08/03/2021

Corpus Linguistics and Heller (Part IV)
David Weisberg

This comment will discuss Prof. Anya Bernstein’s post, entitled “More than Words,” which is part of Duke Law’s blog series “Corpus Linguistics and the Second Amendment.”  (My prior posts can be tracked down here.) 

Prof. Bernstein does not focus extensively on Heller; she offers a wider perspective.  The gist of her post is summed up in this paragraph:

If we want to treat constitutional language the way a linguist would, … we will assume that linguistic meaning changes over time as everything around it changes—from its readers and expositors and implementers, to the social norms and social structure in which it takes effect, to the legal regime that it functions in. Corpus linguistics, then, works on a rather non-originalist assumption. Linguistics does not recognize a fixation thesis, but rather assumes that language—as a social medium—continually develops along with the society around it.

This raises at least two important questions: 

(1) Should one assume “that linguistic meaning changes over time”?  (For brevity’s sake, I’ll call that assumption the “change thesis.”) 

(2) Does CL work on a non-originalist assumption that entails the non-recognition of a “fixation thesis”?  (The latter term is of course most closely associated with Prof. Lawrence Solum, who has written: “The meaning of the constitutional text is fixed when each provision is framed and ratified: this claim can be called the Fixation Thesis.”) 

I am going to consider those two questions in reverse order.

Although Prof. Bernstein believes that CL does not recognize a fixation thesis, some CL practitioners surely would disagree.  For example, Mr. Neil Goldfarb’s post (which I’ve discussed here) amply demonstrates his belief that CL can fix the meaning of the phrase “the right of the people to keep and bear Arms” in 1791; he holds that belief just as strongly as Justice Scalia believed that his own originalist analysis could accomplish that same task.  Each endorsed a different fixed meaning—Mr. Goldfarb thinks the phrase is best understood as referring exclusively to military uses of arms; Justice Scalia believed it encompassed both military and non-military uses—but both believed the phrase had a fixed meaning in 1791 that is recoverable in this century.  So at least some practitioners of CL do recognize a fixation thesis.  

Regarding the second question, I’d guess that virtually no one would answer in the negative.  Indeed, Justice Scalia (in a book entitled Reading Law, co-authored with Bryan Garner) wrote: “Words change meanings over time, and often in unpredictable ways.” (P. 78, fn. omitted.)  But Prof. Bernstein’s assertions as to how a fixation thesis relates to both the change thesis and linguistics get things backwards.  If, as she says, linguists assume the change thesis, that assumption itself implies that, at various times, linguistic meaning is fixed, just as the fixation thesis posits.  The very concept of “change” requires that there are times when things are fixed, that is, unchanging. 

An object changes physical position only if, at a certain time, it is at point A and, at a later time, it is at point B.  A change in position necessarily implies that a starting point, point A, is fixed.  If we don’t know whether something at point B was initially at some place other than point B, we can’t know whether the thing has changed its position or, instead, has always been at point B. 

Similarly, if the change thesis is correct in positing that “linguistic meaning changes over time,” then it follows that some bit of language had at a certain time a certain fixed meaning and then, at a later time, the same bit had a different meaning.  (Just to be clear: to say that a bit of language had or has a fixed meaning is not to say that, at any time, it was free of ambiguity or vagueness.  Ambiguity or vagueness will always be an integral feature of some linguistic expressions.  “Due process of law,” “the equal protection of the laws,” “unreasonable searches and seizures”—these phrases and many others have always been, and always will be, vague to a very substantial degree.  “Sister-in-law” is always ambiguous.)

One implication of the foregoing is that not all linguistic meanings can be changing all the time.  There has to be some stability of meaning, or else we will again lack the fixed starting points that are necessary if change is to occur.  To empirically verify any kind of change, whether of billiard balls or linguistic expressions, the change must occur at a measurable pace.  An observer must be able to confirm that, at a particular time, the phrase meant X, and at a later time it had a somewhat different meaning.  So, with all due respect, if linguists assume the change thesis, then those same linguists do indeed recognize, explicitly or implicitly, a fixation thesis.  Assertions to the contrary are incorrect.

A second important implication of the change thesis is that previous meanings—meanings that bits of language had at one time but that changed subsequently—must be recoverable.  That is, even if a language bit has a meaning today that it did not have at an earlier time, we must be able to determine today, at least to some degree, the meaning it did have at that earlier time.  If previous meanings aren’t recoverable at all, we would have no empirical ground for asserting that any meaning has ever changed, and thus no ground for accepting the change thesis.

Thus, the change thesis and the fixation thesis are both consistent with the notion that, at a particular point in time—say, e.g., 1789, when the Constitution was ratified, or 1791, when the Second Amendment was ratified—the language in the Constitution or the Second Amendment had a fixed meaning, and at a later time the meaning changed to some degree.  Moreover, notwithstanding any subsequent changes in meaning, it might well be possible today to recover meanings for the Constitution and the amendment that would have been the meanings understood at the end of the eighteenth century.  All of that is perfectly consistent with both the change thesis and the fixation thesis.  

In sum, an originalist (or, as I would prefer, a careful and thoughtful constitutional textualist) and a linguist both employ a methodology that, at a fundamental/logical (but not operational) level, is consistent with the other’s methodology.  Moreover, the linguist’s fundamental methodology—specifically, the change thesis—itself implies that the originalist’s fixation thesis also must be accepted, because there can be no change without a fixed starting point.  The converse, I think, is not true; we can conceive of a language that generates linguistic expressions with meanings that never change over time.  But, of course, no one believes that is how living languages work in the real world.   

08/02/2021

More from Josh Hammer on Public Good Originalism (with some Comments)
Michael Ramsey

At Public Discourse, Josh Hammer: In Defense of Common Good Originalism (responding to this essay in Public Discourse by John Grove).  From the introduction: 

John Grove of Law & Liberty has written the most thoughtful critique of common good originalism—the jurisprudential framework I have developed over the past year-plus, including here at Public Discourse and most recently in a long-form Harvard Journal of Law & Public Policy (HJLPP) essay—to date. Grove has proven himself to be a relentless critic of a more substantively and morally informed jurisprudence. In his Public Discourse essay, he takes direct and specific aim at common good originalism. His serious essay deserves a serious response.

It is first worth noting that Grove and I agree on more than he seems to realize. In the essay, Grove repeatedly emphasizes that ours is a “compromise constitution” that “emerged from a negotiated consensus,” such that we ultimately “have few guides” in interpretation other than “the text [all relevant bodies] ratified.” I concur in this general reading of the relevant history. However, in my view, that history cuts in precisely the opposite direction of the one Grove seems to think it does.

It is no great secret that the Founders vehemently disagreed among themselves on virtually everythingup to and including the very nature of the American Revolution itself—that is, whether it was a true liberal “revolution” in the Enlightenment rationalist sense of the term (the position of Thomas Jefferson, Thomas Paine, and their allies) or whether it was more accurately understood as a conservative “restoration” of the common law rights of Englishmen that Parliament and the Crown had begun to deny to the American colonists in the aftermath of the Seven Years’ War (the position of Alexander Hamilton, John Adams, and their allies). Many of the relevant debates, including the drafting debates at the 1787 Constitutional Convention and the great constitutional interpretive debates during the first few Congresses, such as the 1793-1794 Pacificus-Helvidius Debates between Hamilton and James Madison, must be understood as intellectually downstream of this overarching, higher-order philosophical disagreement.

The upshot is that many key constitutional clauses were indeed drafted as compromise provisions intended to win over the greatest number of prospective ratifiers among intensely warring intellectual and political tribes. When combined with the insight that many of these clauses, such as Article I, Section 8’s General Welfare Clause and Necessary and Proper Clause, are written in unmistakably broad, sweeping language, this ought to cut strongly in favor of a dispositional humility about an interpreter’s ability to definitively discern the most accurate original meanings of at least some of these clauses.

I largely agree with this assessment, and I think most originalists would as well.  The idea that originalism provides definitive answers to all constitutional questions is mostly a position ascribed to originalists by nonoriginalists.

I do have two preliminary questions about common good originalism based on this beginning.  The first is how indeterminate it perceives the Constitution to be.  While I acknowledge difficulties in finding the original meaning, I don't go to the extremes of originalist critics such as Eric Segall and Jonathan Gienapp, who find most important questions unresolvable by originalist analysis.  Josh Hammer, both here and in his longer piece, seems to elide this question.

A second question is -- assuming common good originalism thinks that a material number of constitutional questions can be resolved by originalist analysis -- whether its proponents think that the original meaning is binding, or whether the "common good" can justify departures from text with a tolerably clear original meaning.

Nonetheless, I think it's right that originalism can't definitively resolve all constitutional issues -- so I agree originalists must decide what to do when it can't. The essay continues: 

The key question is what an interpreter ought to do when he is faced with a text that admits of multiple plausible originalist interpretations. Positivist/historicist originalists tend to answer this question in at least one of two non-mutually exclusive ways. Some resist my Burkean appeal to interpretive humility, arguing on the contrary that we now possess the linguistic research tools that enable us to ascertain a clause’s “one, true, authentic historical meaning.” Others—such as Grove, it seems, and perhaps also Ed Whelan—forthrightly acknowledge the difficulties presented by the abstract phrasing and sweeping language of certain constitutional provisions, but maintain nonetheless that the only legitimate approach is to eschew all non-historicist considerations and simply do one’s exegetical “best” to determine the historically “right” answer.

My fairly modest claim is that, in these situations of reasonable interpretive ambiguity, judicial and political statesmen instead ought to err on the side of what I call the telos of the American regime. This telos is most clearly expressed in the Constitution’s common good-oriented Preamble, though the Declaration of Independence is of course also relevant.

... I believe the constitutional text is necessarily oriented toward certain substantive ideals of natural justice, human flourishing, and the common good, and that the Preamble serves as a particularly clear and compelling citation to ground that claim.

I wonder to what extent this approach is distinct from resolving ambiguities based on the "spirit of the Constitution," a position associated with originalist scholar Randy Barnett (and perhaps Chief Justice Marshall).

In addition, I think the dichotomy advanced above misses a mainstream originalist view that when a judge finds the original meaning too ambiguous to resolve satisfactorily a particular dispute, the appropriate resolution is to defer to the political branches. (For example, see here from Richard Kay; I think it is also Ed Whelan's position). That approach seems to me to accord more with "interpretive humility" than does the idea of trying to identify and impose a telos of the American regime found in the Preamble.

(Thanks to Mark Pulliam for the pointer.)

