsistent with originalism, but, he frequently said, honoring precedent is a departure from any theory of constitutional interpretation.

Yet, on close examination, that answer won’t wash, for reasons that Monaghan set out in a powerful article in the 1988 Columbia Law Review: Stare Decisis and Constitutional Adjudication. Monaghan’s starting point was not far from Scalia’s. He too equated the Constitution’s contemporary meaning with its original meaning. But unlike Scalia, Monaghan recognized that the compelling grounds for giving effect even to wrongly decided precedents could not be so easily cabined. In his conclusion, he suggested that the same sorts of considerations that lead to adherence to decisions that misconstrued or disregarded the constitutional text’s original meaning will sometimes appropriately lead to new decisions that depart from the original understanding. To justify stare decisis is thus to substantially undermine originalism.

And on the second: 

Next, consider Monaghan’s 1981 article in the N.Y.U. Law Review: Our Perfect Constitution. The title was intentionally ironic. Monaghan did not believe the Constitution was perfect. Far from it. His chief contention was that many of his contemporaries, especially in the academy, proceeded on the assumption that it was.

But wait. Did anyone really think the Constitution perfect? After all, the Senate and the Electoral College over-represent rural states. The Constitution exhibits xenophobia in limiting the presidency to natural born citizens. By contrast with many national constitutions of more recent vintage, it does not contain economic, social, and cultural rights, such as housing and education. Surely no serious person believes the Constitution perfect.

Yet Monaghan’s argument was not directed at a straw man. He acknowledged that the targets of his critique did not believe the Constitution to be literally perfect. He used the metaphor of a perfect constitution to describe the following proposition that, he thought, too many of the academic commentators of the era believed: “properly construed, the constitution guarantees against the political order most equality and autonomy values which the commentators think a twentieth century Western liberal democratic government ought to guarantee to its citizens.”

More than anything, Our Perfect Constitution was a critique of the enthusiasm for finding rights like contraception and abortion in the Fourteenth Amendment’s Due Process Clause. Monaghan thought that the scholars he was critiquing must have at least tacitly endorsed the perfection proposition because, construed in accordance with original intent (which he regarded as the touchstone), the Constitution would not yield the rights they found in it.

I agree that Professor Monaghan was an enormously important scholar for the originalism movement, both as a proponent and a critic.  He is sometimes left out of the early intellectual history of modern originalism, or at least overshadowed by Robert Bork, Raoul Berger and Justice Scalia.  But as Professor Dorf notes, in particular Our Perfect Constitution was a sharp indictment of living constitutionalism that was bold and unusual for its time.  It was a key text, along with the writings of Bork, Berger and Scalia, in the early originalist movement of the 1980s.  But despite that article Monaghan was never as full-throated an originalist as Bork, Berger and Scalia -- which I think results in his influence being less fully appreciated.

Paul Gowder on Birthright CitizenshipMichael Ramsey

At the UnPopulist, Paul Gowder (Northwestern): The Bogus Case Against Birthright Citizenship for the Children of Undocumented Immigrants.  From the introduction: 

As Inauguration Day approaches, President-elect Donald Trump’s promise of mass deportation at an unprecedented scale and the infighting within his own movement over H-1B visas have understandably taken center stage. But it’s also worth focusing on what is perhaps his most brazenly unconstitutional proposal of all: ending birthright citizenship, the legal principle that confers automatic citizenship to anyone born on U.S. soil. As far as Trump and the immigration hawks he is bringing into the administration—like his notorious former immigration czar and incoming Homeland Security Advisor Stephen Miller—are concerned, birthright citizenship should not be extended to U.S.-born children of undocumented immigrants.

“We have to end it,” Trump told Meet the Press’ Kristen Welker last month. “We’re the only country that has it,” he erroneously added (dozens of countries—including Canada, Mexico, and Brazil—also recognize birthright citizenship). This wasn’t one of Trump’s extemporaneous flights of rhetorical fancy—in May of 2023, Trump promised to issue an executive order on Day One to end what he called “automatic citizenship for children of illegal aliens.” When Welker asked him point blank if that’s still his plan, Trump responded, “Yeah. Absolutely.”

But if the president-elect believes he will be able to unilaterally undo this policy by executive fiat, he is sorely mistaken: birthright citizenship is clearly established in the U.S. Constitution, which means a presidential order cannot abolish it. ...

There's nothing much new here but it's a good summary of the textualist/originalist case for birthright citizenship and a useful consideration of the leading counterarguments.  (My longer assessment is here.)

The key, though, is that the argument mostly depends on adopting textualist originalism as the guiding approach to constitutional interpretation (and recognizing that textualist originalism does produce determinate results in contested cases).  Otherwise, as co-blogger Mike Rappaport has argued, the nonoriginalist case against birthright citizenship for children of undocumented immigrants is fairly strong.

Michael McConnell on Pending Religious Liberty CasesMichael Ramsey

At Volokh Conspiracy, Michael McConnell (guest blogging) on the Supreme Court's Religion Docket: 

The Supreme Court has a unique opportunity this Term (or next) to hear four cases with major implications for religious liberty. One case is already on the merits docket—Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission, which involves a challenge to Wisconsin's determination that Catholic Charities is not sufficiently religious to qualify for an exemption from the state's unemployment program.

This Friday, the Court will consider adding three more:

• Apache Stronghold v. United States—in which Native Americans are challenging the federal government's plan to destroy a sacred site by turning it into a copper mine.
• Mahmoud v. Taylor—in which Muslim parents are challenging a school district's refusal to notify parents or let children opt out when teachers present controversial readings on sex and gender identity.
• Roman Catholic Diocese of Albany v. Harris—in which religious groups are challenging New York's mandate to cover abortions in their health insurance plans.

(Full disclosure: I participated in amicus briefs in all four cases.)

While these cases may seem unrelated, they converge on two pressing issues that have divided lower courts, distorted the law, and harmed religious liberty. The Court should hear all four cases. Here's why ...

Originalism-Oriented Books of 2024 [Updated]Michael Ramsey

To begin an originalist-oriented review of 2024, here are new books of originalism interest published in 2024, as highlighted on the Originalism Blog:

W.B. Allen (ed.), Montesquieu's 'The Spirit of the Laws': A Critical Edition (Anthem Press)

Jack Balkin, Memory and Authority - The Uses of History in Constitutional Interpretation (Yale U. Press)

Randy Barnett, A Life for Liberty - The Making of an American Originalist (Encounter Books)

Curtis Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard U. Press)

Steven Calabresi & Gary Lawson: The Meese Revolution - The Making of a Constitutional Moment (Encounter Books)

Jonathan Gienapp, Against Constitutional Originalism - A Historical Critique (Yale U. Press)

Dennis Hale & Marc Landy, Keeping the Republic - A Defense of American Constitutionalism (U. Press of Kansas)

Alison LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale U. Press)

William Leuchtenburg, Patriot Presidents - From George Washington to John Quincy Adams (Oxford U. Press)

Neil Siegel, The Collective-Action Constitution (Oxford U. Press)

No doubt I have forgotten or overlooked some, so please let me know and I will update accordingly.

UPDATE:  And of course I forgot a big one -- updated to include Jonathan Gienapp's Against Constitutional Originalism - A Historical Critique.  Thanks to Michael L. Smith for the correction.

David Sloss: The Next Revolution in Constitutional LawMichael Ramsey

David L. Sloss (Santa Clara University School of Law) has posted People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, forthcoming 2025) (10 pages) on SSRN.  Here is the abstract:

Included here are excerpts from my forthcoming book. The book presents a normative theory of judicial review that builds on John Hart Ely’s theory. Current constitutional doctrine is at odds with core constitutional values. We divide Con Law into rights issues and structural issues. Structural Con Law focuses on the division of power among government actors. That framing omits a key structural feature of the Constitution: the division of power between We the People and our government. Constitutional rights doctrine focuses on negative, individual rights. Accordingly, constitutional doctrine ignores one crucial right: the affirmative, collective right of We the People to exercise control over our government.

My theory divides constitutional issues into three baskets: rights, structure, and democratic self-government. The theory relies on a distinction between strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override.

Based on the distinction among three types of judicial review, and the division of constitutional issues into three baskets, the book defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. For example, courts should apply strong judicial review to ban partisan gerrymandering. The goal should be to correct defects in the electoral process so that elected legislators represent the entire political community, rather than serving factional interests.

Second, courts should apply weak judicial review for most individual rights claims. Courts can protect individual rights by applying federal statutes and international human rights treaties—instead of applying the Constitution—as the primary source of protection for individual rights. In this way, courts can provide robust protection for rights while still preserving an option for legislative override if Congress disagrees with the Court’s resolution of a particular issue. The option of legislative override is essential to ensure that our elected representatives—not unelected, unaccountable judges—have the last word on contested rights issues.

Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. The Court’s modern federalism jurisprudence does not actually promote the ostensible goal of protecting state autonomy. Instead, the Court’s federalism doctrine transfers federal lawmaking authority from Congress to the Supreme Court, in violation of separation-of-powers principles. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment, as exemplified by McDonald and Bruen.

Clearly, the current Supreme Court will not be receptive to these arguments. The final chapter presents a roadmap for revolutionary change in which We the People mobilize to transform our government, and Congress and the Supreme Court collaborate to restore the vitality of democratic self-government.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  A much needed updating of Ely's classic work."

Putting an End to Lame Duck ActionsMike Rappaport

The Biden Administration has been engaged in lame duck actions that are problematic because they would not have been done prior to the election.  They are made worse by the fact that the President appears to have serious dementia, raising the question as to who is really taking these actions. 

For many years now, I have criticized such actions and have argued for reforms.  Here are some posts on the subject: 

Lame Duck Lawmaking and Rulemaking (2016)

Let's Pass a Constitutional Amendment Prohibiting Lameduck Pardons (2017)

The Language of the Lame Duck Pardon Amendment (2017)

From the first of these posts: 

The sad fact about this matter is that it could be reformed.  The best way to reform Congress’s lame duck actions is to pass a constitutional amendment requiring a 2/3 supermajority of each house to take an action in the period between the election and the new Congress.  In this way, Congress could still take important actions that are supported by a consensus.  Moreover, the Congress could still take all of the preliminary steps to a final decision, such as holding hearings, which would allow actions that require speed to be taken up for a final vote by the new Congress.  Assuming that a constitutional amendment were not enacted, each house of Congress could pass a rule that required the supermajority (although that rule could be repealed by a simple majority).

The lame duck agency lawmaking would even be easier to reform.  Congress could simply pass a law providing that all rules that are promulgated during the lame duck period should not take effect until a certain period of time after the new President assumes office.  In this way, the new administration would have time to eliminate the new regulation without having to go through the notice and comment process.

Elias Neibart: Teleology as an Originalist ToolMichael Ramsey

Recently published, in the New York University Journal of Law and Liberty (vol. 18, 2024), Elias Neibart: Teleology as an Originalist Tool.  Here is the abstract:

To understand what something is, we have to first understand its ultimate end.  That’s a simple principle.  And it’s one we intuitively accept in our everyday life.  When we’re building a piece of furniture, we don’t just read the instructions—we first peek at the box to figure out how the piece of furniture should look when it’s completed.  We do that because we know that by looking at the ultimate end of our task, we will better understand the discrete instructions and steps before us.  This practice—of identifying something’s ends to better understand its essence—is not new. And it has a name: teleology.

Teleology may offer something to those trying to uncover the original meaning of the United States Constitution.  Just as seeing the completed piece of furniture helps us understand the building instructions, pinpointing the ends of the Constitution might help us interpret its sparse text.

So, this Article makes a modest argument: Teleology has played and, perhaps, could still play a role in our interpretation of the Constitution.  In other words, historically, when it came to the Constitution, teleology was in the mix of interpretive tools.  And, today, it could similarly factor in as one way—of many—to help us interpret the Constitution.  This Article, therefore, makes two narrow arguments, one historical and the other theoretical.

As a historical matter, teleology has roots in American constitutional history.  When the framers were drafting the Constitution and later interpreting it, they invoked teleology.  In fact, its use has persisted, being employed just a few terms ago at the Supreme Court. 

As a theoretical matter, teleology might still be able to serve as an originalist tool.  Indeed, its use is consistent with originalist theory.  For an Original Methods Originalist, teleology can be understood as an original interpretive rule that was employed by the ratifying public as they read the Constitution.  For Public Meaning Originalists, teleology might just constitute another type of contextual enrichment.  Using teleology is also consistent with how we communicate in everyday life; we often consider the original ends of a thing when trying to understand its essence.  At bottom, then, identifying the Constitution’s original teloi may help interpreters better enter the minds of the ratifying public and understand the text just as they did.  

In these respects, teleology could advance—not undermine—the goals of modern-day originalism.  At first glance, one might think that originalists would or should reject its invocation.  Teleology, like purpose, might strike an originalist as too indeterminate.  But originalists are committed, by their own principles, to think about teleology, too.  Doing so may help interpreters better honor the original meaning of the Constitution.

Alli Orr Larsen: History's Identity CrisisMichael Ramsey

Alli Orr Larsen (William & Mary Law School) has posted History's Identity Crisis (78 SMU L. Rev., forthcoming 2025) (33  pages) on SSRN.  Here is the abstract:

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges.  This article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past.  Is it traditional legal reasoning – weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about – conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of fact-finding – generalized and closer to policy – such that we want appellate judges to make the calls after studying in the law library or digesting dozens of amicus briefs?  This matters because each alternative identity carries significant practical litigation consequences, and – because of those consequences -- the players are motivated to manipulate the different labels in strategic ways.
 
I call for some nuance and “bottom line thinking:” if what really matters is who makes the decision and under what conditions, then we should ask that question directly and specifically rather than getting hung up in definitions and labels. This article assumes a good-faith judge confronting a history-based test in the Second Amendment context, and then offers a way to help: by detangling this identity crisis, exploring the implications of each alternative identity, and then offering preliminary thoughts on a possible path forward.

The Twentieth Amendment and the Electoral Vote Count [Corrected]Michael Ramsey

In The Hill, Evan A. Davis & David M. Schulte suggest a way Democrats could derail the counting of the electoral votes on January 6: Congress has the power to block Trump from taking office, but lawmakers must act now.  From the core of the argument (after first asserting that President-elect Trump is disqualified from the presidency by Section 3 of the Fourteenth Amendment:

…[S]pecific legislation designed for this situation already exists. The Electoral Count Act was first enacted in 1887 and later amended and restated in 2022. That statute provides a detailed mechanism for resolving disputes as to the validity of Electoral College votes.   

The act specifies two grounds for objection to an electoral vote: If the electors from a state were not lawfully certified or if the vote of one or more electors was not “regularly given.” A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words “not regularly given.” Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years’ residency in the United States.  

To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.

I think, however, that the authors are wrong to say that an electoral vote for a disqualified person is not “regularly given,” and their saying (without citation) that it’s “plainly in accordance with the normal use of words” doesn’t make it so.  A vote not “regularly given” more “plainly” refers to one given illegally (e.g., contrary to state law, or as a result of bribery), involuntarily (under duress or mistakenly), or by an unauthorized person.

In contrast, a vote lawfully and deliberately given by a duly appointed elector to a person not (currently) eligible for the presidency is “regularly given” – that is, given in accordance with applicable laws and procedures.  The Constitution does not prohibit a person who is ineligible for the presidency from being a candidate – perhaps, for example, in the hopes that the ineligibility will be lifted.  Nor does the Constitution prohibit an elector from voting for a person who is ineligible for the presidency (again, with the thought perhaps that the ineligibility would be lifted).  The Constitution only intervenes if a person who is ineligible attempts to take office as President.

Section 3 of the Fourteenth Amendment shows how such a vote might be regularly cast.  Section 3 allows Congress (by a two-thirds vote) to lift a disqualification imposed by the Section for engaging in insurrection. (And historically Congress has exercised this power.)  So assuming a person is unquestionably disqualified by Section 3: it would still be entirely appropriate for that person to seek the presidency, for electors to vote for that person, and for Congress – if that person won a majority of electoral votes – to lift the Section 3 disqualification.  There is no constitutional requirement that the disqualification be lifted before the electoral votes are cast, rather than after.

Of course, in this situation Congress might not lift the disqualification, in which case the disqualified candidate would be constitutionally barred from taking office.  But that does not mean votes for that person were not “regularly given” – only that they subsequently turned out to be ineffective.

The Twentieth Amendment – which has been overlooked to some extent in the discussion – confirms this analysis and provides a remedy if an ineligible person is elected.  It states:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified… (emphasis added)

Thus the Amendment “plainly” (if I may use that term) contemplates that an ineligible person can become President-elect, and that that person becomes President if the ineligibility is removed.  And that being so, there’s nothing inappropriate (or “not regular”) about voting for an ineligible person.  At least in the case of a Section 3 ineligibility, such a vote could be made in the expectation, or at least the hope, that Congress would lift the ineligibility.

I also think that Section (e)(2) of the Electoral Count Act, which the authors rely on to make Kamala Harris President after a challenge to the electoral votes, is unconstitutional.  [Ed.: But see correction below.] As they describe it:

To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president. 

