The Originalism Blog

John McGinnis and Michael Rappaport: An Originalist Approach to Prospective OverrulingMike Rappaport

John McGinnis (Northwestern) and Michael Rappaport (USD) have posted An Originalist Approach to Prospective Overruling (Notre Dame Law Review 2023) on SSRN.  Here is the abstract: 

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would employ a rule based doctrine for gradually returning our constitutional law to the original meaning without upsetting the reliance interests that stare decisis rightly protects.

While originalists, like Justice Antonin Scalia, have been extremely critical of the prospective overruling that the Warren Court used to implement its constitutional revolution, we here defend an approach to prospective overruling that would avoid these originalist criticisms. We show that prospective overruling is a legitimate form of the common law of precedent and thus encompassed by the judicial power. We also show that prospective overruling is not dicta that runs afoul of the Constitution’s case or controversy requirement. In many cases, the substantive constitutional question is so intertwined with the question of precedent that a decision on a provision’s original meaning is necessary to decide the stare decisis issue. In other cases, the resolution of the substantive question should be treated as a holding, even if not strictly necessary to the result, because the question was answered using a method that appears designed to resolve the case. We then illustrate how and when prospective overruling should be applied by reference to cases involving the Commerce Clause, the Nondelegation Doctrine, and the Treaty Clause.

Programming Note: Blog HolidayMichael Ramsey

Programming note: I will be taking a further sabbatical-related blog holiday for most of the rest of this month.  I plan to return in April.

Geoffrey Heeren: Rethinking the Migration or Importation ClauseMichael Ramsey

Geoffrey Heeren (University of Idaho College of Law) has posted Immigration Law and Slavery: Rethinking the Migration or Importation Clause (Wisconsin Law Review, Vol. 2023, No. 4, 2023) (56 pages) on SSRN.  Here is the abstract:

The traditional account of the origins of federal immigration law mostly glosses over its deep connection to slavery. An examination of that connection calls the constitutional foundation for immigration law into question, alters the calculus for judicial review of federal immigration action, reframes our understanding of federalism, and lays bare the nation’s exploitative dependence on immigrant labor. This article makes this paradigm shift by focusing on a long-neglected textual source for federal immigration power: the Migration or Importation Clause of Article I, Section 9, Clause 1 of the Constitution. Scholars have almost uniformly discounted the Migration or Importation Clause as a source for federal immigration power because of its connection to slavery. In sharp contrast, this article contends that the Migration or Importation Clause makes sense as a source for the federal immigration power because of its connection to slavery, which was deeply intertwined in the early Republic with immigration.

The history of the Constitutional Convention reveals that the framers specifically discussed slavery and immigration together and were aware that their chosen wording for the Migration or Importation Clause would apply to free immigrants. An originalist understanding of the Clause therefore supports a federal immigration power under the Commerce Clause, which was the presumptive basis for regulating the slave trade after the 1808 date set out in the Migration or Importation Clause.

The legacy of the Migration or Importation Clause continues to be felt in immigration law. Slavery was an atrocity that inflicted intergenerational harm on blacks; in contrast, immigrants have often enjoyed opportunities and passed on wealth. Nonetheless, the current structure of immigration law perpetuates nineteenth century labor norms for the millions of undocumented workers who under threat of deportation do much of the nation’s most difficult work for lower pay and with fewer legal protections than documented workers. Reckoning with the ties between immigration law and slavery offers an opportunity to reflect on the failures of this system, and also reveals a redemptive path forward. In the face of an exploitative system, the strategies and logic of abolitionism offer hope for a better immigration future.

In my (tentative and evolving) view of the source of federal power over immigration, I agree that (1) the migration or importation clause strongly implies that Congress has power over voluntary migration as well as importation of slaves and (2) that the commerce clause is the likely source of much of this power, as the founding generation presumably thought that most migration would be by commercial ships.  Locating the immigration power solely in the commerce clause, though, may suggest that Congress has no power over voluntary independent migration across land borders.  That may just be a gap in the Constitution's allocation of federal power, as the drafters likely didn't envision much overland migration into the U.S. given the founding-era borders.  And in the absence of federal power, the power would go to the states.  But it's also worth considering Rob Natelson's suggestion that Congress' power over migration also arises from the power to define and punish offenses against the law of nations (his contention is that entering sovereign territory without permission of the sovereign was such an offense).

Ilan Wurman: Importance and Interpretive QuestionsMichael Ramsey

Ilan Wurman (Arizona State University  Sandra Day O'Connor College of Law) has posted Importance and Interpretive Questions (Virginia Law Review, forthcoming) (66 Pages) on SSRN.  Here is the abstract:

In its past term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach anti-administrativist results. One can explain at least some of the cases, however, in a way that constructs a coherent doctrine in which importance has a significant but narrow role in resolving interpretive questions involving ambiguity or uncertainty. Thus understood, such a doctrine could be defensible, if not as a substantive canon, then as a kind of linguistic canon. Unlike other linguistic canons, such a canon would be about how people and lawmakers use language to accomplish results in a circumscribed range of contexts—namely, the delegation of important authorities, whether to other private actors, to government actors in Constitution, or to government actors in the executive department. But unlike substantive canons, it would not relate to a substantive value encoded in the Constitution or in longstanding tradition. Existing empirical work about how legislators legislate, and insights from the philosophy of language, suggest that such a doctrine may be consistent with textualism, and historical research further reveals that a canon of this type may be a longstanding feature of constitutional, contract, and statutory interpretation in related contexts. More provocatively, these same intuitions about importance may explain some substantive canons that are difficult for textualists to justify.

Fred Smith on Mila Sohoni on Procedural OriginalismMichael Ramsey

At Jotwell, Fred O. Smith Jr. (Emory): Originalism's Procedural Puzzle (commenting on Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023)).  From the introduction: 

Here is the puzzle. On one hand, various species of originalism have ostensibly come to dominate American constitutional law. “We are all originalists,” Justice Elena Kagan contended during her 2010 confirmation hearings. “Is originalism our law?” William Baude asked in widely cited 2015 Columbia Law Review article. (His answer was a qualified and nuanced “yes.”) And in the last couple of years, originalism at the Supreme Court has become broad and deep. Broad, in that originalist arguments have proven resistant to countervailing methodological tools such as precedent or even text, allowing originalist arguments to prevail in a wider range of constitutional settings. Deep, in that on issues such as gun rights, the Court has demanded more and more in the way of precise historical analogies from the Founding (or the Second Founding).

On the other hand, Mila Sohoni observes that despite originalism’s rise, one area has been mostly absent from originalism’s reach—procedure. Sohoni focuses on a body of law she terms “constitutional civil procedure,” explaining that a number of important questions in civil procedure turn on interpretations and constructions of constitutional text. Sohoni cabins her analysis to constitutional doctrines that tend to be taught in civil procedure as opposed to courses on constitutional law, federal courts, or remedies. Originalism has barely touched core questions of civil procedure. “It would be tempting to say that all this has been hidden in plain view, but that would only be a half-truth. Civil procedure’s nonoriginalism hasn’t been hidden at all. And yet—until recently—few originalists have faulted procedural law for its infidelity to original meaning.” (P. 992.)

Sohoni offers numerous examples; consider three...

(Via Howard Wasserman at Prawfsblawg.)

2023 Joseph Story Award Goes to Professor Jennifer MascottMichael Ramsey

Originalist scholar Jennifer Mascott (George Mason) is the recipient of the Federalist Society's Joseph Story Award.  From the Society's website:

The Joseph Story Award is given annually to a young academic (40 and under or 10 years on the tenure track or fewer) who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made significant public impact in a manner that advances the rule of law in a free society. This award is presented during the Federalist Society's Annual Student Symposium.

And from the presentation of the award, by Award Chair Matt Phillips:

Mr. Phillips began by detailing Professor Mascott's scholarly contributions.  Referencing her article "Who Are Officers of the United States?," which he called "an originalist tour de force," Mr. Philips noted that Professor Mascott's "seminal work"situated her at the "forefront of the national debate" on the separation of powers. He said Prof. Mascott is an "intellectual trailblazer" and "stalwart defender of the rule of law." He also pointed out her extensive involvement in the legal profession, including her "incredible thought leadership" as the Co-Executive Director of the Gray Center, Public Member of the Administrative Conference of the United States, and Vice Chair of the Constitutional Law and Separation of Powers Committee within the ABA's Section of Administrative Law and Regulatory Practice, as well as her "tireless public service" at the Office of Legal Counsel in the Department of Justice.