08/01/2021

Larry Alexander: Formalist Textualism and the Cernauskas Problem
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Formalist Textualism and the Cernauskas Problem (Journal of Contemporary Legal Issues, Vol. 23, No. 1, 2021) (6 pages) on SSRN.  Here is the abstract:

In this short piece I respond to a recent article in the Harvard Law Review advocating an approach to interpretation that amounts to semantic literalism. I point out the pitfalls of thereby ignoring what the lawmakers are asserting.

From the introduction (footnotes omitted):

In a recent article [Ed.: Which Textualism, 134 Harv. L. Rev. 265 (2020)], Tara Grove distinguishes between what she calls “formalist textualism” and “flexible textualism.” Formalist textualism is really another term for literalism, in which statutory and constitutional language is given its semantic meaning—presumably its meaning at the time of enactment—in its “semantic context.” Grove illustrates the latter by pointing out that the phrase “domestic violence” appears in a statute that also mentions “insurrection,” thus suggesting that domestic violence there refers to acts similar to insurrection rather than to spousal abuse.

Flexible textualism, on the other hand, looks beyond the semantic meaning of the text and its semantic context to the text’s purpose and the assumptions and understandings of the enactors and the public at the time of enactment. To put it in terms I prefer, flexible textualists want to know what the text—or more precisely, the legislature whose text it is—is asserting. And what the text is asserting may be different from its semantic meaning.

And here is the Cernauskas problem:

But let me introduce the little case of Cernauskas v. Fletcher.  Jacob Cernauskas brought suit against Bishop Albert Fletcher to enjoin him from closing an alley abutting Fletcher’s property. Fletcher relied on a law that Cernauskas claimed had been repealed by a recent statue, the repealing clause of which stated, “All laws and parts of laws . . . are hereby repealed.” The court stated, undoubtedly correctly, that the legislature had merely wanted to repeal those laws that conflicted with the statute it was enacting, and that the necessary part of the repealing clause, “in conflict herewith,” had been omitted inadvertently. In other words, the Arkansas court was employing Grove’s flexible textualism.

But consider what result a formalist textualism would produce in Cernauskas. When the statute in question was enacted, it would thereby become the only law in the state of Arkansas, all other laws having been repealed. That’s what the semantics of the repealing clause dictate; and there is nothing in their “semantic context” that suggests that “all laws . . . are hereby repealed” doesn’t mean what it says. So until the legislature passes new laws, Arkansas would not have laws against murder, rape, robbery, and so on. And anyone who committed those and numerous other crimes in the period after the repealing clause went into effect would have an ex post facto law claim against their prosecution.

07/31/2021

Matthew Schafer on New York Times v. Sullivan
Michael Ramsey

Matthew Schafer (Fordham University School of Law) has posted In Defense: New York Times v. Sullivan (71 pages) on SSRN.  Here is the abstract:

New York Times v. Sullivan, the landmark Supreme Court case that helped shape our understanding of the First Amendment, is under attack. Twice now in opinions accompanying orders relating to certiorari, Clarence Thomas and, more recently, Neil Gorsuch have drawn into doubt the rule recognized in that case: that public official libel plaintiffs must plead and ultimately prove that a defendant published knowing the defamatory statement was false or with a high degree of awareness that it probably was. They either want to throw this “actual malice” rule out altogether or reexamine its implications and, potentially, prune it back. While some of these attacks are focused on more pragmatic concerns, a central attack, shared by both Thomas and Gorsuch, is that Sullivan is ahistorical and thus divorced from an original understanding of the First Amendment at the time of the Founding or the Reconstruction. Many commentators have seemingly accepted this assessment uncritically. This article challenges that view. It marshals substantial historical evidence that rebuts several of the justices’ specific historical arguments. More fundamentally though, through marshaling this evidence, it demonstrates that far from adopting the English common law of libel in the early United States, the Founders, federal and state legislatures, courts, and parties in litigation adopted a uniquely American understanding of freedom of the press - one where the severe rules of the English common law of libel were rejected so that citizens in a newly formed republican government could freely debate the conduct of those with power over the affairs of society.

07/30/2021

Corpus Linguistics and Heller (Part III)
David Weisberg

Continuing my review of Duke Law’s series of essays devoted to corpus linguistics (CL) and D.C. v. Heller (my previous posts are here and here), this is a comment on the post written by Dennis Barron, professor of English and linguistics, which is entitled “Corpus Linguistics, Public Meaning, and the Second Amendment.”  Prof. Barron’s post includes a great deal of common sense, but is ultimately unsatisfying.  His concluding sentence states: “Yes, the corpus data helps us interpret the Second Amendment, but we shouldn’t need evidence from a corpus or the imagined utterances of an eighteenth-century proletariat to know that soldiers bear arms, hunters carry guns, and villains pack heat.”  (Footnote omitted.)

What is unsatisfactory, to my way of thinking, is this.  Justice Scalia’s opinion for the majority in Heller devotes substantial attention to the meaning of the phrase “keep and bear Arms” in the 2nd Amendment.  (554 US at 570-92.)  After consulting various dictionaries published around the amendment’s ratification in 1791, Justice Scalia turns to what he calls “founding-era sources.”  He writes:

The most prominent examples are those most relevant to the Second Amendment: nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”  It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. (554 US at 584-85, fn. omitted.)

Prof. Barron does not even mention the existence of these nine state constitutional provisions, much less discuss them, and that is what is disappointing.  In a scholarly argument, surely fairness requires that one address what are claimed to be some of the “most prominent” and “relevant” facts supporting the adversary’s position. 

Here are the nine relevant state constitutional provisions cited and quoted by Justice Scalia (554 US at 585, n.8):

Pennsylvania Declaration of Rights (1776): “That the people have a right to bear arms for the defence of themselves and the state...”

Vermont Declaration of Rights (1777): “That the people have a right to bear arms for the defence of themselves and the State...”

Kentucky Constitution (1792): “That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”

Ohio Constitution (1802): “That the people have a right to bear arms for the defence of themselves and the State...”

Indiana Constitution (1816): “That the people have a right to bear arms for the defense of themselves and the State...”

Mississippi Constitution (1817): “Every citizen has a right to bear arms, in defence of himself and the State”

Connecticut Constitution (1818): “Every citizen has a right to bear arms in defense of himself and the state”

Alabama Constitution (1819): “Every citizen has a right to bear arms in defence of himself and the State”

Missouri Constitution (1820): “That their right to bear arms in defence of themselves and of the State cannot be questioned”

These nine constitutional provisions were (I presume, I don’t really know the history) all proposed and endorsed by senior political leaders in each State; they all treat of a right to “bear arms”; they all were approved by a majority of voters in each State, which, in the aggregate, must have amounted to tens of thousands of voters; they all were placed in the foundational legal document—the constitution—of each State; and they all were adopted relatively close in time to 1791.  I therefore think it would be fair to say that the contexts in which those nine provisions were proposed and adopted were strikingly similar to the context in which the 2nd Amendment was proposed and adopted. 

Prof. Barron says that we shouldn’t need a corpus or proletarian utterances from the 18th century “to know that soldiers bear arms [and] hunters carry guns[.]”  But the nine foregoing constitutional provisions do not convey the knowledge that  only  soldiers bear arms.  Rather, the nine provisions teach us that “the people”, “the citizens”, and “every citizen” also can bear arms.  Moreover, the nine provisions do not convey the knowledge that one who bears arms must do so with a purpose  exclusively related to military service.  Instead, the nine provisions teach us that citizens or the people have a right to bear arms “in defense of themselves”, and every citizen has a right to bear arms “in defense of himself”.  Bearing arms in defense of oneself is, I submit, not coterminous with military service.  Clearly, when people used the phrase “bear arms” in America around the end of the 18th century, it was their understanding, in a proper context, that people other than soldiers could bear arms for purposes other than military service.

Prof. Barron discusses Aymette v. State, 21 Tenn. 152 (Tenn. 1840), in which the Tennessee supreme court held that the State could prohibit the concealed carrying of a bowie-knife in a public place, notwithstanding the provision in the State’s constitution which declared “that the free white men of this State have a right to keep and bear arms for their common defence.”  It should be obvious that Tennessee’s constitutional arms-bearing provision is materially different in form from the nine provisions cited by Justice Scalia in Heller.  The former provision refers to a single purpose underlying or justifying the constitutional right to keep and bear arms—the “common defence” of a specified class of men.  The latter nine provisions all refer to what are ostensibly two different purposes—defense of himself (or themselves) and defense of the State.  Why the plain language of nine state constitutional provisions should be negated or superseded by an ambiguous provision in one state constitution is a mystery.            

Prof. Barron asserts that there is a “long-held understanding that bear arms has always been a military term[.]”  In support of that assertion, he quotes from the Aymette opinion:

A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day for forty years, and yet it would never be said of him, that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.

First, insofar as the foregoing relates to firearms carried or borne without concealment, it is dicta—it is not an essential part of the reasoning supporting the Aymette result. Mr. Aymette was neither bearing nor carrying a rifle without concealment; he was carrying and concealing a bowie-knife.  And he was neither hunting nor engaged in military service; he was looking to settle a quarrel with an antagonist.  Nine state constitutional provisions directly imply that a person, or people, or citizens might bear arms for his or their self-defense, which is different from hunting deer.  Nothing in Aymette says or implies that people cannot bear arms in or for their own defense.

Prof. Barron says that the “long-held understanding” is bolstered by a CL search conducted by historian Saul Cornell, who found more than 100 uses of bear arms in founding-era documents; 96% had “a military context”.  So, 4% did not have a military context.  I would think that those who study linguistics would be the first to agree that, in understanding a word or phrase, context is crucial.  I submit that, when we consider the use of bear arms in the 2nd Amendment, the most similar contexts are found in roughly contemporaneous state constitutional arms-bearing provisions.  Nine of those provisions directly imply that those words, in those contexts, can be understood as applying either to someone defending himself or to someone in military service.  Even if those uses amount to no more than 4% of the total, I think they carry the day. 

07/29/2021

Orin Kerr: Katz as Originalism
Michael Ramsey

Orin S. Kerr (University of California, Berkeley School of Law) has posted Katz as Originalism (71 Duke Law Journal, forthcoming 2022) (50 pages) on SSRN.  Here is the abstract:

The “reasonable expectation of privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.

This Article argues that originalist opposition to Katz is misplaced. Properly understood, the Katz test is consistent with both originalism and textualism. The “reasonable expectation of privacy” framework both accurately tracks the constitutional text and reflects a sound interpretation of its original public meaning. The originalist criticism of Katz is based on a misunderstanding of what the Katz test does. Instead of creating a constitutional free-for-all, the test merely preserves the original role of the Fourth Amendment against the threat of technological change. Ironically, the alternatives that originalist and textualist critics have proposed are either Katz in disguise or are less rooted in text and original public meaning than Katz itself.