This is indeed what Section (e)(2) indicates, but it’s flatly contrary to the Twelfth Amendment, which says:

The person having the greatest number of [electoral] votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.  (emphasis added)

Thus, if an elector is appointed but that elector’s vote is not “regularly given,” this does not reduce the number of votes needed to be elected.  It is a majority of the electors appointed not (as the Electoral Count Act says) a majority of the votes given, that the Twelfth Amendment requires for election.  And Congress cannot provide for a lesser number of votes than the Constitution requires.

In sum, the authors are wrong on two counts.  An electoral vote for an ineligible candidate is “regularly” (though perhaps futilely) given under the Twentieth Amendment, and so cannot be challenged under Section (d)(2)(B) of the Electoral Count Act.  And even if Congress (wrongfully) rejected all of President-elect Trump’s votes on this ground, the result would be that no candidate received a majority of the “whole number of electors appointed” – which under the Twelfth Amendment results in the House of Representatives choosing the President.

CORRECTION:  As to Section (e)(2), Derek Muller (Notre Dame) writes:

There's an error in that Hill piece, which you unfortunately rely upon. Here's 15(e)(2):

 

If the number of electors lawfully appointed by any State pursuant to a certificate of ascertainment of appointment of electors that is issued under section 5 is fewer than the number of electors to which the State is entitled under section 3, or if an objection the grounds for which are described in subsection (d)(2)(B)(ii)(I) has been sustained, the total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom the objection was sustained.  

 

And here's 15(d)(2)(B)(ii):

 

(ii) Grounds for objections.—The only grounds for objections shall be as follows:

 

(I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

 

 (II) The vote of one or more electors has not been regularly given.

 

As you can see, 15(e)(2) does contemplate reducing the denominator required for a majority. But it expressly provides that it is only in those cases (a) where a state has failed to appoint its full slate of electors (e.g., New York in 1789, where it appointed zero), or (b) where the objection is under (I), not "lawfully certified." For an objection of not "regularly given," it is (II), and would not include a reduction in the denominator. The writers of this Hill piece (no particular experts themselves) were quite sloppy in interpreting the new, carefully crafted ECRA.

 

Professor Muller is right, of course.  That's what I get for relying on The Hill instead of studying the statute closely myself. Apologies. (In particular, apologies to drafters of the ECRA.)

 

So as actually written, Section (e)(2) is consistent with the Twelfth Amendment, because it only reduces the number of electoral votes needed for election when there is a defect in the appointment of an elector, not when there is a defect in a vote by a duly appointed elector.  My conclusion should have been:  If Section (e)(2) said what the authors of The Hill's essay say it said, it would be unconstitutional.

Orin Kerr on Emergency EntryMichael Ramsey

At Volokh Conspiracy, Orin Kerr: New Cert Petition on Emergency Entry: What Was the Common Law Rule? From the introduction:

A cert petition was recently filed at the Supreme Court in Case v. Montana on the Fourth Amendment standards for entry into a home to help people in an emergency.  The question presented:

Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.

The petition does not address the original public meaning of the Fourth Amendment, or the common law rules on this issue. But this is one area where there are common law authorities on the question, and they seem pretty home-protective.  Given the Supreme Court's increased interest in originalism, I thought I might blog about what the established rule was for this issue at the time of the adoption of the Fourth Amendment, which presumably would inform what would have been understood as an unreasonable search and seizure.

And from the conclusion:

... [C]ombining the Hawkins rule from his Pleas of the Crown with the rule from Hale's Historia Placitorum Coronæ, I take the common law authorities to suggest some significant certainty about whether the "affray" is happening inside the house before the constable can enter.  Hawkins says the constable has to hear or see the big fight.  Hale says it needs to be "likely" that there will be manslaughter or bloodshed, something that to me sounds more suggestive of a probable cause standard.  Hale's mention of noise coning from the house seems consistent with a high certainty, too. The constable would hear the noise himself, being sure of it.

I'd need to look in a lot more detail to be sure of this. But at least on a quick look, it appears that there's significant common law support for the idea that the government needs a significant likelihood of harm occurring before entering the home.

Final Version: An Originalist Defense of the Major Questions DoctrineMichael Ramsey

My article "An Originalist Defense of the Major Questions Doctrine" is now published in the Administrative Law Review (76 Admin. L. Rev. 819 (2024), available from their website here).  Here is the abstract: 

According to the U.S. Supreme Court, the major questions doctrine requires “clear congressional authorization” for agencies to exercise delegated authority over “major policy decisions.” But where can the Court find constitutional authority to announce such a rule? That question divides originalist-oriented scholars and judges. Some have criticized the doctrine sharply as departing from a court’s obligation to apply a law’s textual meaning. Others have defended it as arising from congressional intent, ordinary linguistic conventions, or a constitutionally based rule against delegation of legislative power.

This Article undertakes a broader originalist defense. First, it describes the major questions doctrine as a substantive canon—that is, an interpretive rule based not on linguistic conventions but on an extra-textual value of protecting the separation of powers. Second, it assumes that the major questions doctrine need not be derived from a direct constitutional command against delegation. It then argues instead that the major questions doctrine can be seen as part of a broader power of courts to read ambiguous federal laws narrowly to avoid erroneously undermining core founding-era structural assumptions. The article explores early post-ratification judicial practice in support. It concludes that the early judicial practice indicates a discretionary authority, uncontested at the time, to underenforce ambiguous laws in this manner. It thus links early interpretive canons such as the presumption against violations of international law and the presumption against civil retroactivity, with the modern Court’s longstanding presumptions protecting federalism and the present Court’s recent invocation of the major questions doctrine.

In the same issue of the Administrative Law Review, and something of a counterpoint: Kevin O. Leske (Dayton), Major Questions Hypocrisy (76 Admin. L. Rev. 771 (2024)).  Here is the abstract:

If asked to name some of the core beliefs of the current Supreme Court Justices, one would undoubtedly identify their allegiance to maintaining the separation of powers and to interpretative methods such as textualism, as well as taking an anti-activist approach in their roles as decisionmakers. Yet several of these bedrock principles, especially textualism, have been trumped in several notable recent cases when the Court has invoked the newly-metamorphosized “major questions” doctrine.

The major questions doctrine, as it stands today, requires courts to scrutinize agency action where the agency is attempting to exercise powers of deep economic or political significance or to exercise powers in a way that would effectuate an enormous and transformative expansion of the agency’s regulatory authority. Only if the court finds that Congress clearly authorized such power can the court sustain the action.

But this approach is not the way the doctrine had previously functioned in our administrative state. In my 2016 article on the major questions doctrine, I highlighted a significant expansion in how the doctrine had recently been applied in Supreme Court cases at that time. As originally conceived in two early cases, the Court raised the doctrine as part of its Chevron Step-One analysis to determine whether the statutory language in question was ambiguous. But upon resurrecting the doctrine in 2014 and 2015, the Court invoked the doctrine in other stages of the Chevron analysis, including to justify that the Chevron analysis should not apply at all.

Now, in a series of very recent cases, the doctrine has transformed into a much more significant —and perilous —doctrine with respect to how it functions in both our administrative state and in our democracy. The doctrine can now be better regarded as a canon of construction employed to strike down agency action —even in cases where there is statutory textual support for agency’s assertion of power and where Congress’s underlying grant of power to the agency does not effectuate an unconstitutional delegation of legislative power.

This presumption against agency power (and the requirement that there be a specific congressional grant) effectively diminishes legislative and executive power. Moreover, it represents a dramatic type of judicial activism that fails to respect accountability principles in our democratic system and the separation of powers. With this new doctrine now firmly in place, this Article analyzes how the major questions doctrine is incompatible with the Court’s fidelity to textualism. The Article concludes that the Court’s application of the doctrine also manifests a hypocrisy because although the Court purports to be protecting accountability principles and Congress’s power (and more broadly the separation of powers) when it invokes the doctrine, the Court is actually subverting these principles. 

My article doesn't defend the doctrine on the basis of textualism, but it does defend the doctrine from the perspective of separation of powers.

Todd Zywicki: The Conservative Version of The Rule of LawMichael Ramsey

Todd J. Zywicki (George Mason University - Antonin Scalia Law School) has posted The Conservative Version of The Rule of Law (37 pages) on SSRN.  Here is the abstract:

Establishing the rule of law requires two elements. First, an articulation of the concept that there is a higher law above the government from which the government derives its legitimate authority but which also constrains the exercise of that power. Second, there must be an effective institutional structure for actually enforcing the rule of law's limits on the government in practice.