Finally, Phillips described Professor Mascott's strength as a "dedicated teacher and mentor" to her students at Scalia Law. He identified her various roles on campus, including that of faculty director of the law school's Supreme Court and Administrative Law clinics, founder of the Separation of Powers Clinic, and co-professor with two Supreme Court Justices. In the words of her students, she is a "fantastic instructor" and "wonderful person" who "models a commitment to family and takes genuine joy in her profession."

(Via Josh Blackman, the 2018 Story Award winner, at Volokh Conspiracy.)

Professor Mascott's articles include:

Who Are "Officers of the United States"? (Stanford Law Review)

Executive Decisions After Arthrex (Supreme Court Review) (with John Duffy)

Early Customs Laws and Delegation (George Washington Law Review)

Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine (George Mason law Review)

The Dictionary as a Specialized Corpus (BYU Law Review)

New Book: "Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution" by Mary Sarah BilderMichael Ramsey

Recently published: Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution, by Mary Sarah Bilder (University of Virginia Press 2022).  Here is the book description from the publisher:

In this provocative new biography, Mary Sarah Bilder looks to the 1780s—the Age of the Constitution—to investigate the rise of a radical new idea in the English-speaking world: female genius. Bilder finds the perfect exemplar of this phenomenon in English-born Eliza Harriot Barons O’Connor. This pathbreaking female educator delivered a University of Pennsylvania lecture attended by George Washington as he and other Constitutional Convention delegates gathered in Philadelphia. As the first such public female lecturer, her courageous performance likely inspired the gender-neutral language of the Constitution.

Female Genius reconstructs Eliza Harriot’s transatlantic life, from Lisbon to Charleston, paying particular attention to her lectures and to the academies she founded, inspiring countless young American women to consider a college education and a role in the political forum. Promoting the ideas made famous by Mary Wollstonecraft, Eliza Harriot brought the concept of female genius to the United States. Its advocates argued that women had equal capacity and deserved an equal education and political representation. Its detractors, who feared it undermined male political power, felt deeply threatened. By 1792 Eliza Harriot experienced struggles that reflected the larger backlash faced by women and people of color as new written constitutions provided the political and legal tools for exclusion based on sex, gender, and race.

In recovering this pioneering life, the richly illustrated Female Genius makes clear that America’s framing moment did not belong solely to white men and offers an inspirational transatlantic history of women who believed in education as a political right.

Sounds super interesting -- I had not heard anything about this before.  Also only $29.99, which is pretty reasonable for an academic press book (are academic presses finally trying to sell books?).  And the author promises "lots of pictures."

 

Donald Dripps: The "Cruel and Unusual" Legacy of the Star ChamberMichael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted The "Cruel and Unusual" Legacy of the Star Chamber (Journal of American Constitutional History, forthcoming 2023) (79 pages) on SSRN.  Here is the abstract:

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty. All three accounts face familiar and formidable historical challenges. There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685. Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment. These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress. Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture. By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment. Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete. The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641. Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital. The English Article 10 repudiated this attempt to resurrect the Star Chamber. Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings. The clause now applied to capital, as well as noncapital, penalties. It now also restricted legislative as well as judicial discretion. Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment. Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature. It may also be, practically speaking, a matter of life and death.

Pratheepan Gulasekaram: The Second Amendment's 'People' Problem [Updated]Michael Ramsey

Pratheepan Gulasekaram (Santa Clara University School of Law) has posted The Second Amendment's 'People' Problem (Vanderbilt Law Review, forthcoming) (51 pages) on SSRN.  Here is the abstract:

The second amendment has a “people” problem. In 2008, Heller v. District of Columbia expanded the scope of the second amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited the “the people” of the second amendment to “law-abiding citizens.” In 2022, NYSRPA v. Bruen doubled-down on the amendment’s self-defense rationales, but once again framed the right as one possessed by “citizens.” In the period between the two Supreme Court cases, eight federal courts of appeals wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of “the people,” they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants. In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearms-related violations. In combination, the Supreme Court’s rhetoric, lower federal court decisions, and federal criminal and immigration statutes excise noncitizens from the “the people” of the second amendment.

This Article is the first to examine the relationship between “the people,” immigration status, and the right to keep and bear arms, in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting “the people” to citizens, or more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of “the people” of the second amendment with “the people” of the first and fourth amendments fares no better. That appraisal also commands broader inclusiveness for the second amendment’s rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of second amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the second amendment’s “the people” in turn, helps ensure noncitizens’ inclusion under other core constitutional protections.

Just off the top of my head, it seems plausible that as an original matter the Second Amendment protects law abiding citizens and noncitizens while the Second Amendment incorporated by the Fourteenth Amendment protects only citizens (because it's incorporated through the privileges or immunities clause).  But the Supreme Court may have boxed itself out of that result by continuing to say incorporation arises from the due process clause.

UPDATE:  A reader comments:

You said the Privileges or Immunities clause of the 14th Amendment only applies to citizens. I have heard that interpretation before but in reading it I had a different interpretation purely from the text (I fully admit to not knowing much of the legal history). 

 

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." I can see where people interpret it as limited to citizens but then that leaves a big question, which privileges or immunites. There are tons out there, some of which we recognize and others we don't. If the "...of citizens of the United States" phrase is about who the clause applies to, it doesn't also act as a modifier or the "privileges or immunitites."

 

I read it as such a modifier and then it doesn't limit persons it would apply to. It would simply be a ban on states abridgment similar to how the 1st Amendment is simply a ban on Congressional abridgment, and would therefore apply to all persons.

 

Is there any law review or similar literature out there fully analyzing the text and history regarding this possible reading? Or has it been simply assumed that the clause only applies to citizens?

 

A good question and I don't know the answer, though I admit that for me the limitation to citizens is mostly an assumption.  If anyone knows of in depth scholarship on the issue let me know and I'll post it.

Kellen Funk & Sandra Mayson: Bail at the FoundingMichael Ramsey

Kellen Funk (Columbia University - Law School) & Sandra G. Mayson (University of Pennsylvania Carey Law School) have posted Bail at the Founding (91 pages) on SSRN.  Here is the abstract:

How did criminal bail work in the founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related provisions in state and federal constitutions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including founding-era statutes, case law, legal treatises, and manuals for justices of the peace; and original court, jail, administrative, and justice-of-the-peace records held in archives and private collections.

The historical inquiry illuminates three key facts. First, the black-letter law of bail in the founding era was highly protective of pretrial liberty. A uniquely American framework for bail guaranteed release, in theory, for nearly all accused persons. Second: Things were different on the ground. The primary records reveal that, for those who lived on the margins of society, bail practice bore little resemblance to the law on the books, and pretrial detention was routine. The third key point cuts across the law and reality of criminal bail: Both in theory and in practice, the bail system was a system of unsecured pledges, not cash deposits. It operated through reputational capital, not financial capital. This fact refutes the claim, frequently advanced by opponents of contemporary bail reform, that cash bail is a timeless American tradition. The contrast between the law-on-the-books and the practice of bail in the founding era, meanwhile, highlights the difficulty of looking to the past for a determinate guide to legal meaning.

Delegating War PowersMichael Ramsey

My new article Delegating War Powers (Southern California Law Review, vol. 96 (forthcoming 2023)) (82 pages) (with Matthew C. Waxman of Columbia Law School) is now on SSRN.  Here is the abstract:

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.

It was not until quite late in American history that the practice of war power delegation became well accepted as a domestic law basis for starting wars. This Article examines the development of war power delegations from the Founding era to the present to identify when and how war power delegations became a broadly accepted practice. As this Article shows, the history of war power delegation does not provide strong support for either of two common but opposite positions: that war power, as a branch of foreign affairs powers, is special in ways that make it exceptionally delegable; or that it is special in ways that make it uniquely nondelegable. More broadly, that record counsels against treating “foreign affairs delegations” as a single category, and it reveals that constitutional questions of how Congress exercises war power are as significant as whether it does.

This isn't a typical constitutional law law review article in that we don't argue for a particular modern  interpretation or original meaning of the Constitution.  Instead our goal is to describe what happened with Congress' approach to war initiation/authorization from the founding to the present, without trying to draw a definite interpretive conclusion from it.  To some extent this reflects my wider ambivalence about the current debates over nondelegation.  We hope it's a useful contribution to those debates, though, in the sense that we need first to understand what actually happened before we can say what it means for constitutional meaning.