(Via Volokh Conspiracy.)

07/28/2021

Franita Tolson: The Reconstruction Acts as Sources of Constitutional Meaning
Michael Ramsey

Franita Tolson (USC Gould School of Law) has posted 'In Whom is the Right of Suffrage?': The Reconstruction Acts as Sources of Constitutional Meaning (169 University of Pennsylvania Law Review, forthcoming) (14 pages) on SSRN.  Here is the abstract:

This Essay argues that the Reconstruction Acts, which readmitted Arkansas, North Carolina, South Carolina, Louisiana, Georgia, Alabama, Florida, Virginia, and Mississippi back into the union, are a source of constitutional meaning that bears on the right to vote under the Reconstruction Amendments and the requirement of republican government enshrined in the Guarantee Clause of Article IV, Section 4. Despite the fact that Congress enacted these statutes contemporaneously to the ratification of the Fourteenth and Fifteenth Amendments and, importantly, at a time when Congress aggressively enforced the Guarantee Clause, these Acts are overlooked in modern constitutional discourse because scholars have long viewed their terms as legally unenforceable.

As this Essay will show, this view is mistaken. The readmission of the former Confederate states was the first time that Congress clearly articulated the requirements of republicanism, free from the albatross of slavery and in light of the suffrage requirements of the new Amendments. The Reconstruction Acts imposed limitations on southern states with respect to the voting rights of their citizens as a condition of reentering the union. In doing so, these statutes shed light on the reach of Section 2 of the Fourteenth Amendment and, importantly, the universe of crimes for which one can be disenfranchised consistent with the republican guarantee. Section 2, in particular, allows Congress to reduce a state’s delegation in the House of Representatives by removing disfranchised voters from the basis of population used for apportionment, but permits states to disenfranchise individuals “for participation in rebellion or other crime.” Clarifying Section 2, the Reconstruction Acts specify that these states can disenfranchise their residents only for crimes "as are now [1868] felonies at common law" and not for the wide range of crimes that are currently used to disenfranchise individuals in all southern states.

Turning to the recent debate in Florida over the re-enfranchisement of individuals with felony convictions, this Essay concludes that, when states disenfranchise their citizens in violation of Section 2 and the Guarantee Clause, as informed by the Reconstruction Acts, these violations constitute an abridgment of the right to vote and render their governments unrepublican in form. The fact that people are impermissibly disenfranchised for crimes that were not felonies at common law makes the Florida statute requiring payment of all fines and fees a poll tax. Because Congress’ enforcement authority empowers it to prevent such abridgments, that body has substantial authority, pursuant to its authority under the Fourteenth and Twenty-Fourth Amendments, to remedy this disenfranchisement through either reduced representation or other appropriate penalties.

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

07/27/2021

Bradley Rebeiro on a "Better" Originalism
Michael Ramsey

At Law & Liberty, Bradley Rebeiro (BYU): Redeeming the Constitution.  From the core of the argument:

... Is there a way to rescue the original meaning of the Constitution but maintain the integrity of the judge’s role to say what the law is, rather than what it should be? If the “better” originalism is imprudent, and the “correct” originalism only serves to remind us of our dark past and draw into question whether the original understanding is worthy of our loyalty and respect, perhaps originalism should simply be done away with. Or perhaps not.

Indeed, it may be prudent for us to look for a “better” originalism and, luckily for us, confronting our past may still teach us valuable lessons for the present. Our current crisis of identity is not unlike that of the antebellum period. As the nation struggled over its identity (a struggle which eventually led to Civil War), the Constitution laid at the center of the debates. Was the Constitution pro-slavery or anti-slavery?

... Constitutional abolitionists sought to wrest the Constitution from the grasp of the “Slave Power” by interpreting it as an anti-slavery document. These abolitionists, including Lysander Spooner, Gerrit Smith, and Frederick Douglass, understood the Constitution as an instantiation of the Declaration of Independence, that its original purpose was to establish freedom for all. “We the people” did not mean “We the [white] people” or “We the [white male] people,” but all persons naturally born or naturalized into the Union. The Union suffered from improper administration, not improper principles. The Garrisonians and pro-slavery defenders were doing the Constitution a disservice by associating it with the perpetuation of slavery. Rather, in the famous words of Frederick Douglass, the Constitution was “a glorious liberty document.”

These abolitionists interpreted the Constitution somewhat similar to how originalists do today. They looked to the plain meaning of the words of the document at the time of adoption. When searching for that meaning, rather than argue what the Framers intended to accomplish, they often made arguments based on how the public understood the Constitution. ... [They] recognized that the positive law (in this case the Constitution) was binding. However, its binding nature only subsisted so long as it was in harmony with the natural law. Thus, when interpreting the positive law, these abolitionists emphasized natural rights in their methods. As they sought the plain meaning of words, they did so with an eye specifically to the Constitution’s purpose: to protect the natural rights of all persons. They therefore reconciled the Constitution’s many provisions with an anti-slavery agenda that would bring about gradual abolition.

And in conclusion:

However, looking to the past and how constitutional abolitionists met the problem of slavery and the Constitution challenges us to reconsider how we understand this tension between originalism and natural law theory to see if there remains a better way to reconcile the two. What is more, it shows us that there can be a time when taking more seriously natural law principles over mere positivism can indeed be the prudent thing to do. Constitutional abolitionists understood that respecting positive law did not mean that they disregard the natural law in the way they interpreted the Constitution; nor did natural law require them to disregard the people who adopted the Constitution. But natural law did require them to understand the original meaning in a particular way—it guided them to reconcile that meaning, as much as possible (and at times quite creatively), with natural rights.

There could be a method that has both the reliability of originalism and the moral authority of the natural law. Indeed, we need a method that can reconcile the Constitution with natural rights. Originalism as it is practiced now likely would not have been equal to the task in the antebellum period, and it may not be equal to today’s challenges. The Constitution can only demand our respect and loyalty if it adequately reflects the natural law and thereby protects our natural rights. Originalism has great appeal given its rigorous methodology, but it lacks a certain moral quality that can redeem the Constitution’s soul. [Hadley] Arkes and company have importantly challenged originalism in what feels like a watershed moment in our nation’s constitutional history. Indeed, they have already done much in an attempt to carve out a new path. Perhaps more will contribute efforts to answering whether we can truly find a “better” originalism.  Perhaps that effort will generate a robust theory of interpretation, much like originalism has in the past four decades. For now, constitutional abolitionists provide a sketch of how we can understand the Constitution and its provisions in a way that demands our loyalty but also respects all elements of law, natural, positive, and prudential.

RELATED: In the Wall Street Journal, a counterpoint from David B. Rivkin Jr. and Andrew M. Grossman: The Temptation of Judging for ‘Common Good’.  From the conclusion:

As with liberal talk about the “living Constitution,” the high-minded rhetoric [of common good originalism] conceals an assertion of unbridled power. Liberals, [they] justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.

That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”

But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”

The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.

(Thanks to Andrew Hyman for the pointer.)

07/26/2021

Corpus Linguistics and Heller (continued)
David Weisberg

I’d like to make a second comment regarding Duke Law’s blog series Corpus Linguistics and the Second Amendment.  (My first post is here.)  This time, I’ll discuss Mr. Neil Goldfarb’s post, “Regarding the Strength of the Corpus Evidence (and Noting Issues that the Evidence Doesn’t Resolve), focusing on his discussion of the phrases “right to bear arms” and “right to keep and bear arms”. 

It will be remembered that Justice Scalia’s majority opinion in Heller cites arms-bearing provisions from the constitutions of nine States, adopted from 1776 to 1820. (554 US 585, n. 8.)  This is what Mr. Goldfarb has to say about state constitutional provisions:

[T]he state provisions are inconclusive because in each such provision, bear arms was modified by a prepositional phrase that has no analogue in the Second Amendment:

bear arms for the defence of themselves and the state

bear arms, in defense of himself and the state

bear arms in defense of themselves and the State

It seems to me that it’s inappropriate to assume that the use of bear arms without any modification would have been understood in the same way as the use of the phrase as modified in the state provisions.   (All italics and underlines in all quotations are in original.)

In a linked post, he says this about state constitutions: “Given that the issue to be decided is how the right to keep and bear arms as used in the Second Amendment was likely to have be[en] understood, there was nothing to be learned from considering uses of that very phrase or of closely related variants, in a similar context.”   

I find all of this mind-boggling.  First of all, I think a thoughtful person believes that, if one is trying to understand the meaning of a phrase in a context, one hopes to find examples of that very phrase or closely related variants in similar, albeit not identical, contexts.  But, from Mr. Goldfarb’s perspective, these are negatives—the more dissimilar the context, the better.

Secondly, Mr. Goldfarb says it is inappropriate to assume that “bear arms” would be understood in the same way in state constitutional provisions and the 2nd Amendment.  Agreed—we want reasoned arguments, not assumptions.  But, should we therefore assume that “bear arms” would not be understood in the same way in state constitutional provisions and the 2nd Amendment?  The second proposition isn’t implied by the first.  If we begin with an open mind, we must reject another assumption, namely, that there is “nothing to be learned” from States’ constitutions.           

Thirdly, we’re told that the reason the state constitutions can legitimately be disregarded is that they all include modifying prepositional phrases that have no analogue in the 2nd Amendment.  But Mr. Goldfarb provides a link to CL data supporting the conclusion that “bear arms” in the 2nd Amendment “would most likely have been understood as conveying the idiomatic sense relating to the military[.]”  He reports that CL provides 531 arguably relevant uses of the phrase “bear arms” or closely related phrases, and that, after excluding all state constitutional arms-bearing provisions, no more than 26 uses could be deemed consistent with Heller.  All the rest are military uses that are inconsistent with the majority opinion in Heller

Mr. Goldfarb offers eight examples (which I assume he randomly chose) of uses that relate only to the military and thus tend to contradict Heller.  Of those eight examples, two are uses in which the subject phrase is immediately followed by a prepositional phrase that has no analogue in the 2nd Amendment:

“bear arms in Defence of our Country”

“borne Arms in defence of this State” 

So, Mr. Goldfarb disregards state constitutional provisions because they include prepositional phrases having no analogue in the 2nd Amendment, yet, of eight randomly-selected examples of uses that purportedly support his preferred understanding of the amendment, two uses—twenty-five percent of the sample—display that very same feature, that is, they include prepositional phrases having no analogue in the 2nd Amendment.  Are prepositional phrases the kind of disqualifiers that disqualify only those uses that tend to support Justice Scalia’s interpretation of “bear arms”?  Apparently so.           