Three theories have been articulated that can meet these challenges of the rule of law: natural law, social contract theory, and a "conservative" version of the rule of law. This essay focuses on the last. Under the conservative version of the rule of law, both the legitimate authority of the government and constraints upon it are derived from history, tradition, and the particular character of a political community. Rather than the concept of the rule of law emerging as a pre-political concept which is then implemented in practice, under the conservative version of the rule of law, limits are first imposed on the government in practice and only later theorized into principles of constitutionalism. The logic of the conservative version of the rule of law is illustrated through a focus on the ideas of three thinkers: David Hume, Edmund Burke, and Russell Kirk.

Jonathan Gienapp: History, Law, and Constitutional RuptureMichael Ramsey

Jonathan Gienapp (Stanford University - History; Stanford Law School) has posted History, Law, and Constitutional Rupture (B.U. L. Rev., 2024) (32 pages) on SSRN.  Here is the abstract:

The principal problem of U.S. constitutional interpretation centers on the passage of time. As time passes, things change. That is especially true of constitutionalism and law, where older forms must be applied to novel and often unforeseen circumstances, something the American example amply demonstrates. The U.S. Constitution was made a long time ago and must govern a world markedly different from the one for which it was made. What we should do with older constitutional forms (in the case of the U.S., quite old) in a much-changed world poses a challenge that any theory of constitutional interpretation must address. Call this the problem of social drift. The problem of constitutional time runs deeper than just this, however. A more fundamental, and often less perceptible, form of change can sever constitutional present from past. In the first instance, a gap widens between constitutional form and the social world that constitution is meant to regulate and channel; in the second instance, the change takes place within the domain of constitutionalism itself. As time passes, how people think about constitutionalism and its attendant subjects—law, government, power, liberty, rights—can also transform. While many recognize how the interpretation of a constitution might change as society itself changes, it is harder to see how the very idea of a constitution itself can also imperceptibly take on new shape and meaning through the changed habits, assumptions, and legal consciousness of those interpreting it. This less recognized form of change, wrought by the passage of time, defines U.S. constitutionalism every bit as much as the first.

Despite its central importance, the challenge that historical rupture poses for modern constitutional interpretation is still far too neglected. After all these years of arguing over the appropriate use of history in constitutional interpretation, the most important problem raised by the endeavor continues to be downplayed and ignored. That neglect has become especially glaring of late, as the current Supreme Court has placed greater legal weight on our constitutional past than arguably ever before. It is high time to confront the problem of historical rupture in U.S. constitutional interpretation. Anyone who appeals to history in U.S. constitutional argument—most especially originalists, but not just them—must acknowledge and explain what is to be done about the gulf separating us from earlier forms of constitutional thinking. If we are to obey the past, then we need to surmount the chasm separating us from it. We need to recognize that our fundamental law was created by people equipped with a different legal consciousness. We need to do the work of historicizing earlier forms of constitutional thinking that do not map neatly onto our own. Modern originalists can neither ignore nor bracket this fact by insisting, as they often do, that they are engaged in an interpretive activity called “law” that is distinct from “history,” which supposedly frees them from the need to take past differences seriously. In one way or another, the problem of historical rupture touches everyone who wields the constitutional past in our contested present. 

(Via Dan Ernst at Legal History Blog.)

(Note: this essay is in substantial part a review of -- or at least inspired by -- Jack Balkin's new book Memory and Authority: The Uses of History in Constitutional Interpretation (2024))

Originalism and "Actual Malice"Michael Ramsey

At Law & Liberty, a forum on New York Times v. Sullivan, headlined by Carson Holloway (Claremont Institute): The Case Against New York Times v. Sullivan.  From the introduction:

... [A] principled commitment to text, original meaning, and history should lead today’s justices to reconsider the “actual malice” doctrine by which the Supreme Court in the 1960s and 1970s revised the traditional law of libel and the long-established understanding of the First Amendment’s protection for the “freedom of the press.” On the traditional view, libel—or the publication of defamatory falsehoods—was no part of the freedom of the press. It was rather an abuse thought to be outside the scope of that freedom. Accordingly, suits for libel raised no constitutional problems at all, even when the plaintiffs were elected officials or candidates for public office.

In 1964, the modern Court set this tradition aside and substituted a new, two-tier system of libel law, establishing special standards for cases in which public officials (and, later, “public figures”) sued to recover damages for injuries to reputation. Unlike ordinary litigants, the Court announced, public persons, in order to prevail in a libel suit, would have to show not only that they had been victimized by publication of a defamatory falsehood, but also that the publisher had acted with “actual malice”—understood as knowledge of the falsity of the published claim, or at least “reckless disregard” for whether it was true or false. These standards have no basis in the text, original meaning, or history of the Constitution and are a product of judicial activism in the spirit of Roe. The contemporary Court owes it to the nation to reconsider them and return us to traditional principles in this area of constitutional jurisprudence.

Plus these responses:

Angel Eduardo,  What the First Amendment Is For

Glenn Reynolds, Whither Sullivan?

John McGinnis, Originalism and Sullivan

And a reply from Carson Holloway: Originalism, Libel, and the First Amendment.

Cass Sunstein: Historians and OriginalistsMichael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School) has posted Historians and Originalists (10 pages) on SSRN.  Here is the abstract:

Suppose that historians establish that the original public meaning of the First Amendment leads to a much less protective system of free speech than the one to which we have become accustomed, or that the due process clause does not protect much at all. Or suppose, far more dramatically and consistent with the work of Stanford's Jonathan Gienapp, that historians establish that contemporary lawyers and judges have mangled the founding, in the sense that they have fundamentally misunderstood what the founding generation established. What then? Nonoriginalists need not much struggle with that question, but originalists might have to bite some hard bullets. They might have to call for a system of constitutional law that contemporary judges, lawyers, politicians, and citizens would not recognize or might even deplore. Alternatively, they might defend public meaning originalism on the ground that it protects the rule of law and related values, even if it does not really channel the founding, and even if it produces a constitutional order that the founding generation would not recognize and would in fact deplore. But most originalists are unlikely to want to defend their approach on that ground; for better or for worse, they seek to maintain continuity with the founding era. The affective pull of originalism lies in a claim of continuity, even though the strongest arguments on behalf of originalism have exactly nothing to do with that affective pull. In the end, any theory of constitutional interpretation must be justified, not on the ground that it will preserve some kind of continuity with the distant past, but on the ground that it will produce a constitutional order that deserves general support.

New Fed Soc President: Sheldon GilbertMichael Ramsey

According to a Federalist Society press release, Sheldon Gelbert will succeed Eugene Meyer as President of the Federalist Society.  The announcement is here, via Jonathan Adler at Volokh Conspiracy.  Also at Volokh Conspiracy, Steven Calabresi (one of the Society's founders) comments enthusiastically here.  An excerpt:  

... Sheldon is a brilliant libertarian conservative who is 44 years old, has four children, and has held leading positions at the Chamber of Commerce litigation team, the Institute for Justice litigation team, the National Constitution Center headed up by Jeff Rosen, and as a senior counsel at Walmart, which recently decided to end its DEI policy. Sheldon is a member of the Church of Jesus Christ of Latter Day Saints.

Sheldon is highly respected by the rising generation of Federalist Society lawyers in their thirties and forties. He is known for being friendly and kind to everyone, and he has a huge number of friends. Sheldon is an originalist who is committed to the rule of law, to the idea of the separation of powers, and to the principle that it is emphatically the province and duty of the judiciary to say what the law is and not what it should be. 

Is the Impoundment Control Act Unconstitutional? [Updated with Comment]Michael Ramsey

In Roll Call, Michael Macagnone: Trump risks legal clashes in plans to not spend appropriations.  From the introduction:

The incoming Trump administration plan to slash federal spending would have to overcome decades of court decisions and likely face a Supreme Court showdown, experts say, a legal headwind highlighted by President-elect Donald Trump’s choice of deputy director for the Office of Management and Budget.

Trump and allies, including OMB director pick Russ Vought and external advisors Elon Musk and Vivek Ramaswamy, have argued the president can unilaterally choose not to spend funds appropriated by Congress — a process known as impoundment.

A 1974 law called the Impoundment Control Act mandates that presidents spend funds appropriated by Congress. A report published by the Vought-led Center for Renewing America argued that the appropriations clause only put a “ceiling” on federal funding and said the 1974 law was an “unprecedented break” with the nation’s history.

The report said that “for much of the Nation’s history, such a congressional power was so beyond the realm of constitutional permissibility that it was almost never even asserted.”