Andrew Willinger: The Territories under Text, History, and TraditionMichael Ramsey

Andrew Willinger (Duke University School of Law, Center for Firearms Law) has posted The Territories under Text, History, and Tradition (Washington University Law Review, Volume 101 (forthcoming)) (57 pages) on SSRN.  Here is the abstract:

In two of its major decisions in the 2021-2022 Term, New York State Rifle & Pistol Association v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice as a key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what laws and regulations were considered consistent with that provision. Bruen and Dobbs both considered laws passed by governments in the Western territories prior to statehood in the nineteenth century, but with polar opposite results. One day the Court suggested that territorial laws and practices were exceptional improvisations wholly irrelevant to the search for a national tradition; the very next day, the Court implied that territorial laws and emerging territorial trends can be valuable tools for constitutional interpretation. This Article searches for a more satisfying and consistent theory of how to utilize territorial history in constitutional cases.

Part I critically analyzes the decision in Bruen and the Court’s determination that territorial public-carry bans could not serve as analogues to support New York’s modern gun-licensing law. Part II explains the history of continental territories, examines Dobbs and other Supreme Court decisions invoking territorial laws and practices, and identifies relevant principles from legal scholarship regarding the Court’s reliance on non-federal sources to interpret provisions of the U.S. Constitution. Part III argues that the Supreme Court’s use of territorial history in Bruen was inconsistent with its past practice, that territorial history is especially likely to reflect federal constitutional meaning because the territories were subject to the federal Bill of Rights long before those rights were incorporated against state governments, and that a text, history, and tradition methodology should accord territorial laws and practices a meaningful role.

This seems right to me as a matter of originalist methodology.  I don't see why practice in the territories wouldn't be relevant, assuming it was understood (as I think it was, prior to the Insular Cases) that the Constitution applied to the territories in the same way that it applied elsewhere.

New Book: "Scalia" by James RosenMichael Ramsey

New book, forthcoming next week: Scalia: Rise to Greatness, 1936 to 1986, by James Rosen (Regnery Pub. March 7, 2023).  Here is the book description from Amazon:

The bestselling historian and journalist James Rosen provides the first comprehensive account of the brilliant and combative Supreme Court justice Antonin Scalia, whose philosophy and judicial opinions defined our legal era.

With SCALIA: Rise to Greatness, 1936–1986, the opening installment in a two-volume biography, acclaimed reporter and bestselling historian James Rosen provides the first comprehensive account of the life of Justice Antonin Scalia, whose singular career in government—including three decades on the Supreme Court—shaped American law and society in the twenty-first century.

Decades in the making, Rise to Greatness tells the story of the kid from Queens who became the first Italian American on the Court and one of the most profoundly influential figures of our time. This volume takes us from Scalia’s birth to his ascension to the Court, providing a fresh and probing look at his Catholic upbringing and education; his stints in academia and published works, some of them obscure and long-overlooked; and his service in the Nixon and Ford administrations, when Scalia played a central role in reforming the U.S. intelligence community and in the approval of sensitive covert operations.

Deeply researched and based on unparalleled access to documentary and personal sources, and written with an intellectual rigor and wit befitting its subject, Rosen’s narrative reads like a novel while presenting startling new insight into the life, mind, career, faith, and legacy of the man whom family and friends called “Nino.” The result is a compelling portrait of an American legend with whom the author personally corresponded, broke bread, drank wine, and braved the streets of the capital as a (nervous) passenger in the justice’s famously speedy BMW.

Rosen has unearthed previously unpublished writing from every phase of Scalia’s career, including private Supreme Court emails, and has interviewed Scalia’s family, classmates, students, colleagues from the Nixon, Ford, and Reagan administrations, priests, poker buddies, hunting companions, and fellow judges and justices.

Rise to Greatness is a landmark of modern biography, a rich and moving study, accessible to lay readers, that brings to life a towering figure of American history. It is the book Scalia fans, and all citizens interested in history and the law, have long awaited.

And a reasonable price at $29.99 (at least compared to academic press books).

(Via Ed Whelan at NRO Bench Memos, who says he "very much enjoyed reading" it and promises a review soon).

William Carter: The Second Founding and Self-IncriminationMichael Ramsey

William M. Carter, Jr. (University of Pittsburgh - School of Law) has posted The Second Founding and Self-Incrimination (Northwestern University Law Review, forthcoming 2023) (72 pages) on SSRN.  Here is the abstract:

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversarial system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors.

The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the Nation’s Second Founding following the Civil War. Although not part of the formal polity that ratified the original Constitution and Bill of Rights, enslaved persons’ understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine first-person slave narratives in order to draw upon enslaved persons’ experiences for insights into self-incrimination doctrine.

This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court’s self-incrimination jurisprudence. The Article then discusses the Nation’s Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article next examines enslaved persons’ views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons’ own first-person narratives. This evidence reveals that the Supreme Court’s cramped and formalistic approach to self-incrimination is inconsistent with the post-Civil War Constitution’s purposes and values. The Article then concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons, and calls for courts to take such evidence into account in interpreting the privilege against self-incrimination.

Ilya Somin on Textualism and the Major Questions DoctrineMichael Ramsey

At Volokh Conspiracy, Ilya Somin: A Textualist Defense of the Major Questions Doctrine.  From the introduction:

Over the last few years, the once-relatively obscure "major questions doctrine" (MQD) has become increasingly controversial, as the Supreme Court has relied on it in several major cases, such as  the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. If yesterday's oral argument is any indication, the Court may also use it to strike down the Biden Administration's massive loan forgiveness plan.

The doctrine requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" If such a broad delegation of power isn't clear, courts must rule against the executive's claims that it has the authority in question. Critics often argue that this rule is at odds with textualism in statutory interpretation—a theory to which many conservative judges are committed. For example, in her forceful dissent in West Virginia v. EPA, Justice Elena Kagan complains that MQD has become "a get-out-of-text free card." If the otherwise-best interpretation of a given text is that it grants the executive sweeping powers, why should MQD overturn it?

But, contrary to popular belief, there is in fact a textualist justification for MQD. ...

And from later on:

[C]ontextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and increasingly dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to "modernize and improve" the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.

As a semantic matter "divorced from context," the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to "modernize and improve." By contrast, if the contractor had taken the much more limited step of replacing a few decaying floor boards, most people would agree his actions were properly authorized, even though the agreement doesn't specifically mention such replacement.

The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to "waive or modify" regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics "divorced from context" suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.

I think there's something to this argument -- it's a version of the no-elephants-in-mouseholes idea.

More broadly, I've become increasingly convinced that something like the MQD is needed to constrain executive power.  It's puzzling to me that scholars, particularly on the left, who purport to be concerned about excessive executive power are so negative on the MDQ.  The current state of executive overreach arises mostly from the combination of voluminous vague federal legislation and aggressive executive branch lawyering.  It has pushed us very far from the Constitution's design.

Brannon Denning & Glenn Harlan Reynolds: Five Takes on New York Rifle & Pistol Association, Inc. v. BruenMichael Ramsey

Brannon P. Denning (Samford University - Cumberland School of Law) & Glenn Harlan Reynolds (University of Tennessee College of Law) have posted Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen (35 pages) on SSRN.  Here is the abstract:

New York Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in over a decade since its decision in District Columbia v. Heller. It was one of the most highly anticipated case of the 2021-22 Term and serves as the first indication of how the addition of Justices Gorsuch, Kavanaugh, and Barrett might alter the trajectory of the Court’s Second Amendment case law.

If Heller could have been characterized as a “minimalist” opinion at the time of its decision and McDonald v. Chicago as an almost overdetermined extension of Heller by its application to the states through incorporation, Bruen tends towards maximalism, dramatically expanding the scope of the Second Amendment and threatening a variety of gun control laws that lower courts had upheld while the Court stayed its hand. Given that there is now a solid majority (if not a super-majority) willing to support a robust Second Amendment, whatever Bruen’s ultimate scope, it is unlikely that the Court will be as quiescent as it was in the decade following Heller.

This essay offers some preliminary observations about both the opinion itself, as well as its likely effects, some of which are starting to manifest. Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment had been suspect—assign the opinion to Justice Thomas?

Takes two and three concern Justice Thomas’s substitution of text, history, and tradition for tiered-scrutiny; and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered-scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered-scrutiny in favor of a textual, historical, and traditional inquiry. In order to make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to “retcon” Heller—reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who have to rehear cases involving dozens of issues delineating the scope of the Second Amendment settled over the last fifteen years since Heller.