I think the nine States’ constitutional provisions—all of which are formulated more or less along the lines of “bear arms in (or for) (the) defence of themselves (or himself) and (of) the State”—are important in reaching a correct understanding of the 2nd Amendment; it requires a kind of willful blindness to not see their importance.  The fact that the States’ arms-bearing constitutional provisions and the 2nd Amendment have similar contexts—they all appear in constitutions, which are important foundational legal documents; they all make reference to rights to “bear arms”—enhances, rather than detracts from, the value of the former as guides to understanding the latter.  All of the nine States’ constitutional provisions make reference to both self-defense and the defense of the State.  To my mind, this is important evidence that the right referred to in the 2nd Amendment potentially includes the right to keep and bear arms for self-defense and other civilian purposes.  That does not imply, however, that either Heller or McDonald was correctly decided.  (For a more complete exposition of my views on both cases, see here.)

07/25/2021

There are Better Arguments for Overturning the Insular Cases than the Ones Based Upon the Citizenship Clause [Updated with Comments]
Andrew Hyman

I have no definite opinion about whether the Insular Cases ought to be completely overturned, or cabined, or something in between.  But it does seem like there are better ways of doing it than relying upon the Citizenship Clause.  For some background on the continuing controversy about the Insular Cases see the blog post written a few days ago by my co-blogger Michael Ramsey (who also wrote a law review article about it).  Basically, those cases held that there are two kinds of U.S. territories: “incorporated” territories that are on the way to statehood, and “unincorporated” territories that are not expected to get statehood.  Those cases generally held that residents of the incorporated territories are entitled to full constitutional rights, whereas people in the unincorporated territories are only entitled to a slimmed-down version of the most fundamental constitutional rights.

Most of the current arguments against the Insular Cases are based on the Citizenship Clause which does not explicitly mention territories and therefore is of dubious relevance: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  Back when that clause was ratified in 1868, the term “United States” sometimes referred to the states minus the territories, and various clauses in the Constitution are best read the same way (e.g. the Eleventh Amendment which refers to “one of the United States”).   The Tenth Circuit Court of Appeals recently discussed various textual reasons for reading “the United States” in that narrow manner when it comes to the Citizenship Clause, one of those textual reasons being the clause’s “effect of rendering persons born in the United States ‘citizens of the United States and of the State wherein they reside.’”  I will get back to this point below, but first would like to list three different originalist arguments for overturning (or cabining) the Insular Cases that seem like much stronger arguments than the one based on the Citizenship Clause:

First, one could argue that unincorporated territories are unconstitutional because they are not within the constitutional power to admit new states.  There is no general power granted in the Constitution to conquer and control the world forever.

Second, one could instead rely upon the Territories Clause which says, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….”  The word “needful” here is significant.  One could plausibly argue that it is not “needful” to recognize constitutional rights that are different depending upon whether a territory is incorporated or unincorporated.    

Third, one could make a more subtle argument based on the Territories Clause.  While it might be needful for rights to apply uniformly in all U.S. territories in order to limit the U.S. government as distinguished from the territorial government, it might not be needful to interfere with the self-government of an unincorporated territory by interceding between the territorial government and its own populace.

Having just summarized a few potentially reasonable constitutional arguments against the Insular Cases, I will excuse myself from trying to summarize possible counterarguments, and will instead return now to the wrongness of using the Citizenship Clause to overturn the Insular Cases.  Although internal congressional deliberations are usually not worth much, at least they can show that an idea might be plausible, and this quote from Illinois Senator Lyman Trumbull falls within that category: “the first section [of the proposed amendment] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.”  It’s not exactly clear what Trumbull meant (e.g. maybe he meant that the word "State" meant "State or Territory" throughout the first section), but in any event the public was not really privy to Trumbull's remark, judging by the zero hits I get at newspapers.com.  The same goes for legislative history on the other side, including the statement by Iowa Congressman James F. Wilson that, “A citizen of the United States is always a citizen of the state in which he resides….”  But there was one person who got a lot of press on this point: Ohio Congressman James Ashley urged (in July 1867 and again in December 1867) that the pending Fourteenth Amendment be replaced with one that includes this language: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state or territory wherein they reside” (emphasis added).  See 40th Congress 2nd Session Cong. Globe 117 (December 10, 1867).  If you check www.newspapers .com, you will find Ashley’s proposal covered in nineteen different newspapers throughout the country, and the list can be expanded by consulting other databases.  So, clearly, the public was very much on notice that the Citizenship Clause did not explicitly refer to any territories, and that a proposal in Congress to do that failed.

Had Congressman Ashley succeeded in his well-publicized effort to alter the Citizenship Clause in 1867, then I would agree the term “United States” in the Citizenship Clause was used in its broader sense, and therefore that the Insular Cases are unconstitutional for that reason.  But he didn’t, it wasn’t, and they aren’t.

MICHAEL RAMSEY RESPONDS: I agree with Andrew Hyman that the Fourteenth Amendment's citizenship clause isn't the principal basis for arguing that the Insular Cases were wrongly decided.  I don't agree at all with his three suggestions as to what the main arguments against the Insular Cases are (particularly the first and third ones).  The fundamental flaw in the Insular Cases is that absolutely nothing in the original Constitution's text, background understanding, contemporaneous commentary or post-ratification practice suggests that there are two tiers of U.S. territories, one entitled to full constitutional protections and the other entitled to only constitutional protections that are "fundamental" (whatever those may be).  The two-tier theory didn't emerge until it became convenient to the U.S.'s imperial ambitions in the aftermath of the Spanish-American War.

As to his idiosyncratic view  that the citizenship clause does not convey constitutional citizenship on persons born in any U.S. territory (including D.C.), I've responded before and won't repeat those arguments.  I'll add only that I don't think Congressman Ashley's proposal adds anything.  Ashley's proposal, it seems to me, had nothing to do with U.S. citizenship.  Rather, Ashley thought there ought to be -- in addition -- a concept of territorial citizenship akin to state citizenship. But since the territories, unlike the states, didn't have sovereignty apart from the U.S. as a whole, that concept made little sense and so wasn't adopted.  That doesn't suggest that people born in the territories aren't U.S. citizens (an entirely different proposition), only that people who reside in the territories (regardless of where they were born) don't have a state citizenship in addition to their U.S. citizenship.  To the extent (if at all) that Ashley thought the clause didn't convey U.S. citizenship on persons born in the territories, his view was inconsistent with the more common understanding (as I've described here).

07/24/2021

Judge Jay Bybee: Reverse Incorporation
Michael Ramsey

Jay Bybee (U.S. Court of Appeals for the Ninth Circuit) has posted Reverse Incorporation (111 pages) on SSRN.  Here is the abstract: 

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court declared that it was “unthinkable” that the Equal Protection Clause did not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause.

The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the Nineteenth Century—but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of “due process.” One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant. This Article reviews the history of reverse incorporation, much of which has not been told before. This Article argues that there is nothing “unthinkable” about the Constitution requiring different things of the states and the federal government, and that in the process of creating the congruent constitution the Court has overenforced some provisions against the federal government and underenforced others against the states. Indeed, the Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to both levels of government. The choice of a unitary rule may affect matters as diverse as mortgage relief in times of emergency and reparations for slavery. In the end, congruence is convenient for the Court, but it has blurred our federalism and altered our separation of powers. The latter point is critical: Through reverse incorporation, the Court has vastly expanded its own authority over Congress and the Executive, without the sanction of legislation or constitutional amendment under Article V.

07/23/2021

Randy Barnett on Supreme Court Expansion
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Court Packing is Unconstitutional - A law changing the number of justices to affect the Court's decisions is neither necessary nor proper, (The post summarizes and quotes Professor Barnett's testimony to the Presidential Commission on the Supreme Court, delivered at its public meeting on Tuesday).  From the introduction:

To appreciate the constitutional problem, we first need to locate the power that Congress is exercising when it sets the number of justices. It is the Necessary and Proper Clause, which empowers Congress to make a law that is necessary and proper to carry into execution the judicial power that Article III vests in the judicial department.

Article III does not specify the size of the Court, but for the past one hundred and fifty-two years, a nine-member Supreme Court has become an entrenched constitutional norm. To change the Norm of Nine, Congress needs to pass a new law. According to the letter of the Constitution, any such law must be both "necessary" and "proper."

In his opinion as Treasury Secretary on the constitutionality of a national bank, Alexander Hamilton offered the following test of a law's necessity: "The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power must be the criterion of constitutionality." Today, we call this the requirement of means-end fit. A law must have an appropriate "end" or "object" and "the means" it adopts must be sufficiently related to that end.

In McCulloch v. Maryland, Chief Justice John Marshall elaborated on this test when he wrote,

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

Of utmost importance is this how Marshall's rule of construction starts: "Let the end be legitimate…." Having set the number of justices, Congress may not then enact a law to change that number for the illegitimate end of affecting how the Court rules. That such an end is illegitimate is evidenced by the rationales for court expansion offered by FDR in the 1930s and by House Democrats today. These rationales are mere pretexts for the illegitimate end of changing how the Court rules in particular cases.

07/22/2021

Seth Barrett Tillman & Josh Blackman: Offices and Officers of the Constitution, Part I [Updated]
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) and Josh Blackman (South Texas College of Law Houston) have posted Offices and Officers of the Constitution, Part I: An Introduction (South Texas Law Review, Vol. 61, No. __, 2021) (7 pages) on SSRN.  Here is the abstract: 

In this Article, we introduce our planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. This series will explain the original public meaning of twelve clauses of the Constitution that refer to six categories of offices and officers. First, the phrase “officers of the United States” refers to appointed positions in the Executive and Judicial Branches. Second, the phrase “office . . . under the United States” refers to appointed positions in the Executive and Judicial Branches, and also includes non-apex appointed positions in the Legislative Branch. Third, the phrase “Office under the Authority of the United States” includes all “office[s] . . . under the United States,” and extends further to include a broader category of irregular positions. Fourth, the phrase “Officer” of “the Government of the United States” refers to the presiding officers identified in the Constitution. Fifth, the word “Officer,” as used in the Succession Clause, refers to those who hold “office . . . under the United States” and those who are “Officer[s]” of “the Government of the United States.” Sixth, the phrase “Office or Public Trust under the United States” encompasses two categories of positions: “Office[s] . . . under the United States” and “Public Trusts under the United States.” The former category includes appointed positions in all three branches; the latter category includes federal officials who are not subject to direction or supervision by a higher federal authority in the normal course of their duties.

Our categorization excludes elected officials from the categories “officer of the United States” and “office . . . under the United States.” Not everyone agrees with our Minimalist View. Professors Akhil Reed Amar and Vikram David Amar have put forward an Intermediate View: the elected President is an “officer of the United States,” but members of Congress are not. Professor Zephyr Teachout advances a Maximalist View: elected and appointed positions, in all three branches, are “offices” and “officers.” And some scholars may embrace a fourth approach. Under a Clause-Bound View, fine variations in the Constitution’s text should not be used to distinguish different kinds of offices and officers. Rather, this view purports to be guided by the specific purposes that animate individual clauses.