Musk and Ramaswamy, tapped to lead the so-called Department of Government Efficiency, argued in a Wall Street Journal op-ed that the 1974 law is unconstitutional and “we believe the current Supreme Court would likely side with him on this question.”

And Trump in a campaign video last year said he intends to use the “long-recognized impoundment power to squeeze the bloated federal bureaucracy for massive savings.”

For decades courts have ruled that presidents cannot ignore Congress’ power to appropriate funds and decide on their own not to spend them, experts said.

Nicholas Bagley, a law professor at the University of Michigan, said that Supreme Court decisions dating back as far as 1838 underline the president’s inability to unilaterally refuse to spend the money Congress appropriated.

On X, Mark Paoletta has a response, including:

 

Presidents have impounded billions of dollars of funds, EVEN with appropriations language that MANDATED that it be spent on certain projects. For example, in 1896, President Cleveland’s Attorney General, Judson Harmon, issued an opinion stating in response to a question about whether appropriations language stating that funds “shall be expended” on certain a project was mandatory, wrote: “The direction to expend the sums mentioned in the proviso is, in my opinion, not mandatory to the extent that you are bound to expend the full amount if the work can be done for less.” This simply reflected the longstanding view that the Executive was not bound to expend the full amount of an appropriation, even if the appropriation used mandatory language.

 

...

 

Why are we taking on this 1974 law? Because it is one of the main reasons federal spending is out of control. This law makes a mockery of the constitutional order and by purporting to make it illegal for a President to spend less than the full amount appropriated even if he can accomplish a project for less money. Under the ICA, if Congress appropriates $100 million to build a tank, and the President and his team work hard to save the taxpayer money by building it for $75 million, he is violating the ICA if he does not spend the remaining $25 million The ICA made an appropriation a FLOOR on spending rather than a CEILING. This turned our history of appropriations and spending on its head. The ICA has been a Congressional power grab and unconstitutional invasion into the President’s ability to carry out his executive functions.

 

(Via Real Clear Politics.)

 

I'm not sure what I think about this issue (except that from an originalist perspective I'm not that impressed by what Cleveland's attorney general thought, or even a case from 1838).  I agree that in the ordinary course an appropriation would be read as permissive rather than mandatory, and perhaps even that it should be read as permissive unless its mandatory nature is entirely clear.  But the Impoundment Control Act is another matter, because it is clear, and it seems plausibly within Congress' power over spending. I take it that the counterargument is that the Act infringes the President's power to execute the law, but I'm not sure that the Constitution can be read to give the President a constitutional discretion in the matter.  (And as far as I know there isn't anything from the founding era that's helpful.)  This might be a situation where originalism doesn't provide an answer.

 

I do think the Impoundment Control Act is really bad policy.  But that doesn't make it unconstitutional, at least not on this blog. 

 

UPDATE:  Devin Watkins comments:

 

My view is that there are applications of the Impoundment Control Act that must be unconstitutional, but not necessarily all applications. 

 

A valid application is that the Impoundment Control Act can obligate the government to provide money to someone outside of government. Nixon tried to impound some of these spending provisions, and I think Congress can create a right to receive such funds that it appropriates. 

 

However, when money is allocated to be spent on actions by executive branch officials, I don't think Congress can require the Executive to spend the money in the manner that Congress wants. As an extreme example, let's say Congress allocated $1 billion for the prosecution of person X, or group Y. I think the President's executive authority over his subordinates in the exercise of executive power in prosecutorial discretion would permit him to refuse to spend the money for that purpose regardless of the Impoundment Control Act. Similarly, when Congress allocates money to an executive branch agency to spend on executive branch officials doing some activities/program, the President could exercise his executive power to refuse to spend that money.

 

Saying that the President must faithfully execute the law and the Impoundment Control Act is the law doesn't really resolve the issue, because if the President's executive authority makes that application of the Impoundment Control Act unconstitutional then it isn't the law.

Mark Graber: Section Three of the Fourteenth Amendment: Insurrection (with my Thoughts)Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Section Three of the Fourteenth Amendment: Insurrection (William & Mary Bill of Rights Journal (forthcoming 2024)) (62 pages) on SSRN.  Here is the abstract:

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing.  Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an “oathbreaking insurrectionist.” One consequence of this omission in the popular press and Supreme Court is the impression that what constituted an insurrection or engaging in an insurrection was not well defined in 1866, that the Reconstruction Republican framers largely jerry-rigged a vague understanding of insurrection into the Constitution.

This Article demonstrates that the constitutional/common law of insurrection was well-established and well-understood in 1866. “Insurrection” at the time Section Three of the Fourteenth Amendment was framed and ratified “had a precise and well-understood meaning.” This understanding was articulated from the American Revolution to Reconstruction by the Supreme Court, by Supreme Court Justices riding circuit, by other federal judges, by state court justices, and by the leading legal treatise writers during the period between the  ratification of the Constitution and Reconstruction. Clear standards exist from 1866 that enable state and federal officials to determine whether the persons responsible for drafting Section Three of the Fourteenth Amendment would have thought the events of January 6, 2021, were an insurrection and whether Trump engaged in that insurrection. 

The Congressional Globe, case survey, and constitutional commentaries clearly support the following conclusions: First, an insurrection at the time Section Three was framed consisted of an assemblage resisting the implementation of any law by force, violence, and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government. Second, the events of January 6, 2021, are consistent with the legal understanding of insurrection in 1866. Third, constitutional authorities before, during, and immediately after the Civil War maintained that any person who knowingly contributed to an insurrection was engaged in that insurrection, even if that person did not personally commit an act of violence or was far from the scene of the violence, force, and intimidation. Fourth, if the allegations made by the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol and state decisions disqualifying Trump are true, the Former President participated in the insurrection that took place on January 6, 2021.

Congress relied on this consensual understanding of insurrection when framing the Second Confiscation Act of 1862. The Senators who insisted that Section Two of that measure punish persons who “shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States” stated that they were not altering the law of treason and insurrection by describing separate offenses. Section Two was rooted in part by a misinterpretation of judicial  decisions that some Senators believed required that they spell out what they believed constituted insurrectionary behavior and in part because no one wanted all participants in the Civil War to be executed for treason. If members of the Thirty-Seventh Congress would have thought that an insurrection took place on January 6, 2021, and Trump participated in that insurrection, then those members of the Thirty-Ninth Congress who framed Section Three would have thought Trump is disqualified from holding state or federal office in the United States.

Some very confident statements here from a respected legal historian using history to establish a determinate original meaning of constitutional text relevant to a modern controversy.

So will historians and others who think history is too contingent and ambiguous to support the originalism project protest these conclusions?

Hypothesis: the 'history is indeterminate' critique of originalism  applies only to originalist arguments that produce conservative results.  Originalist arguments that produce left-leaning results are fine.  For example, in addition to Trump disqualification: emoluments, presidential immunity, birthright citizenship, presidential war power, and that's just a start.  I would like to be proved wrong on this.

John McGinnis on Gordon WoodMichael Ramsey

At Law & Liberty, John McGinnis: Gordon Wood and the Founders’ Revolution.  From the introduction:

The 250th anniversary of the Declaration of Independence in 2026 offers an occasion to reflect on how the American Revolution forged not only a nation but a people. That opportunity makes the work of Gordon Wood as salient as it has ever been. Wood, among America’s most distinguished historians, has devoted his career to elucidating how the revolutionary generation not only established a nation but shaped the identity of its people. His work reveals that the Revolution was far more than a mere transfer of power; it was a radical transformation that forged enduring principles of liberty and equality. In The Creation of the American Republic and Pulitzer prize-winning The Radicalism of the American Revolution, Wood has demonstrated that the revolutionary experience remains foundational to understanding the American ethos.

Wood’s brilliance lies in his capacity to place the Founders’ decisions within the constraints and opportunities of their time while illuminating their enduring relevance. Wood possesses a particular capacity to anchor his analysis in the lived realities of the Founders, demonstrating how their ideas sprang not from our hindsight-laden narratives but from the constraints and opportunities they faced. This is most evident in his treatment of slavery. Wood reveals how the Revolution and its Enlightenment ideals cast a new moral light on an institution that had persisted for millennia. The Founders therefore recognized slavery as a moral evil, but their response to this evil was hampered by an incorrect factual belief. Misled by the assumption that slavery was economically unsustainable and nearing its natural end, they underestimated how technological advances like the cotton gin would revitalize the institution. By situating their choices in the uncertainties of their time, Wood compels us to judge the Founders not by our standards but by their lived context.