Take Four wonders about the status of what we earlier termed “the Heller safe harbor”—the list of “presumptively lawful” regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heighted by Bruen’s text-history-tradition only approach.

Finally, in keep with our longstanding interest in lower court reception of destabilizing, possibly transformative Supreme Court opinions, we look at the reaction of the lower courts, post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea-change it portends and are attempting to implement it in good faith. Although as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious; and we detect in some an “uncivil obedience” intended to raise the Supreme Court’s costs of holding the line laid down in Bruen. A brief conclusion follows.

Sherif Girgis: Living TraditionalismMichael Ramsey

Sherif Girgis (Notre Dame Law School) has posted Living Traditionalism (59 pages) on SSRN.  Here is the abstract:

Today’s Supreme Court is committed to originalism—the idea that constitutional law is fixed at ratification. But it often rests decisions on the post-ratification practices of other actors—Presidents, Congresses, or states. Call this method “living traditionalism”: “traditionalist” because it looks to political traditions, and “living” because the traditions postdate ratification. The method is ubiquitous but undertheorized, in part because its distinctness from “liquidation”—a variant of traditionalism that is consistent with originalism, but that rarely drives any cases—has not been understood.

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which turns out to include scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (for the right later on). Yet today’s Court is at risk of doing that, making constitutional law turn on accidents of history: whatever practices happened to exist when the Court first addressed an issue. Finally, the Article proposes solutions to this predicament. Where the Court does not simply retreat from living traditionalism, it should write living-traditionalist rulings so that they expire when practices change, or else modify stare decisis to make these cases easier to overturn. And political actors for their part can change traditions—including by resisting Court precedents encasing old traditions—through “soft” and “hard” law options that caselaw invests with constitutional significance. Politics could thus shape sundry individual-rights and separation-of-powers doctrines. Absent such reforms, the Court’s application of living traditionalism will prove increasingly at odds with any plausible rationale for using the method at all.

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

There was an element of this sort of traditionalism in Justice Scalia's approach (see here, Part I.C.), which undertheorized as the articles says -- in particular it was never entirely clear whether Scalia used it as a way to establish original meaning or as a supplement.

Mike Pence Does Not Have Legislative Immunity [Updated]Michael Ramsey

Some commentators (such as Eric Segall) say originalism can't resolve modern contested issues.  I say it resolves this one:

The House Committee investigating the January 6, 2021, events issued a subpoena to former Vice President Mike Pence relating to his actions then (when he was Vice President).  Pence is resisting the subpoena under the Constitution's speech or debate clause, which gives immunity for certain legislative actions.  Glenn Reynolds, Jonathan Adler, and Josh Blackman have thoughts (as does Mike Luttig, behind the New York Times paywall, but his thoughts are discussed by the others).

The speech or debate clause (Art. I, Sec. 6) provides:

The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses ... ; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

On its face, this clause applies only to Senators or Representatives.  Pence is not a Senator or Representative. I'm not aware of any founding-era sources suggesting that legislative immunity extended to anyone other than Senators and Representatives, and particularly not anything suggesting it extended to the Vice President.

I agree with Professor Reynolds (making the case on his interesting new substack that Pence has a plausible claim) that (a) the Vice President serves some legislative functions, and (b) the Supreme Court has sometimes adopted a functional approach to the speech or debate clause, as in Gravel v. United States (1972), when the Court extended the immunity to a legislative aide.  But in an originalist analysis neither of these points matter.  The text provides immunity specifically to Senators and Representatives, not generally to people exercising legislative functions.  The framers could have written that "no one carrying out a legislative function in either House shall be questioned..." or "neither Senators, Representatives nor the Vice President shall be questioned ..."   They didn't.  As to the Court's functional analysis, that's how we lost our way in the first place.  Yes, the limitation to Senators and Representatives is formalistic, but as Justice Scalia wrote (in A Matter of Interpretation): "of course it's formalistic! The rule of law is about form.  ... It is what makes a government a government of laws and not of men."

Some may say that my analysis is really textualism, not originalism.  There's something to this point, but not much.  The touchstone of most modern originalism, going back to Justice Scalia, is the original meaning of the text.  If the text is clear and uses language accessible to modern ears, that is the end of the matter, at least when enactment-era context doesn't supply a strong reason to think otherwise.  Here there's no enactment-era context raising doubts about the evident meaning of the text, so the text's natural meaning controls.  That's how text-based originalism works.

To nonoriginalism, in contrast, the text is just one piece of evidence.  Other considerations come into play as well, including perhaps more abstract constitutional values and practicalities such as the need to protect people serving legislative functions.  That's why Professor Reynolds is right that under modern approaches Pence's argument is at least somewhat plausible.  But as a matter of original meaning, it isn't.

UPDATE:  From a further post by Jonathan Adler at Volokh Conspiracy, Michael McConnell has a similar view to mine as to Pence's (non)immunity, and Professor Adler seems to be coming around to it as well.

Eric Segall on Richard Fallon on Selective OriginalismMichael Ramsey

At Dorf on Law, Eric Segall: Professor Fallon on Selective Originalism and Precedent (commenting on this article).   Some excerpts:

One of Fallon's important contributions is a descriptive one. As he says, we "do not have an originalist Supreme Court, committed to deciding all or nearly all cases based on original constitutional meanings, but at most a selectively originalist one." Furthermore, Fallon argues that "selective originalism is dishonest and hypocritical and ought to be abandoned."

To support his claims, Fallon points to numerous areas of constitutional law where the Court's decisions are decidedly non-originalist. Readers of my book Originalism as Faith will recognize many but not all of these areas. But before I list those, here is the core of Fallon's descriptive claim:

Selective originalism is a practice of constitutional decision-making in which putatively originalist Justices of the Supreme Court sometimes ignore or subordinate their avowed originalist premises and instead base their decisions on prior judicial precedents without regard to whether those precedents are defensible on originalist grounds, are binding as a matter of stare decisis, or are reasonably left unexamined based on the principle that the Court should normally decide only those issues framed by the parties’ briefing.

Fallon points to the following constitutional law areas where the so-called originalist justices (including the late Justice Scalia) have not engaged in an originalist analysis to reach the results they advocate:

1) Standing

2) The Power of Congress to Create Non-Article III Courts

3) Freedom of Speech

4) Equal Protection and Equality Norms Generally

5) Congress's Enforcement Powers Under the Reconstruction Amendments

6) Fourth Amendment Cases

7) Takings Cases

Of course, a reasonable response to this account by originalists is that the Court's many non-originalist precedents were decided before the Supreme Court had a substantial contingent of self-identifying originalist justices. But there are at least three responses to that suggestion. ...

To repeat my comments on Professor Fallon's article (which generally go to much of Professor Segall's post as well):

I agree judges should not be selective originalists, in the sense of arbitrarily applying originalism some times and not other times.  But I think criticisms in this direction may overstate for at least two reasons.

First, originalist judges act in a world of widespread nonoriginalist precedents and assumptions.  Judges don't have the resources or institutional capacity to reconsider the foundations of every line of doctrine that comes before them, particularly when the parties take the nonoriginalist foundations for granted.  Moreover, most if not all originalist  judges believe themselves constrained by precedent, including nonoriginalist precedent, to a substantial extent.  It's true that originalist judges (and originalism generally) could do more to develop a fully articulated approach to precedent.  But very often when one sees originalist judges using nonoriginalist reasoning and reaching nonoriginalist results, it stems from the complications of adjudication against the backdrop of decades of nonoriginalist decisions.

Second, it may often be that what is described as an originalist judge using nonoriginalist reasoning is, on closer examination, instead an originalist judge using weak originalist reasoning that the critic finds unpersuasive.  For example, it's very commonly said that the Court's decisions on state sovereign immunity are nonoriginalist (principally because they seem to diverge from the text and purpose of the Eleventh Amendment).  However, at least in Justice Scalia's view, those decisions rested on a background understanding in the founding era that the "judicial Power" vested by Article III didn't extend to suits against a sovereign without its consent.  (I discuss this point in my paper on Scalia's constitutional textualism, here, Part I.A).  That's an originalist claim.  It may be an unpersuasive one.  But that just means it's bad originalism, not that it's nonoriginalist.

To be sure, I agree that it's sometimes unclear why judges use originalism in some cases and not others, and that this is a problem.  (It seems to me this is at least a much a problem for nonoriginalist judges who use originalist arguments when it suits them).  But I think it's important not to overstate the scope of the problem.