As a general matter, it is impossible to reject any of these four approaches with 100% certainty. Instead, we make a limited claim: our approach, the Minimalist View, is better than its known rivals. The Framers chose different “office”- and “officer”-language in different clauses of the Constitution. These provisions were altered throughout the Convention to standardize and harmonize how the Constitution refers to offices and officers. And the conduct of President Washington, his cabinet, and the First Congress was consistent with the Minimalist View. This evidence undermines the Intermediate, Maximalist, and Clause-Bound Approaches.

Part I, this Article, introduces our planned ten-part series. Part II will expound on the four approaches to understand the Constitution’s “office”- and “officer”-language. Part III will analyze the phrase “officers of the United States,” which appears in the Appointments Clause, the Commissions Clause, the Impeachment Clause, and the Oath or Affirmation Clause. Part IV will trace the history of the “Office . . . under the United States” drafting convention. Part V will consider the meaning of the phrase “office . . . under the United States,” which appears in the Incompatibility Clause, the Impeachment Disqualification Clause, the Foreign Emoluments Clause, and the Elector Incompatibility Clause. Part VI will turn to the phrase “Office under the Authority of the United States,” which appears in the Ineligibility Clause. Part VII will study the Religious Test Clause, which uses the phrase “Office or Public Trust under the United States.” Part VIII will focus on the phrase “Officer” of “the Government of the United States” in the Necessary and Proper Clause. Part IX will elaborate on the word “Officer,” standing alone and unmodified, in the Succession Clause. Part X will conclude the series.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended!  I'm looking forward to the rest of this mega-article!"

07/21/2021

Corpus Linguistics and Heller
David Weisberg

Prof. Ramsey notes that Duke Law has posted essays focused on corpus linguistics (CL) and D.C. v. Heller.  Several of those essays unintentionally highlight problems that CL can generate when applied to constitutional interpretation.  This note will address one post, “The ‘Strange’ Syntax of the Second Amendment,” by professor of linguistics Kari Sullivan.  (Full disclosure: I’ve argued that both Heller and its direct descendant, McDonald v. Chicago, were wrongly decided.) 

The 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 

This includes what Prof. Sullivan calls a being-clause, and that grammatical construction apparently fell out of use almost one hundred years ago.  Nevertheless, applying CL methodology to being-clauses with the same basic structure as the 2nd Amendment (the being-clause precedes the main clause and has a different subject), she finds that such clauses have four possible meanings: temporal, conditional, causal (or “external causal”), and logical (or “internal causal”.)  Examples follow.

Temporal: “The morning being come…, [the] coach was brought.”  That is, after the morning had come, the coach was brought.

Conditional: “These things [atmospheric conditions] being granted what is of a like kind [condensation] will readily be so disposed too.”  That is, one predicts, with greater or lesser degrees of confidence, that, if certain things occur, other things follow.

Causal (or External Causal): “The usual passages for the waters below being obstructed, they flooded the low grounds.”  Prof. Sullivan explains: “That is, flooding occurred because the passages were obstructed.  This is an external causation because it refers to a cause and a consequence in the real world.”

Logical (or Internal Causal): “The words in the will being to Richard and the heirs of his body, the heirs were in that will only words of limitation[.]”  That is, because the will recites “to Richard and the heirs of his body,” one must conclude that “the heirs” were only words of limitation.

The 2nd Amendment’s being-clause, we are told, must belong to one of these four types.  Regarding external causation, Prof. Sullivan writes:

The external causal interpretation would mean that “the right of the people to keep and bear Arms, shall not be infringed” for the purpose of “A well regulated Militia…necessary to the security of a free State”. 

Problems immediately arise.

First, the paradigm of external causation had the form “flooding occurred because the passages were obstructed.”  Now, the phrase “for the purpose of” has been substituted for “because”.  Why?  Prof. Sullivan doesn’t explain.  Nevertheless, if one asserts that “the right of the people to keep and bear Arms, shall not be infringed” because “a well regulated Militia [is] necessary to the security of a free State,” one would be asserting or the reason why the people have that right.  That is, the being-clause would clearly have a logical (or internal causal, not external causal) meaning.     

Another problem with Prof. Sullivan’s external causal interpretation of the 2nd Amendment is that it is  incoherent.  Incoherence is more apparent if inessential complexity is eliminated:

The right … to … bear arms, shall not be infringed for the purpose of … a … militia … necessary to … a free State.  

I am not a professional linguist, but I am a native speaker of American English.  To my understanding, the above statement is meaningless—grammatically correct word salad.

The incoherence of an external causal interpretation of the 2nd Amendment is not accidental.  Abstract concepts—e.g., “the right of the people to keep and bear Arms”—do not causally interact with the physical world.  Concepts are not something that can be the cause or effect of anything in the physical world, in the way obstructions in rivers cause floods.  Of course, real world things can cause people to think about concepts—Prof. Sullivan’s interesting paper caused me to think about Heller.  And our thoughts about concepts can cause us to act in the real world—my belief that Covid-19 is dangerous caused me to be vaccinated.  But those phenomena are entirely different from the concepts themselves, and not our thoughts about concepts, acting either as causes or effects in the physical world.  Human beings, including our mental states, are part of the physical world; abstract concepts are not.

Here is the punchline.  Prof. Sullivan reports that a relevant corpus contains 38 being-clauses of the relevant type from the relevant time period.  (She writes “37,” but I think that’s a typo, because the categories add up to 38.)  Eighteen have temporal meanings, 1 is conditional, 19 have external causal meanings, and there are zero logical or internal causals.  But the 2nd Amendment’s being-clause cannot possibly have an external causal meaning, because abstract concepts cannot cause or effect things in the physical world.  A temporal interpretation means that whenever a Militia is necessary to the security of a free State, the right of the people shall not be infringed.  So, the right might or might not be subject to infringement, depending on changing circumstances.  I personally do not believe the 2nd Amendment was ever understood to have so potentially fleeting or intermittent an application.  The conditional interpretation—if a well regulated Militia is necessary to the security of a free State, then the right of the people, etc.—is entirely too agnostic.  Why adopt the 2nd Amendment, if it’s unclear whether a Militia truly is necessary to a State’s security?

I conclude that the only acceptable interpretation of the 2nd Amendment’s being-clause—and, incidentally, the interpretation that is embraced by both Justice Scalia’s majority opinion and Justice Stevens’ dissent in Heller—is the logical or internal causal interpretation: Because a Militia is necessary to the security of a State, it was concluded that the right of the people to keep and bear Arms shall not be infringed.  If that’s right, then the interpretation which finds zero support in CL is nevertheless correct, and all the other interpretations, which together earn an aggregate CL score of 38, are incorrect.  Those who rely on CL to facilitate constitutional interpretation would do well to exercise extreme caution.

07/20/2021

The Nonoriginalist Insular Cases
Michael Ramsey

The once-obscure Insular Cases -- a series of Supreme Court decisions concerning U.S. overseas territories decided in the aftermath of the Spanish-American War -- have suddenly been in the news for several  reasons.  One is Fitisemanu v. United States, the Tenth Circuit litigation over the U.S. citizenship of people born in American Samoa.  The cases have also been discussed in the ongoing Senate Judiciary Committee hearings on the nomination of Judge Gustavo Gelpi to the First Circuit (here, and further written questions and answers here) -- Judge Gelpi criticized the Insular Cases in prior academic writing, notably his book The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898 - Present), and that drew questions from Senators.  And the House of Representatives is considering a resolution condemning the Insular Cases, see here.

In a recent defense of originalism discussed here, Professor Stephanie Barclay argued that some of the Court's worst historical decisions have been nonoriginalist -- specifically citing Dred Scott v. Sandford and Plessy v. Ferguson.  I'd put the Insular Cases on that list as well.  In the Insular Cases, especially Downes v. Bidwell and Dorr v. United States, the Court held that persons in "unincorporated" U.S. territory -- by which it meant overseas possessions such as Puerto Rico and American Samoa, and at the time the Philippines -- do not have the full protection of the U.S. Constitution.  This was an appalling bit of nonoriginalism that should be more infamous than it is.  (I had not paid much attention to the decisions until I began work on my article on originalism and birthright citizenship, which discusses them in part II.A.4.)  Consider: 

(1) The Justices in the majority cited no material originalist sources for their conclusion -- not the Constitution's text (which says nothing about different categories of U.S. territories receiving different levels of constitutional protection); not anything from the founding era; and not anything from the drafting and ratification of the Fourteenth Amendment, which declared that "[a]ll persons" born in the United States are U.S. citizens.  As Justice Harlan wrote in dissent in Downes, "I am constrained to say that this idea of [incorporated and unincorporated territories] has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel."

(2) The Justices in the majority instead transparently relied on the need for U.S. constitutional law to adapt to the United States' imperialist ambitions following the Spanish-American War, specifically the desire to acquire and hold territory for geostrategic reasons that was not to be treated as fully part of the United States nor destined for statehood in the manner of previous territories.  A contrary ruling in Downes, Justice Henry Brown said, would interfere with this imperial project. Or as originalist scholars Gary Lawson and Guy Seidman wrote in The Constitution of Empire (pp. 196-197), 

[T]here is nothing in the Constitution that even intimates that express constitutional limitations on national power apply differently to different territories once that territory is properly acquired. . . The doctrine of “territorial incorporation” that emerged from The Insular Cases is transparently an invention designed to facilitate the felt need of a particular moment in American history.

(3) Further, the decisions were overtly racist.  The reason a contrary decision in Downes would interfere with the imperial project, Justice Brown wrote, was that the predominantly nonwhite people of the newly acquired territories weren't suited for full incorporation into the U.S. polity. (Brown also wrote the majority opinion in Plessy v. Ferguson six years earlier, from which Justice Harlan also dissented).  The insular territories, Brown observed, were inhabited "by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought" and “the consequences [of extending the Constitution to the insular territories] will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions and modes of life, shall become at once citizens of the United States.”  Concurring, Justice Edward White (who had joined Brown's majority opinion in Plessy), equally found problematic the "immediate bestowal of citizenship on those absolutely unfit to receive it” as members of “an uncivilized race."

(4) Not content with making up the distinction between incorporated and unincorporated territories, the Court's majority went on to make up a distinction between "fundamental" constitutional rights and constitutional rights that are supposedly not fundamental. The former applied in the unincorporated territories, the Court said, while the latter did not.  This move somewhat mitigated the malign effects of the decisions, but it likewise had no basis in constitutional text or ratification-era commentary or practice.  The Constitution's text has just one category of rights.  The Court was simply writing the Constitution it preferred, rather than the Constitution we had.