Even more importantly, Wood demonstrates how the Founders’ experiences echo through the centuries, shaping not only our legal and political structures but also our very frameworks of thought. As we approach the 250th anniversary of the Declaration of Independence, this later contribution is all the more relevant. The revolutionary generation not only broke with an empire but forged new ways of thinking about liberty, democracy, and governance that remain foundational to American identity. Wood’s explication of these intellectual legacies helps us understand not just who they were but who we are.

In his most recent book, Power and Liberty, Wood does for American constitutionalism what his teacher Bernard Bailyn did for the American Revolution in The Ideological Origins of the American Revolution. He demonstrates how the Constitution grew organically from the debates about political power animating the revolutionary generation. While constitutional lawyers often view the Constitution as an abstract text, Wood reminds us of how it was forged through historical struggles, and how those struggles continue to inform how we deploy it. For constitutional law, the past is never truly past. It is present in our debates, in our doctrines, and in our very understanding of governance. ...

And here is the book description for Professor Wood's Power and Liberty: Constitutionalism in the American Revolution (Oxford University Press, 2021):

New York Times bestseller and Pulitzer Prize-winning author Gordon S. Wood elucidates the debates over the founding documents of the United States.

The half century extending from the imperial crisis between Britain and its colonies in the 1760s to the early decades of the new republic of the United States was the greatest and most creative era of constitutionalism in American history, and perhaps in the world. During these decades, Americans explored and debated all aspects of politics and constitutionalism--the nature of power, liberty, representation, rights, the division of authority between different spheres of government, sovereignty, judicial authority, and written constitutions. The results of these issues produced institutions that have lasted for over two centuries.

In this new book, eminent historian Gordon S. Wood distills a lifetime of work on constitutional innovations during the Revolutionary era. In concise form, he illuminates critical events in the nation's founding, ranging from the imperial debate that led to the Declaration of Independence to the revolutionary state constitution making in 1776 and the creation of the Federal Constitution in 1787. Among other topics, he discusses slavery and constitutionalism, the emergence of the judiciary as one of the major tripartite institutions of government, the demarcation between public and private, and the formation of states' rights.

Here is an immensely readable synthesis of the key era in the making of the history of the United States, presenting timely insights on the Constitution and the nation's foundational legal and political documents.

Anthony Bellia & Bradford Clark: Constitutional Federalism and the Nature of the UnionMichael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted Constitutional Federalism and the Nature of the Union (William & Mary L. Rev., Vol. 66, No. 2, 2024) (115 pages) on SSRN.  Here is the abstract:

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in North America became “Free and Independent States” following the Declaration of Independence—a status that entitled them to all of the rights and powers of every other sovereign state under the law of nations. Under that law, states could alienate their sovereign rights and powers in a binding legal instrument, but only if the instrument met certain requirements. As Vattel explained, and Hamilton echoed in The Federalist, all instruments used to alienate such rights and powers were subject to an important background rule designed to avoid misunderstandings and war: a legal instrument could alienate sovereign rights and powers only if it did so in clear and express terms or by unavoidable implication. Instruments that failed this test left sovereign rights and powers with the original holder. Hamilton explained that because the Constitution involved a “division of the sovereign power,” this rule was “clearly admitted by the whole tenor of the instrument.” Thus, as this Article and our prior work reveal, the proper question in federalism cases is not whether the Constitution affirmatively grants the States sovereign rights and powers (it does not), but whether it includes text sufficient to alienate the rights and powers they enjoyed when they became “Free and Independent States.” From this perspective, the Court’s leading federalism doctrines have a firm basis in the original meaning of the constitutional text—understood in its full legal and historical context. In defending this thesis, the Article responds to several scholars who have recently challenged our approach. Their critiques do not withstand scrutiny and are refuted by substantial evidence found not only in America’s pre-constitutional founding documents and background law, but also in The Federalist Papers, the ratification debates, and significant early opinions of the Supreme Court.

Although the authors don't explore it in detail, this approach would (at least in my view) have some significant implications for state power in foreign affairs, which would be consistent with what I've argued elsewhere.

Josh Blackman on "Originalist Angles"Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Originalist Angles Looking for Staff Writers.  From the introduction:

My work with the Harlan Institute has introduced me to many High Schoolers who have a deep knowledge of constitutional law. I am extremely proud of Originalist Angles, a national high school law journal. It has published insightful essays on pending Supreme Court, deep dives into originalist theory, as well as interviews with jurists and scholars. This is an impressive endeavor.

I am happy to pass along this announcement from Managing Editor Maclain Conlin. They are looking for Staff Writers ...

And from the announcement: 

Dear fellow students,

I hope that you are having a great week! My name is Maclain Conlin, and I am the Managing Editor of Originalist Angles, a national high school law journal. I am happy to report that we are looking for new Staff Writers for the coming year, and cordially invite you to apply!

What is Originalist Angles and what is its purpose?

Originalist Angles is a national law journal written by and for high school students. OA's Board of Advisors includes top law professors at UVA, Georgetown, and the University of Minnesota, and our site is listed as a recommended resource by Georgetown University's Center for the Constitution. Our purpose is to engage young minds in legal debates through the study of originalism as a lens of constitutional interpretation. We are guided by three core principles:

1. Young people have both a right and a duty to contribute to the great legal debates shaping our nation. To that end, we give students a unique chance to publish their legal writing and to participate in regular symposiums on the most pressing issues in constitutional law.

2. Freedom of speech is essential to the discovery of objective truth. In this vein, we do not require our writers to support any specific point of view. We encourage debate and counterarguments.

3. High school students should have access to the greatest legal minds of our time. To fulfill this principle, we regularly publish interviews with top federal judges, legal scholars, and practicing attorneys on their respective fields.

Very impressive!  I had not known about this, although apparently I should have.

Matthew Tokson: Fourth Amendment Originalism and the Trespass TestMichael Ramsey

Matthew Tokson (University of Utah - S.J. Quinney College of Law) has posted Fourth Amendment Originalism and the Trespass Test (55 pages) on SSRN.  Here is the abstract:

The trespass test provides that any physical intrusion on personal property for investigative purposes is a Fourth Amendment search, presumptively requiring a warrant. The Supreme Court established the test in 2012, describing it as a restoration of original Fourth Amendment law, grounded in text and history. This Article challenges the Court’s originalist account of the trespass test, showing how it diverges from Founding-era understandings and practices. More broadly, the Article draws on the extensive historical literature of the Fourth Amendment and identifies the original public meaning of “unreasonable searches,” illuminating the original Amendment’s scope and power.

Equally important, the Article contends that this originalist interpretation of the Fourth Amendment’s meaning is normatively and practically undesirable in the modern era. The unsuitability of the original Fourth Amendment for present-day application reflects the radically different paradigm of law enforcement that prevailed in the Founding era, when professional police departments did not exist, and most investigations were conducted by crime victims rather than government officials. When the circumstances surrounding a constitutional provision have changed to a sufficient extent, following the provision’s original meaning may not only undermine its original purpose but also produce exceptionally arbitrary results. In these situations, originalism can become so normatively unacceptable that even originalists may seek alternative approaches

David Lat on Supreme Court VacanciesMichael Ramsey

At Bloomberg Law, David Lat: Trump’s Next Supreme Court Pick Could Be One of These Four Judges. From the introduction:

"Judges are the most successful policy initiative of President Trump’s first term,” said Rob Luther, a law professor at George Mason University who worked on judicial nominations during the first Trump administration.

And President-elect Donald Trump’s most consequential transformation was that of the US Supreme Court during his first term. By appointing Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, he established a 6-3, conservative supermajority that moved the court significantly to the right.

It’s unlikely that Trump in his second term will have anywhere near the same impact on the court—because it’s already so conservative, and none of the three liberal justices would willingly give Trump a vacancy. But if Justices Clarence Thomas, 76, and Samuel Alito, 74, were to step down, Trump could replace them with like-minded but much younger jurists—possibly cementing conservative domination of the court for another generation.

With Republicans holding 53 seats in the next Senate, Trump could lose three GOP votes, including relative moderates like Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), and still get his choice confirmed. This would give him the leeway to appoint a quite conservative nominee, as long as the pick is well-qualified.

The post notes three likely front-runners: Amul Thapar (6th Circuit), James Ho (5th Circuit), and Andrew Oldham (5th Circuit):

At last month’s National Lawyers Convention of the Federalist Society—which played a crucial role in picking judicial nominees in Trump’s first term, but whose involvement in his second term is uncertain—Supreme Court nominations were a leading topic of conversation. Among the attendees I spoke with, Thapar, Ho, and Oldham consistently came up as possible high-court picks.