Aaron Nielson & Christopher Walker: The Early Years of Congress's Anti-Removal PowerMichael Ramsey

Aaron L. Nielson (Brigham Young University - J. Reuben Clark Law School) & Christopher J. Walker (University of Michigan Law School) have posted The Early Years of Congress's Anti-Removal Power (American Journal of Legal History, forthcoming) on SSRN.  Here is the abstract:

Judges and scholars have long debated whether the Constitution provides the President with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the President’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the President to remove principal officers—even those whose views are out of the step with the President’s—because the President cannot know whether the Senate will consent to a preferred replacement. This is an example of what we dub Congress’s anti-removal power: Even if the President can remove, a motivated Congress can discourage the President’s use of that power.

In Congress’s Anti-Removal Power, we use game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argue that such tools have been a longstanding feature of interbranch relations. In this Essay, we focus on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but also is a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. We thus conclude—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding era thought and practice.

The President's Power to Support UkraineMichael Ramsey

In an account of President Biden's recent dramatic visit to Ukraine, the Wall Street Journal reports:

Standing beside Mr. Zelensky with American and Ukrainian flags, Mr. Biden pledged unwavering support for Ukraine and its sovereignty and territorial independence. He wore a suit and a striped tie bearing Ukraine’s blue and yellow colors.

“I thought it was critical that there not be any doubt, none whatsoever, about U.S. support for Ukraine in the war,” Mr. Biden said.

The visit was an overt and public U.S. challenge to Mr. Putin. ...

Of course, nothing the President did or said created any binding obligations on the United States.  But, as an analysis at Real Clear Politics concluded:

His presence sent a message of defiance to Putin most directly and a cherished sign of resolve and empathy for the people of Ukraine. 

And it carries risks:

The personal nature of the president’s rebuke to Putin is meanwhile likely to trigger a response from a ruthless leader who has shown no mercy to civilians and a cruel indifference to the value of human life – Russian as well as Ukrainian. One potential way Biden’s visit could backfire is that it could bolster Putin’s claim that he is really fighting a war against the West rather than an independent sovereign nation – a framing that is popular among some Russians and is one Biden has tried to avoid.

My question is: where does the U.S. President get the constitutional power to send this powerful, potentially risky and perhaps controversial message on behalf of the United States?  I've not heard any constitutional objections to it.  But if, as a number of scholars argue (for example, Professor Julian Mortenson, here), that the President has only the foreign affairs powers listed in Article II, Sections 2 and 3, that list looks unpromising.  President Biden was not appointing (or even acting through) U.S. ambassadors, receiving foreign ambassadors, making treaties, or doing anything related to his power as commander in chief of the military.  So far as I'm aware there's no statute authorizing his actions (and as the Journal article goes on to say, Congress is actually somewhat divided on the matter).  I don't see how Professor Mortenson and others who agree with him could think the President's trip, and the  message it sent, was within the President's constitutional authority.

My answer (which won't surprise regular readers) is that the President gets the authority from Article II, Section 1.  That section vests the President with the "executive Power."  As I and others have argued at length (see here), leading commentators in the eighteenth century described executive power as including foreign affairs power.  Of course the Constitution allocated quite a bit of foreign affairs power away from the President.  But (we argue) foreign affairs powers not allocated elsewhere remain with the President as part of the Article II, Section 1 executive power.  Most importantly, this category includes the power to speak for for the United States, and communicate with foreign powers, on international matters.

As a result, President Biden's visit and the message it sent were entirely within the President's constitutional power.  But only under the theory of executive foreign affairs power.

Robert Leider: The Modern MilitiaMichael Ramsey

Robert Leider (George Mason University - Antonin Scalia Law School) has posted The Modern Militia (57 pages) on SSRN.  Here is the abstract:

Twentieth-century legal reforms of the military have obscured the distinction between an “army” and a “militia.” For the Framing generation, the distinction between these two kinds of land forces was sharp. An “army” consisted of regular, professional troops, while the “militia” comprised citizens who would perform temporary military service when needed. The twentieth-century reorganization of the military, however, brought nonprofessional soldiers within the umbrella of the U.S. Armed Forces. As a result, most now view the standing army as central to our military system and the militia as anachronistic and largely extinct. Further, most believe that contemporary American society has jettisoned the Framers’ fears of standing armies.

This article reexamines the modern relevance of the militia system. The prevailing view presumes that the traditional army/militia divide concerned whether the country should rely on federal troops or state troops for national defense. But this federalism account is profoundly mistaken. The core of the Framing-era debates involved whether to professionalize the military. The Framers were deeply skeptical of professional soldiers, regardless of whether those soldiers were employed by the federal government or a state government. They preferred that the bulk of American military power reside with civilians. These civilians would perform military service during emergencies but would otherwise live normal, non-military lives.

Viewed through the proper lens, the militia - that is, the nonprofessional soldiery - remains a crucial part of the U.S. military system. Today, nonprofessional soldiers perform three principal tasks, which are similar to those that militiamen performed at the Framing. First, nonprofessional soldiers provide a means to connect the civilian community to the regular military. Second, nonprofessional soldiers supplement the regular forces in emergencies. Third, nonprofessional soldiers provide local forces for domestic peacekeeping to aid civil authorities when necessary because Framing-era norms against use of the professional military for domestic law enforcement persist.

In modern times, we denote the militia with different terminology - “reservists,” “Guardsmen,” and “registrants” (or “conscripts”). But while the labels have changed, the functions of nonprofessional soldiers have not. The militia system remains a vital institution.

Mary Sarah Bilder: The Influence of John Adams’s A Defence on the Constitutional ConventionMichael Ramsey

Recently published, in the (new) Journal of American Constitutional History, Mary Sarah Bilder (Boston College): The Soul of a Free Government: The Influence of John Adams’s A Defence on the Constitutional Convention.  Here is the abstract: 

Contrary to the conventional modern view, John Adams’s A Defence of the Constitutions of Government of the United States of America (1787) was deeply influential on the Constitutional Convention. Adams’s constitutional system, though not original with him, provided a useful synthesis that emphasized balance as a working principle, checks as the operational corollary, and institutional structures reflecting the many, the few, and the one. Through the contemporaneous serialization in the Pennsylvania Mercury beginning May 11, 1787, this system and Adams’s conceptual terminology were read by key Framers and infused the Convention debates. The debate over the Virginia plan responded to Adams’s structural arguments and revealed the instability of the word “monarchy.” During the subsequent debate over the Senate, Adams’s ambivalence over “aristocracy” led to recognition of the new American aristocracy of white slaveowners. Finally, the Committee of Style and Arrangement draft, despite abandoning Adams’s vocabulary, closely paralleled his structural recommendations. The apparent irrelevancy of the Defence to modern scholars arose, ironically, from its crystallization of then-conventional wisdom, the very feature that resonated with so many delegates and generated its significant influence on the Convention. Adams’s Defence thus provides one more example that the Convention’s decisions cannot be understood without including the larger Framing generation.

Originalism Must Necessarily Be Applied Selectively, and Not in Every CaseDavid Weisberg

A recent post by Prof. Michael Ramsey notes that Prof. Richard Fallon has published a paper, entitled “Selective Originalism and Judicial Role Morality,” with an abstract that asserts: “The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that … [i]n large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings.” 

Prof. Ramsey makes two responses.  First, much of the precedents and assumptions that originalist Justices deal with are non-originalist in nature, and Justices who feel bound by precedent therefore sometimes put originalism aside.  Secondly, some opinions that seem to abandon originalism may simply be unpersuasive originalism, rather than instances of non-originalism.

With great respect, I think Prof. Fallon is wrong to think that one would expect originalist Justices to apply originalism in every case interpreting the Constitution, and I think Prof. Ramsey is wrong to think that the selective application of originalism can be explained, e.g., by noting that even originalist Justices must deal with non-originalist precedents.  What is true, I submit, is that originalism must as a matter of logical necessity be applied only in very specific circumstances, and not in every case.

Consider two constitutional texts:

“[T]he right of the people to keep and bear Arms, shall not be infringed.”

“No Bill of Attainder … shall be passed.”

I submit there is no reason to believe that any of the words or phrases in the first text have a meaning today that differs from the meaning they had when the 2nd Amendment was adopted in 1791.  All those words are used today.  Trees can bear fruit; people can bear arms.  Moreover, if one presumes that those words and phrases all might have current meanings different from their so-called time-dated meanings, bad things happen. 