(5) And in subsequent practice the Insular Cases had the effect the majority wanted: they allowed the United States to pursue its imperial ventures without having to extend full citizenship and constitutional rights to the predominately nonwhite new territories, a second-class status that persists in various respects today.

In an earlier post I described the Insular Cases as a nonoriginalist abomination and I stand by that description.  (And Judge Gelpi's criticism of them is well-taken on originalist grounds).  Whether they should be overruled is a different question -- generally I'm more comfortable with non-extension than overruling (see here).  But at minimum, they shouldn't be extended, which is why I think the panel decision in Fitisemanu, denying U.S. citizenship to American Samoans, is particularly unfortunate: the full Court in the Insular Cases never actually held that persons born in unincorporated territories are not U.S. citizens under the Fourteenth Amendment.  Even under the Insular Cases' analysis, citizenship seems like a "fundamental" constitutional right that should extend to the unincorporated territories.

In any event, whatever one thinks about overruling, I encourage originalists to think of the Insular Cases as extraordinarily problematic, and indeed as a further entry on Professor Barclay's list of historical nonoriginalist injustices.

(Thanks to Neil Weare for pointers on current congressional materials.)

07/19/2021

PennEast and Sovereign Immunity
Andrew Hyman

In June of this year, a closely divided U.S. Supreme Court decided the case of PennEast v. New Jersey, holding that Congress has power to delegate the ability to take land for an interstate pipeline to private pipeline companies who are headquartered in another state, and who can then launch lawsuits for eminent domain in federal court against not just private landowners but also against a state that owns land needed for the pipeline.  My co-blogger Michael Ramsey recently commented about that case, which raises important issues about whether the State of New Jersey had sovereign immunity from these lawsuits.  The U.S. Supreme Court said no, but did not go very deeply into this issue, because the parties relied entirely on SCOTUS precedents without asking that those precedents be reconsidered.  Justice Gorsuch, joined by Justice Thomas, wrote in dissent that:

The Eleventh Amendment’s text, no less than the Constitution’s structure, may bar [this suit]. This Court, understandably, does not address that issue today because the parties have not addressed it….The lower courts, however, have an obligation to consider this issue on remand before proceeding to the merits.

I hope the lower courts will do so.  The 11th Amendment says: 

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

This language, read literally, would have resolved this case against PennEast and in favor of the state of New Jersey, but literal text is not necessarily the end of the story.  I agree with Professor Eric Segall that, “The text of the 11th Amendment unequivocally blocks that suit,” but I would also allow exceptions that were understood when the 11th Amendment was ratified.  Unwritten exceptions to otherwise clear text may not be pleasant for textualists, but they are sometimes unavoidable.  For example, the text of the 6th Amendment indicates that a defendant can never represent himself without counsel: “In all criminal prosecutions, the accused shall…have the Assistance of Counsel for his defence.”  But every clause in the Constitution ought to be read reasonably rather than literally, taking into account both historical and textual context.

The question in PennEast is whether there were any applicable exceptions to the 11th Amendment, when it was ratified, that might shift the case in favor of the plaintiff pipeline company. Probably the best candidates for such an exception were described by Alexander Hamilton in Federalist 32, where he explained that if the federal government is given exclusive (not merely concurrent) power over a matter then that would amount to a valid waiver of the states’ sovereign immunity.  Hamilton wrote (emphasis in original):

[A]lienation, of  state sovereignty, would only exist in three cases: [1] where the Constitution in express terms granted an exclusive authority to the Union; [2] where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and [3] where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the POLICY of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances….

So, if PennEast had involved bankruptcy instead of interstate commerce, then the plaintiff would have had an extremely strong case for overcoming the sovereign immunity explicitly guaranteed by the 11th Amendment, because the bankruptcy power (unlike the interstate commerce power) is an entirely exclusive federal power.  As Hamilton explained in Federalist 32, such a power must “necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE” (emphasis as in original).  But PennEast was not about bankruptcy, it was about interstate commerce which is not an exclusive federal power like the bankruptcy power.  If indeed the interstate commerce power exercised in PennEast does not fit into the “three cases” that Hamilton described, then there cannot be alienation of state sovereignty, and so the 11th Amendment is not subject to such an exception.  Obviously, Federalist 32 was not commenting in 1788 about an Eleventh Amendment that would not be drafted until 1794, but still I would want to see some solid evidence that public sympathy shifted away from Hamilton’s argument between 1788 and 1794 before shifting away myself.

It may well be, as Professors William Baude and Stephen Sachs say, that the Eleventh Amendment does not allow states to waive any immunity protected by that amendment, “any more than two citizens of Pennsylvania can agree to bring their fender-bender into federal court.”  Assuming so, that still does not say anything about whether states could (or did) accomplish such a thing by ratifying other constitutional text, granting exclusive power to the federal government over certain discrete subjects.

So, the result in PennEast was probably wrong.  But the Court was constrained by the limited arguments made by the parties, and it will be interesting to see what happens on remand.

07/18/2021

Ilan Wurman: Testimony Before the Presidential Commission on the Supreme Court of the United States
Michael Ramsey

Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Testimony Before the Presidential Commission on the Supreme Court of the United States (10 pages) on SSRN.  Here is the abstract:

I have been asked to testify about “the Court’s role in our constitutional system,” in particular its role in resolving “major social and political issues” and proposals for reforms affecting judicial review of legislative enactments such as jurisdiction stripping, supermajority voting requirements, or congressional overrides. Recognizing that this Commission already comprises leading experts on these subjects, I will limit my comments to three discrete points that the Commission might find useful in its deliberations. I will discuss (1) the importance of different methods of constitutional interpretation to the Court’s role in our society, (2) the concept of “departmentalism,” which already exists, or can exist, within our present constitutional system, and by which the importance of the Supreme Court might be diminished, and (3) a proposal for eighteen-year, staggered term limits for Justices.

The upshot of my remarks is that the current Supreme Court, if it were to follow a genuinely “originalist” approach to constitutional interpretation, is not in need of reform because on many controversial social and political questions the Constitution leaves the answers to the democratic process, and on other questions an originalist approach does not reliably lead to results that only one political party favors. Recognizing, however, that originalism might nevertheless be controversial, I suggest reinvigorating the concept of departmentalism in our political and constitutional culture. Departmentalism recognizes that the Supreme Court has the final say on interpretations of law in cases and controversies that come before it, and that its judgments in such cases are binding on the parties. The political branches need not follow the Supreme Court’s reasoning as a political rule, however, at least not until good faith requires accepting that a constitutional question has been fully settled. (And a single Supreme Court opinion does not, or ought not, settle all such questions.) Neither the argument on originalism nor departmentalism requires any affirmative action on the part of this Commission.

To the extent these proposals are not satisfying, however, I also explore the possibility of imposing eighteen-year, staggered term limits on Supreme Court Justices. The National Constitution Center recently commissioned three teams — progressive, libertarian, and conservative — to draft new Constitutions for the United States. Team conservative, which I led, proposed eighteen-year, staggered term limits, as did the progressive team. Libertarian scholars have also endorsed this idea. In other words, eighteen-year, staggered term limits are a potential reform that persons of all backgrounds and political persuasions might support. The proposal would likely require a constitutional amendment, and it is hardly a perfect solution; indeed, in my view it is an unnecessary one. But it is probably the most plausible and politically achievable reform.

I think this is the only testimony from the Commission's initial hearing that addressed the issue from an expressly originalist perspective.  Testimony is also available at the Commission's website, here. (Originalist scholar Michael McConnell testified but his comments were more generally addressed to reform proposals, particularly increasing the size of the Court.)

The Commission's next hearing, on July 20, will include testimony from originalist-oriented scholars Akhil Amar, Ilya Shapiro, Stephen Sachs and Randy Barnett.

07/17/2021

Judge Kevin Newsom on Substantive Canons
Michael Ramsey

Concurring in Calderon v. Sixt Rent a Car LLC, Judge Kevin Newsom (Eleventh Circuit) has some sharp words for "substantive canons" and specifically the presumption in favor of arbitration adopted by the Supreme Court in Moses H. Cone Memorial Hospital v. Mercury Construction Corp. From the introduction:

In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., the Supreme Court held that contractual arbitration provisions should be broadly construed—in particular, that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” 460 U.S. 1, 24–25 (1983) (emphasis added). The Court purported to derive this strong presumption from the Federal Arbitration Act. But the Act’s pertinent text suggests nothing of the sort—it says only that certain written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. So far as I can tell, the Moses H. Cone canon is just made up. We should rethink it.

And from later on: 

First, and perhaps most obviously, the Moses H. Cone rule is a “substantive” interpretive canon, in that it directs courts to depart from a contract’s most natural interpretation in favor of—and to further—a policy preference for arbitration. For the uninitiated, canons of interpretation are conventionally divided between the “semantic” and the “substantive”—or some variation on that dichotomy. See, e.g., Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2121 (2016) (book review); Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 394 n.140 (2005) (“descriptive” vs.  normative”); William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1123 (2017) (“linguistic” vs. “legal”). Semantic canons do exactly what their name implies—they provide “the general rules by which we understand the English language.” Kavanaugh, supra, at 2145. They help courts ascertain the ordinary meaning of a legal text—such as by reminding us that that “[t]he expression of one thing implies the exclusion of others,” that “and combines items while or creates alternatives,” and that when words “are associated in a context suggesting that [they] have something in common, they should be assigned a permissible meaning that makes them similar.” Antonin Scalia & Bryan A. Garner, Reading Law: TheInterpretation of Legal Texts 107, 116, 195 (2012).

Substantive canons are an altogether different kettle of fish. They have little (if anything) to do with a text’s ordinary meaning, but rather instruct courts to favor certain substantive policies in interpreting that text. See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 96 (2001); Nelson, supra, at 394. They express the law’s supposed preferences when certain close interpretive calls arise. Thus, the contra proferentem canon expresses a preference that an ambiguity in a contract provision be interpreted against its drafter. See Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1417 (2019). Likewise, the rule of lenity expresses a preference that an ambiguity in a criminal statute be interpreted in the defendant’s favor. See Yates v. United States, 574 U.S. 528, 547–48 (2015).

Substantive canons have been the subject of debate among textualists. Some, including then-Professor Barrett, have written that “[s]ubstantive canons”—at least those that operate as more than mere tiebreakers—“are in significant tension with textualism . . . insofar as their application can require a judge to adopt something other than the most textually plausible meaning of a statute.” Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 123–24 (2010). While “[t]extualism, in its purest form, begins and ends with what the text says and fairly implies,” Scalia & Garner, supra, at 16, substantive canons “often require judges to depart from a [text’s] most natural interpretation,” Barrett, supra, at 121.