And it adds a fourth: 

On the “Advisory Opinions” podcast, the extremely well-connected Sarah Isgur also highlighted the trio of Thapar, Ho, and Oldham. But she added to the mix a dark horse candidate, Ninth Circuit [ed.: and San Diego-based] Judge Patrick Bumatay, 46—whom I identified more than two years ago, on the “Short Circuit” podcast, as a high-court contender.

Bumatay’s full-throated originalism draws heavily on Thomas’ jurisprudence. And Bumatay would be a historic pick not just as the first Asian American justice, but as the first openly gay justice.

Plus:

If Trump wants to mix things up by looking beyond these four frontrunners, a longer shortlist might include Judges Neomi Rao of the D.C. Circuit, Steven Menashi of the Second Circuit, Kyle Duncan of the Fifth Circuit, and Lawrence VanDyke of the Ninth Circuit, as well as former US solicitor general Noel Francisco and former Texas solicitor general Jonathan Mitchell.

But also from David Lat, at his substack: SCOTUS Clerk Hiring Watch: Retirement Clues? Here’s more reason to think that Justices Thomas and Alito aren’t stepping down, at least for the time being.

(Via How Appealing.)

Julian Ku on Curtis Bradley's "Historical Gloss in Foreign Affairs"Michael Ramsey

At the Federalist Society Blog, Julian Ku (Hofstra): How Should Historical Gloss Inform Our Interpretation of the Constitution? (reviewing Curtis Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice [Harvard Univ. Press 2024]).  From the introduction:

Justice Frankfurter’s appeal to historical government practice [in the Steel Seizure case] —“the gloss which life has written”—does not fit neatly into either originalist or nonoriginalist approaches to constitutional interpretation. But reliance upon historical gloss is often decisive in resolving the most contentious questions of constitutional law relating to foreign affairs and separation of powers, argues Professor Curtis Bradley in his timely and authoritative Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. Bradley’s study reveals why originalists should welcome the use of historical gloss as a crucial interpretive ally in fending off nonoriginalist appeals to interpretive methods untethered to either text or history. Historical gloss is not originalism, and it should not replace originalist interpretation. But it is hard to imagine a functional originalist Constitution without it.

Historical gloss refers to “[d]eeply embedded traditional ways of conducting government” by the executive and legislative branches that arise over decades or even centuries of practice that can help to explain unclear text or fill textual gaps. For example, the Constitution says that the Senate shall give “advice and consent” for any treaties, but every president since Washington has ignored the “advice” requirement and negotiated treaties without any Senate consultation, seeking only the Senate’s “consent.” The Supreme Court has never considered this issue, in no small part because historical gloss shows that there is a consistent and long-standing interpretation accepted by both the executive and the Senate.

And from later on:

A more serious originalist criticism of historical gloss is that it might be used to override—rather than supplement—originalist interpretations of the constitutional text. The clearest example of the power of historical gloss to defeat an originalist position occurred outside the foreign affairs context in the Supreme Court’s 2014 decision in NLRB v. Noel Canning, where the Court partially limited the presidential recess appointments power.

In that case, the Court refused to allow President Obama to unilaterally appoint executive officials during a three-day Senate recess. The Court’s majority, in an opinion by Justice Breyer, held that historical gloss led to the conclusion that a three-day recess was not long enough to support the use of the recess appointments power. But historical gloss also led Justice Breyer to reject the originalist view, espoused in Justice Scalia’s concurrence, that the recess appointments power can only be used during inter-session recesses. In other words, while there were strong originalist arguments for this more restrictive view, the lack of historical gloss convinced a majority of the Court to forge a middle way.

Noel Canning illustrates the tension between originalism and historical gloss. While historical gloss usually can be said to reflect the constitutional understandings of the different political branches over time, in the case of recess appointments, it seems that the president and Congress might have failed to understand the originalist position rather than evolving a common understanding of it with experience over time. Indeed, Noel Canning is a cautionary tale for historical gloss enthusiasts: the non-originalist result has created uncertainty over how long a recess must be to allow a recess appointment, and it has opened the door to presidents’ manipulation of the recess appointment power to aggrandize their power over appointments at the expense of the Senate.

The Noel Canning dilemma reminds constitutional interpreters to be cautious about relying too much on historical gloss, especially when there is a solid originalist alternative. Yet it is also hard to imagine a purely originalist constitution, particularly in the realm of foreign affairs, without the valuable insights historical gloss provides about how prior presidents and congresses conceived of their constitutional powers. Courts that undervalue historical gloss might be tempted, for instance, to intervene on originalist grounds to invalidate practices such as the widespread use of congressional-executive agreements or to sharply restrict unilateral presidential uses of military force. Such disruptions to long-standing practices of the political branches should rarely occur since the task of courts should be, if at all possible, to avoid creating inter-branch conflict and constitutional crises.

Bradley does not express a strong view on whether and how historical gloss should be used in conjunction (or in opposition) to originalism. His work is primarily descriptive and allows readers to draw their own normative conclusions. This careful, nuanced, and unbiased approach, which is characteristic of all of Bradley’s scholarship, has made him the leading authority on the actual content of the law of foreign relations. But like any good scholar, his work leads to more questions than answers. The rest of the foreign affairs law world, both scholars and practitioners, will have their work cut out for them as they try to combine the importance of historical gloss with the ongoing normative struggle over the proper method of constitutional interpretation.

Jonathan Meilaender: Structural Textualism and Major QuestionsMichael Ramsey

Jonathan Meilaender (Harvard Law School JD '25) has posted Structural Textualism and Major Questions (Harvard Journal of Law and Public Policy, Volume 48, No. 1 (forthcoming 2025)) (29 pages) on SSRN.  Here is the abstract:

Justice Barrett's concurrence in Biden v. Nebraska aims to describe and defend the Major Questions Doctrine on textualist grounds. The Court's Major Questions cases, she argues, merely situate statutes within constitutional context, relying on commonsense notions of principal-agent relationships to offer the most natural reading of statutory text. Those commonsense notions include the "basic premise" that Congress usually intends to answer major questions itself. Justice Barrett's analysis has lately attracted criticism on the grounds that her underlying presumptions are either wrong or impermissible for a textualist. First, perhaps Congress often does intend to make major delegations. Second, Justice Barrett's underlying presumptions might not be sufficiently common or obvious to modify textual meaning: they are not part of common sense. These criticisms misunderstand the nature of the Biden v. Nebraska textual analysis, since Justice Barrett's "basic premise" is neither an empirical claim nor a statement about conventional assumptions. Nor is it a mere policy preference. It is, instead, a structural constitutional premise. Justice Barrett, like all textualists, views the text through the eyes of a hypothetical reasonable interpreter. But her interpreter is normatively reasonable, not a mere aggregator of shared conventions. Her interpreter's "common sense" is "sensible," but need not be "common" in the real world. Justice Barrett argues that a reasonable third-party observer would establish statutory context by looking to the Constitution first, and would be rationally compelled to acknowledge that the Constitution sets forth a particular kind of principal-agent relationship between Congress and agencies. In this way her Major Questions Doctrine integrates structuralism into textual meaning.

Evan Bernick: Against Constitutional IconoclasmMichael Ramsey

Evan D. Bernick (Northern Illinois University College of Law) has posted Against Constitutional Iconoclasm (reviewing Mark Graber, Punish Treason, Reward Loyalty [University Press of Kansas, 2023]) (32 pages) on SSRN.  Here is the abstract:

Mark Graber's "Punish Treason, Reward Loyalty" (PTRL) is a compelling work of constitutional iconoclasm, calculated to discourage the civic veneration which the Fourteenth Amendment to the U.S. Constitution has long received. This article is in roughly equal parts a review of Graber's book and a reflection upon normative questions regarding constitutional power which PTRL raises but does not address.

Graber contends that the Fourteenth Amendment was primarily designed by its Republican Framers to entrench Republican power, not to establish racial equality. The Fourteenth Amendment’s history, language, and design reflects that racial equality was but one of many things that Republicans cared about. And Republicans sacrificed racial equality to what they regarded as more pressing constitutional priorities.

I advance three criticisms. First, Graber only briefly engages Fourteenth Amendment scholarship which explores the meaning of the Amendment’s language, and his strident claims about it put him well ahead of his evidence. Second, the most arresting claim in PTRL is that the value of Black rights was for most of the Fourteenth Amendment’s Framers contingent upon their utility to “white interests.” But Graber doesn’t specify the nature of those interests, and the evidence which he presents is equivocal. Third and finally, Graber’s elite-centered approach to Republican constitutionalism neglects constitutional power which nonelites—particularly Black nonelites—built and wielded in spite of unjust exclusions.