Justice Scalia entertained just such a presumption in his “legacy opinion” for the majority in D.C. v. Heller, 554 US 570 (2008).  The presumption is manifested, e.g., in his discussion of the meaning of “Arms”.  (554 US at 581.)  He immediately cites Dr. Johnson’s Dictionary, published in 1773, and refers to the definition of “arms” contained in that work. He similarly refers to that same dictionary to ascertain the meaning of “keep” (554 US at 582), and “bear” (554 US at 584).

If one presumes that the meaning of the words and phrases in the 2nd Amendment must be ascertained with reference to literary materials published roughly contemporaneously with that amendment, that presumption generates what I have called (here) the Paradox of Originalism:     

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

If Justice Scalia had conscientiously and consistently applied his original-public-meaning methodology, he never would have completed his Heller opinion, because he would have had to ascertain, using contemporaneous literary materials, the meaning of the words in Dr. Johnson’s definition of “arms,” and then he would have had to ascertain, using contemporaneous literary materials, the meaning of the words that define the words in Dr. Johnson’s definition, etc.,  ad infinitum.   The presumption Justice Scalia entertained generates an infinite regress, and that’s a bad thing.

Now consider the phrase “Bill of Attainder.”  That is a phrase that is never used today, except by lawyers, judges, and scholars who have some special interest in construing Article I, Section 9, Clause 3 of the Constitution.  I’d guess that law school graduates in 2023 will not have spent one second engaged in classroom discussions of bills of attainder.  It’s probably been more than two hundred years since any legislator proposed anything called a “bill of attainder.”  So, because the phrase has long been virtually absent from legal discourse, we can today have no clear idea what the phrase meant in 1789.  Therefore, it makes perfect sense to resort to literary materials in use around the time the Constitution was adopted.

The difference between the two instances is this: we may properly rely on contemporaneous literary materials regarding “Bill of Attainder” because that phrase has fallen almost completely out of use—it is an historic relic.  So, we rely on contemporaneous materials not because the phrase was made part of the Constitution long ago in 1789, but because today we do not have any clear idea what it means, and we therefore certainly do not know what it meant in 1789.  In contrast, nothing in the operative clause of the 2nd Amendment—not one word or phrase—is not regularly used today.  Therefore, using contemporaneous literary materials to define words and phrases in the operative clause can be justified only if one adopts the presumption that, due to the Constitution’s antiquity, every word or phrase might have a time-dated meaning different from current meaning.  And it is precisely that presumption that generates the Paradox of Originalism.

In sum, the originalism practiced by the late Justice Scalia must necessarily be used selectively.  It may properly be used only when we encounter a word or phrase in the Constitution that has fallen virtually into desuetude (“Bill of Attainder”) or has a meaning that on its face must differ radically from current meaning.  (E.g., “high Crimes and Misdemeanors” in Article II, Section 4.  In today’s legal context, a misdemeanor is low on the scale of offenses; a “high misdemeanor” is, to us, an oxymoron.)  If, in contrast, all the words and phrases in a constitutional text are familiar to us and readily understandable in their context, an application of Justice Scalia’s version of originalism generates an infinite regress.    

ADDED:

One last point: If the methodology employed by Justice Scalia in Heller generates an infinite regress, what kind of argument should be used to counter Justice John Paul Stevens’ (flawed) understanding of the 2nd Amendment?  The simplest, most convincing argument has nothing to do with Dr. Johnson’s dictionary.  Rather, it is this: If Justice Stevens’ understanding of the amendment is correct—that is, if the amendment is equivalent to: “The right of the people to keep and bear Arms, while they serve in the well regulated Militia of a State, shall not be infringed”—then why didn’t the drafters settle on precisely that language?  Surely, they had the skill to so formulate the amendment if they wished to do so.  That they did not do so indicates very clearly that that formulation is not what they had in mind. 

Roberta Lea Brilmayer: Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article IIIMichael Ramsey

Roberta Lea Brilmayer (Yale Law School) has posted Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards? (52 pages) on SSRN.  Here is the abstract:

Article IV’s Full Faith and Credit Clause is likely to become the next battle ground in the war over abortion. Texas and other anti-abortion states have created civil damages actions for assisting in obtaining an abortion and are expected to apply their laws extra-territorially. Sometimes referred to as “vigilante” statutes, state laws modeled on the Texas legislation provide civil damages awards to any person who can prove the defendant’s involvement in an abortion, regardless of the plaintiff’s lack of connection to it. The choice of law issues in the extraterritorial applications of anti-abortion laws are by now familiar. What has not been considered is whether sister states would be required to enforce the judgments that result.

The issue is urgent. Since Dobbs was decided, pro-choice states have been studying different strategies for protecting persons subject to judgments obtained in states with these anti-abortion laws. Connecticut has adopted a “claw back” statute that would allow persons ordered to pay damages under these anti-abortion laws to sue in Connecticut to recover the judgment paid, with attorney’s fees. This strategy is unprecedented, but likely to be copied by other pro-choice states. There is no case law on its constitutionality, and no mention of the issue in the secondary literature.

There are several familiar exceptions to the obligation to give full faith and credit to sister-states laws that would justify this result. The most important basis for refusing the enforcement of sister-state judgments is found in the wording of Article IV, itself. The Full Faith and Credit Clause applies only to sister-state judgments that result from “judicial proceedings”. “Judicial” is a well-known term of art, due to its interpretation in Article III, which speaks of “judicial power”.

The drafting history of Articles III and IV strongly supports the conclusion that the word “judicial” should be interpreted identically in those two articles. Thus, in order to qualify for federally guaranteed interstate enforcement under Article IV a dispute must satisfy the Article III “case or controversy” requirement. But the disputes brought under the Texas civil damages law do not qualify as “judicial” under Article III. The reason is their lack of any injury in fact to the plaintiff, a “standing” requirement solidly grounded in the Supreme Court’s decisions interpreting Article III.

The Full Faith and Credit Clause is therefore not offended by Connecticut’s unwillingness to enforce its “vigilante” awards. Only an a-historical and a-textual analysis of Full Faith and Credit would require the enforcement of such judgments.

Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure ActMike Rappaport

Recently, I published a piece on Chevron and the original meaning of the Administrative Procedure Act.  While most originalist work has focused on the Constitution, there is some work on statutory originalism in general and on the APA in particular.  See, e.g. this piece by Evan Bernick.  

My article explores whether Chevron can be reconciled with the original meaning of the APA.  In particular, it argues against Cass Sunstein and Ron Levin, both of whom defend Chevron as not inconsistent with the APA's original meaning.  While I acknowledge there are a couple of plausible takes on the original meaning of the APA, none of them support Chevron deference.  At most, they support a narrower type of deference.   Here is the abstract: 

Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act by Michael B. Rappaport 

The Chevron doctrine, which requires courts to defer to an agency’s interpretation of a statute that it administers, is a central component of the administrative state. But in recent years, the doctrine has been strongly criticized for being inconsistent with the original meaning of the Administrative Procedure Act (“APA”).

In a recent article, Cass Sunstein defends Chevron against this charge, arguing that the original meaning evidence is equivocal. Sunstein maintains that one cannot clearly reject Chevron and therefore the Supreme Court should not overturn the case.

In this Article, I criticize Sunstein’s defense of Chevron and argue that Chevron is plainly inconsistent with the APA’s original meaning. Some commentators reject Chevron on the ground that the APA does not allow for agency deference. While I agree with these commentators that this is the best reading of the APA, I also agree with Sunstein that this is not the only possible reading of the statute. But this lack of clarity about the APA does not help Sunstein’s argument. Even if one interprets the APA’s text as Sunstein does, this still does not justify Chevron deference. Instead, it results in deference for mixed questions but no deference for pure questions of law. This interpretation would involve a narrower type of deference that would significantly trim the Chevron doctrine.

The Article then reviews and criticizes a more recent defense of Chevron deference by administrative law scholar Ronald Levin. While Levin presents additional arguments for Chevron deference, I conclude that these arguments are no more successful than Sunstein’s.

James Ely: The Direct Tax Clauses RevisitedMichael Ramsey

James W. Ely (Vanderbilt University - Law School) has posted ‘One of the Safeguards of the Constitution:’ The Direct Tax Clauses Revisited (Brigham-Kanner Property Rights Journal, Volume 12) (79 pages) on SSRN.  Here is the abstract:

This article investigates the direct tax clauses of the Constitution, which require that such taxes levied by Congress must be apportioned among the states according to population. In practice, the apportionment rule was cumbersome and discouraged reliance on direct taxes as a source of federal revenue. Proposals for a federal tax on wealth have triggered renewed interest in the direct tax provisions. This article examines the history and purpose of the direct tax clauses, and takes a new look at the heading judicial opinions interpretating these provisions.