Others have suggested that a substantive canon’s validity depends not so much on whether it diverts courts from the most textually plausible reading, but rather on its legal pedigree. See Baude & Sachs, supra, at 1122–24. On this account, substantive canons may require courts to depart from the most natural interpretation of a legal text, but only when the common law, a statute, or a constitution commands that departure. So, for instance, the common-law rule of will construction “mak[ing] it difficult to disinherit one’s children,” although it “do[es]n’t necessarily track actual linguistic usage,” remains “binding on the parties simply because [it is] the law.” See id. at 1094–95; see also, e.g., Restatement (Second) of Contracts § 201(2) (1981) (providing default rules when parties attach different meanings to a contract term); 1 U.S.C. § 1 (“In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies[.]”) ); U.S. Const., amend. XI (“The Judicial power of the United States shall not be construed to extend to [certain suits against States].”). Importantly, though, even the defenders of substantive canons reject them to the extent that judges just make them up. See Baude & Sachs, supra, at 1138–39.

Accordingly, whichever of these two camps has it right—or however much daylight really exists between them—substantive canons not firmly grounded in the written or common law are, in my view, on extremely thin ice.

Agreed -- both in general and as to Moses H. Cone, which as Judge Newsom goes on to say, isn't a longstanding common law canon or grounded in the text or original meaning of the Federal Arbitration Act. 

More broadly, this is an interesting example of an originalist/textualist lower court judge confronting a Supreme Court precedent with dubious originalist/textualist grounding, an issue Josh Blackman discusses here.  It's also an example of how originalism leads to liberal results (assuming that resisting arbitration is a liberal result).

(Via How Appealing.)

07/15/2021

Blog Series on the Second Amendment and Corpus Linguistics
Michael Ramsey

At the Second Thoughts Blog (from the Duke Center for Firearms Law), a guest blog series on Corpus Linguistics and the Second Amendment.  From the announcement:

A few weeks ago, the Center hosted a virtual colloquium on Corpus Linguistics and the Second Amendment with experts who are at the forefront of the study of corpus linguistics and its application to a variety of legal questions. Approaching the issue from a broad range of interests, expertise, and backgrounds, these experts raised a host of interesting questions about the role of corpus linguistics in answering questions about the Second Amendment. We are excited to run a blog series with the incisive essays the participants generated and will be posting them here daily over the course of the next two weeks.

And here are the posts so far:

The ‘Strange’ Syntax of the Second Amendment by Kari Sullivan:

Corpora and Historical Texts by Stephen Mouritsen
 
More than Words  by Anya Bernstein
 

07/14/2021

Thomas H. Lee: The Original Constitutional Plan for the Federal Courts, 1787 – 1792
Michael Ramsey

Thomas H. Lee (Fordham University School of Law) has posted Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787 – 1792 (89 Fordham Law Review 1895 (2021)) (47 pages) on SSRN.  Here is the abstract:

This Article describes the original constitutional plan for the U.S. Supreme Court and the lower federal courts as set out in Article III of the U.S Constitution, debated at the Constitutional Convention and state ratifying conventions, implemented by the First Congress, and realized with the first case docketed at the Supreme Court, from 1787 to 1792. In so doing, it relies on close readings of three primary sources: Article IX of the Articles of Confederation, the Judiciary Act of 1789, and the Process Act of 1789. The first Judiciary Act is well known but not often read and analyzed holistically as a single, integrated enactment designed to address concerns voiced during the state ratification conventions. Article IX and the First Process Act are neither well known nor identified as key sources of Article III of the Constitution and its original meaning. This Article enlarges modern conventional wisdoms about the early U.S. federal courts by showing:

• Their distinctly pro-foreigner orientation as befitting a new weak state, in sore need of
inbound foreign trade, credit, and investment;

• The essentiality of the Supreme Court’s original jurisdiction to promote international and
interstate peace and harmony;

• The controversial nature of the Court’s appellate jurisdiction “both as to Law and Fact”
when the Constitution was discussed and adopted (1787–88), based on the example of
the national appeals court for captures under Article IX of the Articles of Confederation;

• The limited scope of state law rules of decision and procedures within the Article III
categories of federal judicial power that the First Congress actually vested;

• The relatively limited importance of Article III “arising under” federal jurisdiction as an
original matter outside of federal crimes and revenue laws; and

• The overall “nationalist” orientation of the federal courts, to subordinate state interests to
the overwhelming national survival interest in international and interstate peace and
commerce.

Aside:  Though it's not the main point of the article, I especially endorse this sentence (from the second page):

Additionally, part of section 9 of the Judiciary Act, which is commonly known as the Alien Tort Statute (ATS), permitted friendly and neutral “aliens” to sue for any torts—noncontract injuries to their persons or properties—while most out-of-state American tort plaintiffs would be blocked by a five-hundred-dollar amount-in-controversy requirement.

Agreed.  The point of what we now call the Alien Tort Statute was to bypass, for certain torts against aliens,  the $500 amount-in-controversy limit the Act imposed on ordinary diversity jurisdiction.  That's it.  The Supreme Court and modern scholars have tied themselves in knots over the Alien Tort Statute by failing to accept this basic (and really kind of obvious) point.  See here and here.

07/13/2021

Eric Segall on Textualism and State Sovereign Immunity
Michael Ramsey

At Dorf on Law, Eric Segall: Sovereign Immunity, Judicial Aggression, and the Rule of People not Law.  From the introduction:

When can states be sued in federal court for violating federal law, assuming a valid cause of action under either a statute or the Constitution? This question has major implications for our federalist system. The possible answers are always, never, or sometimes, and the stakes of the answer are incredibly high. Too much accountability could expose the states to federal control in ways that could damage their finances and sovereignty, but too little accountability could jeopardize the supremacy of important federal laws and the Constitution. Sadly, the Supreme Court’s answer to this important question (sometimes) is incoherent and terrible policy as well. This term, in Penn East Pipeline v New Jersey, the Court doubled down on its own incoherence.

The Constitution speaks directly to the question under what circumstances states are allowed to assert sovereign immunity in federal courts. The 11th Amendment provides the following:

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by a citizen of another state or by citizens or subjects of any foreign state.

Unlike most of the Constitution's clauses that are subject to litigation, like the equal protection clause, the due process clause, and the First and Second Amendments, the 11th Amendment could not be more precise. It was ratified after the Court held in Chisholm v. Georgia that a citizen of South Carolina could sue Georgia for debts owed after the revolutionary war. The public strongly disagreed and the 11th Amendment was ratified by the states a little more than a year later.

The Amendment unequivocally bars all lawsuits, whether in law (damages) or equity (injunctive relief) in federal court brought by citizens of "another" state. If the Court cared about text, the 11th Amendment would be easy to interpret and apply.

But, as I've documented in detail, the Court does not care about text if doing so is contrary to the Justices' policy preferences.

 He goes on to make some important points for originalist/textualists to grapple with.

07/12/2021

Paul Babie: Ancestor Worship, Living Trees, and Free Exercise in the Australian Constitution
Michael Ramsey

Paul T. Babie (Adelaide Law School, The University of Adelaide) has posted Ancestor Worship, Living Trees, and Free Exercise in the Australian Constitution (Canopy Forum, 2020) (8 pages) on SSRN.  Here is the abstract:

My question in this brief essay is simple: why should we care what the framers had to say, and whether we can find support in what they thought about a provision for contemporary Australia? My answer is equally succinct: we shouldn’t care. I suggest in this essay that we need not and ought not be so bound when interpreting Section 116. Instead, I propose, rather boldly for Australia, that we look to the words of Section 116 to understand its meaning for contemporary Australia. Rather than originalism, I suggest, we should pursue a “large and liberal” “living tree” interpretation of the words. We might even go further, and look to the way in which very similar words have been understood in a somewhat analogous context. In other words, I suggest, boldly, that we might find the spirit of the words of Section 116 revealed in the American experience with the First Amendment. But taking a large and liberal approach, informed by American experience might show us that the correct approach is already to be found, hidden in plain sight, in a decision of the High Court handed down almost 80 years ago.

And from the introduction (footnotes omitted):

The narrow interpretation [of the Australian free exercise clause] emerges from a fascination with a very Australian form of originalism, or “ancestor worship”, as Michael Kirby, a former High Court justice, has pejoratively called it. When encountered in the United States, originalism tends to be associated with those on the right, used in conjunction with “strict construction” so as to reach outcomes “that conservatives like.” [Ed.: well, I have several thoughts about hat point.] In Australia, however, appeals to originalism come from those of every political stripe, right and left, who together adhere to a consensus that what matters most when interpreting the Constitution in twenty-first century Australia is what the nineteenth century framers said about this or that provision when drafting it. The protagonists may disagree about what the framers said, but what matters, they say, indeed, all that matters, is the search for what the framers said and what they meant when they said it.

This strange ancestor worship began with the publication in 1901, contemporaneously with the coming into force of the Constitution, of John Quick and Robert Randolph Garran’s The Annotated Constitution of the Australian Commonwealth.8 John Quick was one of the framers and Garran was a secretary to some of the delegates to the Constitutional Conventions at which the drafting took place. As such, Quick and Garran’s approach to the new constitution generally, which was merely a recounting of the Convention Debates which produced the draft text enacted by the United Kingdom Parliament, formed the roots of a fascination with originalism that took hold in Australian soil. It has served as the foundation to most of the interpretation of the Constitution ever since.9 At its heart lies an unspoken assumption that one must always “return to the framers” as part of the process of interpreting what the Constitution means, and that doing so involves recourse to “Quick and Garran”. And the quest to return to the framers has, in a word, been distracting, diverting attention away from what a constitution ought to be and to do.

I did not understand that originalism was so widely accepted in Australia (albeit in a somewhat different form) -- it's interesting to see that claim, even if it's viewed negatively by the author.

07/11/2021

President Biden Constitutionally Fires the Commissioner of the Social Security Administration
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: The Constitutional Analysis Behind President Biden's Firing of the SSA Commissioner.  From the introduction:

In 1994, Congress restructured the Social Security Administration (SSA). For the prior five decades, the single-member Commissioner could be removed at will. But 42 U.S.C. § 902(a)(3) granted the Commissioner a fixed six-year term, and tenure protections. He could "be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office. At the time, OLC Head Walter Dellinger wrote that the restrictions present a "serous constitutional question." President Clinton issued a signing statement, asking Congress to enact a "corrective amendment." Congress took no such action.