I conclude with an extended reflection upon the normative dimensions of constitutional power, drawing upon the work of two of the boldest iconoclasts in human history: Benedict Spinoza and W.E.B. Du Bois. Both saw a world of difference between exercising democratic power with others in mutually beneficial ways and exerting dominating power over others at others' expense. Both sought to build the former and destroy the latter. To that end, both deployed narratives about the rise and fall of democratic constitutions in order to engage and inspire readers. Graber’s reluctance to get normative doesn’t cause him to miss the constitutional plot, but there are more stories to tell.

Larry Schwartztol: Congress's Power Over the Electoral CountMichael Ramsey

Larry Schwartztol (Harvard Law School) has posted Congress's Power Over the Electoral Count (78 Vanderbilt L. Rev.  (forthcoming 2025) (53 pages) on SSRN.  Here is the abstract:

Does Congress have authority to pass legislation regulating the counting of electoral votes? This is a consequential question for the legal framework governing presidential elections. In 2022, Congress passed the Electoral Count Reform Act ("ECRA"), which overhauled the statutory regime governing the counting of electoral votes. The ECRA's predecessor statute, which had been in place since 1887, had long been criticized as ambiguous and unnecessarily convoluted. Those deficiencies were widely seen as a contributing cause of the attacks on the Capitol of January 6, 2021, and a rare bipartisan majority in Congress passed the ECRA to address the earlier statute's shortcomings. Yet it did so against a backdrop of unresolved questions about Congress's authority to legislate in this area. The scholarly literature, however, lacks a sustained defense of Congress's power to regulate the counting of electoral votes. This Article aims to fill that gap. It does so in two ways. First, it engages with the skeptics of Congress's authority on their traditional terrain, locating ample congressional authority grounded in the text, structure, and history of Article II and the Twelfth Amendment. The Article then seeks to expand the analytic framework by focusing on a constitutional provision that tends to stay out of the limelight: the Twentieth Amendment, which reconfigures the period between Election Day and Inauguration Day. In defending Congress's authority to pass laws regulating the counting of electoral votes, this Article provides the first scholarly treatment of the Twentieth Amendment's significance in this area.

Tom Bell: The Counter-Militia Second AmendmentMichael Ramsey

Tom W. Bell (Chapman University, Dale E. Fowler School of Law) has posted The Counter-Militia Second Amendment (24 Wyoming L. Rev. ___ (2024) (forthcoming)) (19 pages) on SSRN.  Here is the abstract:

Despite their many disagreements about how to interpret it, courts and commentators agree that the Second Amendment of the United States Constitution favors the militia. Some think that the Second Amendment protects an individual right to keep and bear arms so that citizens can better defend themselves and their country. Others think that the right pertains only to active service in a militia that has been called up and put into public service. But what if they all got it backwards? What if the Second Amendment, instead of empowering the militia, aims to check and balance it? On this counter-militia reading, the Second Amendment begins by apologizing for, "A well regulated Militia being, necessary to the security of a free State," and concludes by promising, as a remedy for the dangers of wayward militias, that "the right of the people to keep and bear Arms, shall not be infringed." Though a mirror image of the usual interpretation, that hews to a straightforward reading of the text. The counter-militia interpretation finds support in originalism, too, because it comports with the view, popular among those who ratified the Bill of Rights, that disciplined bodies of armed men cannot be trusted to respect individual liberties. It likewise agrees with the widespread belief, founded on the bitter experience of ex-slaves and inspiring ratification of the 14 th Amendment, that badly regulated militias imperil fundamental human rights. Precedent, however, says nothing about the counter-militia Second Amendment. No courts and almost no commentators have even considered this alternative to the usual interpretation, much less put it to use. Doing so might have a bracing effect of firearms law in the United States by requiring that the right to keep and bear arms reach far enough to ensure a capable defense against militias gone wrong. Application of the counter-militia Second Amendment against state governments, via incorporation, would have similar effect. Whether that would represent sage public policy or reflect contemporary public opinion goes unanswered here. This paper offers the counter-militia Second Amendment as the best interpretation of the constitutional text, not as the most familiar or comforting one.

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

The Nonoriginalist Case Against Birthright CitizenshipMike Rappaport

At the end of his post on birthright citizenship, Mike Ramsey writes: "On the other hand, for nonoriginalists, the case against birthright citizenship in light of modern circumstances (which are quite different from the time the Amendment was adopted) might seem considerably stronger."

Some years ago, I wrote two posts on the Nonoriginalist Case Against Birthright Citizenship.  While I agree with Ramsey about the originalist argument, I made out the nonoriginalist case against birthright citizenship.  See here and especially here. 

For an excerpt: 

But the strongest normative argument against conferring citizenship on the children of illegal aliens derives from the fact that, in the modern world, American citizenship is a tremendous privilege.  It gives access to high wage markets as well as welfare state benefits.    Given these privileges, the normative question is how we should allocate this privilege of citizenship.

It seems obvious that citizenship should not be granted simply based on the accident of being born in the United States.  Why would one want to allocate citizenship to children merely because they were born here as a result of their parents having come here illegally?  As I noted in an earlier post, there are a variety of ways one might want to allocate citizenship (and immigration) – based on quotas from countries, based on skills contributed to the United States, based on years already lived in the United States – but none of those are based on the simple accident of being born in the US.

Finally, a third type of nonoriginalist argument is to look to the existence of laws throughout the world, especially that of “civilized” countries in Europe.  A strong trend as to these laws suggests that normatively the United States ought to follow it.  Significantly, the only two developed countries in the world that have birthright citizenship are Canada and the United States.  None of the European countries have it and several developed nations have repealed it in the last generation. 

Ilya Somin on Birthright CitizenshipMichael Ramsey

At Just Security, Ilya Somin: Birthright Citizenship and Undocumented Immigrants.  From the introduction:

The incoming Trump administration may be preparing to deny citizenship rights to children of undocumented immigrants born in the United States. That’s according to recent reporting, a statement on Nov. 11 by a presidential transition member helping develop the new administration’s plans for the Justice Department, and a “Day One” video made by President-elect Trump during the campaign (incoming border czar Tom Homan also supports ending birthright citizenship). According to the New York Times, “the team plans to stop issuing citizenship-affirming documents, like passports and Social Security cards, to infants born on domestic soil to undocumented migrant parents in a bid to end birthright citizenship.”

Such policies would be a blatant violation of the Fourteenth Amendment, both the text and the original meaning. Section 1 of the Amendment grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof.” There is no exception for children of illegal migrants. There is broad agreement on that point among most constitutional law scholars, across the ideological and methodological spectrum.

Agreed (and I appreciate the cites later in the post to my birthright citizenship article and recent post on this blog).

As Professor Somin says, this issue is likely to end up in court if the Trump administration pursues it, and it should be an easy call for originalist-oriented judges and Justices.  On the other hand, for nonoriginalists, the case against birthright citizenship in light of modern circumstances (which are quite different from the time the Amendment was adopted) might seem considerably stronger.  So I'll be looking to see if originalist critics suddenly decide that the original meaning is quite clear and must be followed in this case.

New Book: "The Meese Revolution" by Steven Calabresi & Gary LawsonMichael Ramsey

Recently published: The Meese Revolution - The Making of a Constitutional Moment, by Steven Calabresi & Gary Lawson (Encounter Books, Nov. 2024).  Here is the book description from the publisher: 

Edwin Meese III is the most influential person ever to hold the office of U.S. Attorney General – and almost no one knows it. Ed Meese was at the center of virtually every major accomplishment of Ronald Reagan’s transformative presidency, from winning the Cold War without firing a shot to the economic boom that by the end of the 1980s was the envy of the world. More to the point for this book, Ed Meese is the person most responsible for the rise of constitutional originalism, which treats the text and original meaning of the Constitution rather than the policy fads of the moment as authoritative law.

In 2024, originalism is a major force in the courts, with a majority of Supreme Court justices and a raft of lower-court and state-court judges at least taking it seriously as a major contributor to decision-making. That result was unthinkable in 1985 when Meese took office and originalism was essentially unknown to the legal academy and almost wholly absent from the judicial process. Ed Meese turned the U.S. Department of Justice into “the academy in exile,” where originalism was developed, refined, theorized, and put into practice.

This book describes the rise of originalism, which necessitates telling the story of Ed Meese, without whom it surely does not happen. Meese’s story threads through virtually all important legal and policy events of the 1980s, many of which continue to shape the world of the twenty-first century. We are still living through the Meese Revolution.

Via Josh Blackman at Volokh Conspiracy, who recounts an amusing incident from the book: That Time Solicitor General Fried Redacted The Word "Plenary" From a Printed SCOTUS Reply Brief With A Marker.