The framers of the Constitution were well aware of the need for Congress to raise revenue independently of the states. At the same time, the United States had just emerged from the Revolutionary War, a struggle caused in large part by a dispute over the power to impose taxation. Consequently, the framers were also concerned to prevent abuses of the authority to levy taxes. They were particularly fearful of direct taxation which fell squarely on the party being taxed, and so the Constitution restricted reliance on such forms of taxation by the apportionment requirement. The framers envisioned that Congress would primarily impose indirect tax on consumable items, and reserve any direct taxes for emergencies. Clearly they regarded the restriction on direct taxation was important. It bears emphasis that the apportionment rule is the only restriction on Congress to be placed twice in the Constitution.

The crucial distinction was between direct and indirect taxation. The Constitution itself offers meagre guidance and debates at the constitutional convention and state ratifying convention were sketchy. At issue in Hylton v. United States, a contrived case submitted on a set of fictitious facts, was the validity of a congressional tax on carriages, The Court found the levy to be indirect and thus constitutional without apportionment. The three justices who authored opinions, however, in problematic dicta, adopted a narrow understanding of direct taxes, suggesting that the only direct taxes were capitation taxes and taxes on land. Although these questions were not before the Court, this dicta was treated as a definitive interpretation of the direct tax clauses throughout much of the nineteenth century.

Challenges to the 1894 income tax caused the Supreme Court to make a fresh examination of the history and purpose of the constitutional limitations on direct taxes. In Pollock v. Farmers’ Loan & Trust Company a divided Court struck down the income tax as an unapportioned direct tax. Adopting a boarder reading of the constitutional provisions, it reasoned that taxes on personal property as well as on land, and the income therefrom, were direct. The Sixteenth Amendment, adopted in 1913, authorized Congress to levy income taxes without apportionment, but did not abrogate the direct tax clause with respect to other levies..

The historical record points to the conclusion that a tax on existing wealth is a direct tax and therefore unconstitutional unless apportioned among the states according to population.

Andrew Coan & David Schwartz: The Original Meaning of Enumerated Powers [Updated]Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) & David S. Schwartz (University of Wisconsin Law School) have posted The Original Meaning of Enumerated Powers (70 pages) on SSRN.  Here is the abstract:

The powers of Congress are limited to those enumerated in the Constitution and must not be construed as the equivalent of a general police power. This doctrine of “enumerationism” is the linchpin of a multi-decade conservative assault on the broad conception of federal powers recognized by the Supreme Court since 1937. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original public meaning of the Constitution. Indeed, it is difficult to think of a stronger—or broader—consensus on an important question of original meaning.

This Article challenges that consensus. Despite its wide acceptance, the originalist case for enumerationism is remarkably weak and undertheorized. At the same time, enumerationists have largely ignored strong arguments that the original public meaning of enumeration was indeterminate. The constitutional text nowhere says that the federal government is limited to its enumerated powers. To the contrary, several provisions—the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—could plausibly be read to support a congressional power to address all national problems. The historical context of the founding era is similarly ambiguous. Many readers certainly understood the Constitution to presuppose some form of enumerationism, but many did not.

If these arguments are correct, enumerationism falls into the “construction zone,” where history, judicial precedent, and other sources fill the gaps in original public meaning. It is history and precedent, not original meaning, that supply the strongest arguments for enumerationism. Yet the history of enumerationism is complex and fraught with contestation. For most of that history, Congress has routinely legislated as if it possessed the power to address all national problems. The Supreme Court has generally followed suit, embracing enumerationism in theory while circumventing it in practice. A constitutional construction that followed this traditional approach would pose no substantial obstacle to any important federal legislation.

The authors presented this paper at the 2023 Originalism Works-in-Progress conference in San Diego last weekend (with commentary by Randy Barnett).

The paper did not convince me of its conclusions, but it did convince me of the need for a comprehensive originalist defense of enumeration (to be written by someone other than me, though I might have a few preliminary thoughts in a separate post).

UPDATE:  I'm reminded that Kurt Lash had this excellent essay a while ago, responding to an earlier critique of enumerated powers by Richard Primus: The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration (124 Yale L.J. F. 180 (2014)).

Lorianne Updike Toler: The Consensus ConstitutionMichael Ramsey

Lorianne Updike Toler (Northern Illinois University College of Law) has posted The Consensus Constitution (68 pages) on SSRN.  Here is the abstract:

Constitutions are written by rule-bound crowds. Although the role of rules in crafting legislation has long been studied, this learning has not yet been fully imported into constitution-writing literature where consensus has emerged as paramount. Yet rules may play an important role in creating consensus as in the U.S. Constitution’s drafting. There, a very high level of consensus was achieved, in large part because of the Constitutional Convention’s formal and informal rules. These facilitated a culture of deliberation, trust, vulnerability, change, and ultimate buy-in.

To understand how formal and informal rules facilitated consensus in Philadelphia, it is first necessary to un-father the U.S. Constitution. Constitutions are creatures of compact, and by nature involve many coordinated contributions. The U.S. Constitution is no exception. Yet sixth graders to Supreme Court Justices still consider James Madison the father of the Constitution despite that his parentage sounds more in lore than logic. A careful review of recent historiography, Madison’s own writings and notes of the Constitutional Convention, and new analytics tools reveal Madison to simply be one of a cast of characters who brought about the Convention, the Virginia Plan, and the ultimate Constitution. Immediately post-Convention, Madison considered himself and the Constitution a failure, and disclaimed any singularly unique role in its framing.

Although there have been many histories of the Constitution and the Convention, this article is the first to focus on its procedure, or how the US Constitution came into being and the Convention’s corresponding cultural history. In providing a procedural and cultural history of the US Constitution, it will outline Madison’s more modest role and emphasize those rules and constraints that cultivated a distinct, cohesive culture among the delegates, paving the way for constitutional consensus.

Gregory Ablavsky & Tanner Allread: How Indigenous Peoples Debated the U.S. ConstitutionMichael Ramsey

Gregory Ablavsky (Stanford Law School) & W. Tanner Allread (Stanford University - Department of History) have posted We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution (Columbia Law Review, forthcoming) (74 pages) on SSRN.  Here is the abstract:

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates.

This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore its significance for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the early republic, Native peoples both invoked and critiqued the document as they faced Removal.

This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and post-constitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.

Christine Kexel Chabot: The President's Approval PowerMichael Ramsey

Christine Kexel Chabot (Loyola University Chicago School of Law) has posted The President's Approval Power (Fordham Law Review, forthcoming) (28 pages) on SSRN.  Here is the abstract:

This Article introduces the President’s approval power as it was originally understood in the United States. Leading proponents of a unitary executive President have asserted that her absolute power to control subordinate officers includes power to veto or approve subordinates’ discretionary actions before they take effect. This Article reconsiders approval’s purportedly unitary function and presents previously overlooked evidence of the originalist foundations of a presidential approval power. My comprehensive analysis of every public act passed by the First Federal Congress shows that the Founding generation never understood Article II to grant the President general authority to approve subordinates’ decisions. Approval was instead a permissive power that the First Congress withheld in a vast majority of statutes and granted in only a handful of laws. Even when statutes granted the President or superior officers an approval power, moreover, they did not gain unitary control. Approval afforded only ex post review without power to force non-removable subordinates to initiate regulatory action implementing superiors’ preferred policies.

This Article also draws on historical practice to situate approval power within the broader unitary executive debate. At the Founding, approval offered a partial measure of accountability that Congress could incorporate when allocating decision-making power within the executive branch. Approval sometimes checked spending and contracting decisions that would be difficult to undo by removing an officer. In other instances approval governed executive adjudications conducted by officials who operated outside formal levers of control established by appointments and removal. The latter category of approval powers provides originalist evidence of an important alternative to formal requirements of plenary removal power. Unitary scholars following Justice Scalia’s Morrison dissent may likewise agree that it is proper for Congress to require approval as an alternative form of supervision for tenure-protected inferior officers and officials farther down the chain of command.

Via Dan Ernst at Legal History Blog. The paper is part of a symposium at Fordham Law School on the unitary executive, also noted by Legal History Blog, here.

Richard Fallon: Selective Originalism and Judicial Role MoralityMichael Ramsey

Richard H. Fallon (Harvard Law School) has posted Selective Originalism and Judicial Role Morality (59 pages) on SSRN.  Here is the abstract:

The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that the Court’s actual reliance on originalist analysis is highly selective. In large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings.

This Article defines and documents the phenomenon of selective originalism. Having done so, the Article then explores the cultural and jurisprudential conditions in which selective original-ism, which typically abets substantively conservative decisionmaking, has developed and now flourishes. The Article criticizes selective originalism for its inconsistency and intellectual dishonesty. But it also explores the obvious question that criticisms frame: Why do the selectively originalist Justices not respond by articulating a more complex doctrine that would seek to justify their only-selective reliance on originalist premises?

We would misunderstand selective originalism, I argue, if we labeled it as disingenuous and probed no more. The self-avowed originalist Justices almost certainly experience themselves as duty-bound to adhere to original meanings in some cases, though not in all. But why? The answer, I argue, contains lessons for originalists and nonoriginalists alike: A clear-eyed appraisal of the Justices’ functions should inspire the conclusion that the Supreme Court, unlike other courts, is a predominantly lawmaking tribunal. It chooses its own cases, typically for the purpose of changing the law (even if only by clarifying it), and its decisions bind all other courts. In light of the Court’s distinctive functions, conclusions about what the Justices ought to do, and indeed have obligations to do, are often best understood as embodying judgments about judicial role morality in addition to law. Though role morality is contestable, it can, in principle, be determinate and binding.

Viewing the Justices as subject to obligations of role morality does more to illumine than to resolve many of the issues that the Court confronts, but it should lead to unanimous agreement on one point: There is no plausible defense for the selective originalism that the current Justices increasingly practice.

At Legal Theory Blog, Larry Solum says: "This paper will be widely read and discussed.  Highly recommended.  Download it while it's hot!"

I agree judges should not be selective originalists, in the sense of arbitrarily applying originalism some times and not other times.  But I think criticisms in this direction may overstate for at least two reasons.

First, originalist judges act in a world of widespread nonoriginalist precedents and assumptions.  Judges don't have the resources or institutional capacity to reconsider the foundations of every line of doctrine that comes before them, particularly when the parties take the nonoriginalist foundations for granted.  Moreover, most if not all originalist  judges believe themselves constrained by precedent, including nonoriginalist precedent, to a substantial extent.  It's true that originalist judges (and originalism generally) could do more to develop a fully articulated approach to precedent.  But very often when one sees originalist judges using nonoriginalist reasoning and reaching nonoriginalist results, it stems from the complications of adjudication against the backdrop of decades of nonoriginalist decisions.

Second, it may often be that what is described as an originalist judge using nonoriginalist reasoning is, on closer examination, instead an originalist judge using weak originalist reasoning that the critic finds unpersuasive.  For example, it's very commonly said that the Court's decisions on state sovereign immunity are nonoriginalist (principally because they seem to diverge from the text and purpose of the Eleventh Amendment).  However, at least in Justice Scalia's view, those decisions rested on a background understanding in the founding era that the "judicial Power" vested by Article III didn't extend to suits against a sovereign without its consent.  (I discuss this point in my paper on Scalia's constitutional textualism, here, Part I.A).  That's an originalist claim.  It may be an unpersuasive one.  But that just means it's bad originalism, not that it's nonoriginalist.

To be sure, I agree that it's sometimes unclear why judges use originalism in some cases and not others, and that this is a problem.  (It seems to me this is at least a much a problem for nonoriginalist judges who use originalist arguments when it suits them).  But I think it's important not to overstate the scope of the problem.

Joel Alicea: Practice-Based Constitutional TheoriesMichael Ramsey

J. Joel Alicea (Catholic University of America — Columbus School of Law) has posted Practice-Based Constitutional Theories (Yale Law Journal, Vol. 133 (forthcoming)) (56 pages) on SSRN.  Here is the abstract:

This Article provides the first full-length treatment of practice-based constitutional theories, which include some of the most important theories advanced in modern scholarship. Practice-based constitutional theories come in originalist and non-originalist—as well as conservative and progressive—varieties, and they assert that a constitutional theory should generally conform to our social practices about law. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less-deferential theory of stare decisis is a less-persuasive theory. Practice-based constitutional theorists would usually see it as a defect if a theory required a significant change in our social practices, such as overruling large swathes of landmark precedents.

But why should we care whether a constitutional theory conforms to our social practices? That normative question requires a normative answer, yet there has been very little scholarship systematically analyzing the justifications often given by practice-based theorists for conforming constitutional theories to our social practices. This Article identifies and examines the primary justifications offered for practice-based constitutional theories: legal positivism, reflective equilibrium, and the stability that comes from an overlapping consensus. In doing so, it also provides the most in-depth analysis of the nature of practice-based constitutional theories to date.

The justifications usually offered by practice-based theorists reflect the influence of H.L.A. Hart and John Rawls on American constitutional theory, and although each justification is sophisticated, none can bear the normative weight that would justify conforming constitutional theories to our social practices. A constitutional theory cannot ignore our social practices, but it is the theory that can justify those practices, not the other way around.

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

Lee Strang Responds to CriticsMichael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted Originalism's Promise: An Intentionally Thin, Natural Law Account of Our Fundamentally Just, Complex, Constitutional System (11 Faulkner L. Rev. ___ (2023)) (79 pages) on SSRN.  Here is the abstract:

In this Response to Professors Green, Lewis, and Segall, I address four major criticisms offered by them. My responses show that my natural law account of the Constitution is both reasonably modest in the claims it makes upon Americans while retaining sufficient power to support the Constitution’s original meaning. The natural law account is modest because its claims about what the natural law is are relatively modest, as exemplified by my instrumental conception of the common good, and the account makes room for significant human creativity through positive law to organize Americans for the common good. Yet, it remains powerful enough to provide reasons for Americans to (continue to) support the Constitution’s original meaning.

First, I argue that my use of the Aristotelian philosophical tradition to describe the source of my account’s key conceptual tools is both accurate and valuable, and that it is accessible to scholars and educated Americans. Second, I explain why my natural law account of the Constitution, which employs a full(er) legal theory (than some originalists) is more attractive than a parsimonious account premised solely on the virtue of truth telling. Third, I show that the thin conception of the common good I employ is sufficiently weighty to provide Americans with reasons to support the Constitution’s original meaning. Fourth, I defend my Deference Conception of Constitutional Construction and my theory of originalist precedent from Professors Green’s and Segall’s criticisms. I show that both are reasonable attempts by our legal system to implement the Constitution in light of the limits of the human condition and the mistakes that judicial officers will make.

This is part of the Faulkner Law Review's symposium on Professor Strang's book Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge Univ. Press 2019).

Anita Krishnakumar: The Common Law as Statutory BackdropMichael Ramsey

Anita S. Krishnakumar (Georgetown University Law Center) has posted The Common Law as Statutory Backdrop (136 Harv. L. Rev. 608 (2022)) (82 pages) on SSRN.  Here is the abstract:

Amidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and undertheorized in the statutory interpretation literature.

This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses the common law to determine statutory meaning, based on a study of 602 statutory cases decided during the Roberts Court’s first fourteen and a half Terms. The Article catalogs five different justifications the Court regularly provides for consulting the common law, as well as three different methods the Court uses to reason from the common law to statutory meaning. The Article also notes several problems with the Court’s current use of the common law to determine statutory meaning. For example, the Court has provided no criteria indicating when the common law is relevant to an interpretive inquiry, leading to inconsistencies in the Court’s use of the common law even with respect to the same statute. Moreover, the Court’s reliance on the common law — an arcane, sophisticated set of legal rules inaccessible to the average citizen — is in tension with modern textualism’s focus on the meaning that a statutory term would have in everyday conversation. In addition, there are democratic accountability problems inherent in the use of potentially antiquated doctrines created by unelected, elite judges to determine the meaning of modern statutes enacted by a legislature representing a diverse electorate.

In the end, the Article recommends that the Court limit its use of the common law to situations in which congressional drafting practices or rule of law concerns justify the practice — for example, where Congress itself has made clear that it intended for the relevant statute to incorporate the common law, where the statutory word or phrase at issue is a legal “term of art” with a clearly established common law meaning, or where courts have long construed the statute in light of the common law, so that it can be considered a “common law statute.”