For the past quarter century, the SSA Commissioner has served with tenure protections. And, as far as I am aware, there has never been an attempt to fire the SSA Commissioner. Until Friday, July 9. President Biden fired Commissioner Andrew Saul, a Trump holdover who was appointed to a six-year term in 2019. And, according to reports, Saul said he isn't leaving. He said, "I consider myself the term-protected Commissioner of Social Security." Saul plans to be at work Monday morning–though he will work remotely from New York.

Here is the Office of Legal Counsel (OLC) opinion endorsing the President's action, concluding:

In Collins v. Yellen, 141 S. Ct. 1761 (2021), the Supreme Court recently concluded that a provision requiring “cause” for the removal of the Director of the Federal Housing Finance Agency (“FHFA”) is unconstitutional. That case followed Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), in which the Court held unconstitutional a similar statutory tenure protection conferred on the Director of the Consumer Financial Protection Bureau (“CFPB”). We think the best reading of Collins and Seila Law leads to the conclusion that, notwithstanding the statutory limitation on removal, the President can remove the SSA Commissioner at will.

Agreed, both as to the effect of Collins and Seila, and as to the correct outcome from originalist principles.  The (single) head of the Social Security Administration exercises executive power and accordingly the President must control his actions, including through the ability to remove him from office if the President chooses, because all of the "executive Power" is vested in the President by the Constitution's Article II, Section 1.  (See Morrison v. Olson, Scalia dissenting).  Note that both President Clinton and President Biden (as well as Republican Presidents). endorse this view of the so-called "unitary executive."

It's true that the Court in Humphrey's Executor v. United States allowed statutory restrictions on presidential removal of members of the Federal Trade Commission.  But that opinion was confused in its reasoning and contrary to the original meaning of the "executive Power."  Whether or not it should be overruled, it shouldn't be extended -- and in Seila and Collins the Court -- rightly, in my view -- declined to extend it from a multimember board (in Humphrey's Executor) to an agency's sole director.  As I've argued elsewhere, whatever one thinks of overruling precedent, an aggressive version of the decline-to-extend directive is a way to turn the trajectory of the Court's decisions back toward originalist principles without overruling anything.

Professor Blackman flags the additional issue of the effect of the SSA's tenure provision being unconstitutional:

But to be more precise, OLC would sever the unconstitutional tenure protections from the remainder of the statute:

We think it clear that the SSA Commissioner's removal protection is severable from the remainder of the SSA organic statute, just as the Court in Seila Law determined that the removal protection provision for the CFPB Director was severable from the remainder of the Dodd-Frank Act.

It is strange for the executive branch to engage in a severability analysis. Unlike the courts, the President is not a disinterested party. And he has every interest in aggrandizing the maximum power for himself. Here, OLC performed that surgical excision. The SSA keeps all of its powers, but now the President can remove the Commissioner at will. This version of the law was certainly not the statute Congress enacted. But it was the version President Clinton, and now President Biden prefer.

This is the issue that divided the Court's majority in Collins, with Justice Gorsuch arguing that the unconstitutional removal provision made the agency head's actions void as ultra vires.  I'm less sure what I think about that question.

07/10/2021

Eric Segall on Stephanie Barclay on Originalism (with Comments from Andrew Hyman and Eric Segall)
Michael Ramsey

In the Deseret News, Stephanie Barclay (Notre Dame): Why constitutional originalism is not partisan,  From the introduction:

During confirmation hearings in recent years, the judicial philosophy known as originalism has faced nearly as much media scrutiny as the judicial nominees themselves.

When asked to explain this philosophy, then-Supreme Court nominee Amy Coney Barrett explained, “in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.” Supreme Court Justice Neil M. Gorsuch wrote in Time magazine that the originalist school of thought “seeks to conserve the meaning of the Constitution as it was written.”

Put another way, originalism teaches that the Constitution’s meaning is fixed at the point it was ratified by “We the People.” And when that meaning can be discerned, a judge’s job is to faithfully apply that law to the case at hand. Originalists argue that this principle is necessary to have a “government of laws, not of men.”

...

In other words, originalism done correctly should lead to rulings that are less likely to reflect the mere partisan preferences of a jurist.

At Dorf on Law, Eric Segall responds: Originalism as Myth.  From the core of the argument:

Virtually all originalists today agree that the one thing the many different families of originalism have in common is the bottom-line assumption that the meaning of the Constitution is fixed when ratified. But this bedrock premise is demonstrably false when it comes to virtually all constitutional litigation and even constitutional disputes outside the courts. As Professor Richard Fallon of Harvard Law School argues in an excellent recent paper, constitutional provisions simply do not "have a single, factually identifiable, original linguistic meaning."

...

The litigated Constitution provides general aspirations that most Americans, or at least most lawyers, law professors, and judges, agree with. Who is not in favor of freedom of speech, free exercise of religion, the equal protection of the laws, and granting everyone due process of law? Similarly, who doesn't disfavor cruel and unusual punishments, unreasonable searches and seizures, and double jeopardy? But constitutional law is not a referendum on the desirability of those aspirations. Instead, constitutional law is about whether current governmental decisions violate those aspirations. 

The reality on the ground is that the "meaning" of those vague and imprecise aspirations in 1791 or 1868 cannot be coherently applied to new problems, conditions, and technologies that the people who ratified those provisions never could have anticipated. Sure, there are paradigm applications like prior restraints or laws formally denying police protection to people of color but issues like those simply do not get litigated often enough to matter. What actually gets litigated or disputed are questions that no reasonable person could say are resolved by the so-called "fixed meaning" of imprecise language written centuries ago, Moreover, even if there once existed such a fixed meaning, its applications can change if judges think relevant facts have changed. Given that exit strategy, originalism simply does not occupy a meaningful space separate from living constitutionalism.

I have two responses.  The first (familiar to readers of this blog) is that Professor Segall overstates the extent of constitutional ambiguity.  My view is that originalism provides a reasonably determinate answer in many -- though surely not all -- litigated  cases.  (Often the answer is that the Constitution doesn't speak to the issue and so leaves it to the political branches).  Second, the existence of some cases that cannot be resolved by originalism doesn't invalidate originalism -- it just means originalism doesn't have all the answers.  Moreover, a plausible version of originalism holds that where originalism cannot provide an answer, a judge has no authority to override a statute or executive action.  This follows from the theory of judicial review expressed in Federalist 78 and in Marbury.  On this view, originalism does have the capacity to resolve litigation involving vagueness and ambiguity.

Professor Segall also faults Professor Barclay (and Justice Gorsuch) for citing Dred Scott v. Sandford as a failure of nonoriginalism: "Originalists need to stop pretending that the problem with Dred Scott is its lack of originalism. It is not true."  He quotes Chief Justice Taney in Dred Scott:

[The Constitution] is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.

It's true that this is a robust statement of originalism (and, incidentally, refutes claims that originalism was invented in the modern era by Robert Bork in the 1970s).  Yes, Taney felt compelled to claim that he was applying the Constitution's original meaning, particularly in light of Justice Curtis' appropriately harsh dissent.  The problem in Dred Scott was that Taney then manifestly misapplied the Constitution's original meaning (as Curtis' dissent makes clear).  There's simply no plausible originalist argument that the Constitution precluded free Blacks from citizenship: not only does the Constitution's text say nothing on the subject, but (as Curtis' dissent shows at length) free Blacks were citizens in some states at the time of ratification.  Further, there's simply no plausible originalist argument that the Constitution precluded Congress from prohibiting slavery in the territories: the First Congress prohibited slavery in the Northwest Territories (and no one at the time even suggested that was unconstitutional), and Taney's contrary claim under the due process clause (an early version of "substantive" due process) had no historical or textual basis.  Despite Taney's invocation of originalism as a general matter, the conclusion is inescapable that he departed from the original meaning for policy reasons (just as Curtis' dissent said he did).

ANDREW HYMAN COMMENTS:  Taney’s argument that Congress had no power to prohibit slavery in the territories was based upon a convoluted and non-originalist reading of the Territories Clause according to which that Clause did not apply to territory acquired after the 1780s:

The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power 'to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;' but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government.

This is why I think it’s a mistake to attribute Taney’s position (on congressional power to ban slavery in the territories) to “substantive due process.”  Other than that, I agree 100% with what Mike Ramsey said here.

ERIC SEGALL REPLIES:  A form of originalism that requires the plaintiff to show through clear and convincing evidence that the government has either violated clear text or mostly uncontested history before a plaintiff wins is a form of originalism I have long advocated.

07/09/2021

Podcast: "Originalism: A Deep Dive" by Will Baude and Adam Chilton
Michael Ramsey

Via Will Baude at Volokh Conspiracy:

[M]y colleague Adam Chilton and I spent last winter recording a quarter-long conversation about originalism. Our basic goal was to work through a systematic argument for originalism together, with me advancing my theory of constitutional interpretation while Adam asked questions, expressed skepticism, and generally tried to understand the strong and weak points of the argument (without necessarily being persuaded by it).

All seven episodes are now up:

07/08/2021

Ilya Somin versus Jonathan Adler on Takings
Michael Ramsey

At Volokh Conspiracy, inspired by three Justices dissenting last week from denial of certiorari in Eychaner v. Chicago, Jonathan Adler and Ilya Somin debate the original meaning of the takings clause.  

Jonathan Adler: Should an Originalist Justice Support Overruling Kelo v. New London?

Ilya Somin: Kelo, Originalism, and Public Use

The question is whether the Takings clause ("nor shall private property be taken for public use without just compensation") precludes the government from -- as in Kelo v. New London --  taking private property from one person and giving it to another private party to promote economic development. From Professor Adler's post:

Kelo v. New London is one of the most reviled Supreme Court decisions of the past twenty years. It prompted a substantial backlashspurred eminent domain reform throughout the nation, and inspired a movie. As a policy matter, it is abominable that the government may take someone's home to facilitate economic development plans of corporate interests, made all the more so here because the promised economic development never even occurred.

There is broad agreement (at least on the political Right) that such uses of eminent domain are bad. But does that mean the use of eminent domain for economic development is unconstitutional? I am unconvinced.

...

The first thing to note is that in the Takings Clause itself, "public use" is not written as a limitation. The text does not read "nor shall private property be taken other than for public use." Rather it identifies a type of taking—those "for public use"—that require compensation. "Public use" is used to differentiate a subset of takings. It is not written as a requirement or limitation.

Read in the context of the full amendment, this makes sense, for there are all sorts of takings or property for which compensation is not required, including taxes, fines, and seizures. Those takings require due process, but do not require "just compensation." It is when property is taken for a public purposes (as opposed to as a punishment or as an exaction) that compensation is required. To restate: The text requires Due Process for all takings of property, and then requires compensation for the subset of takings that are "for public use." Like it or not (and I most definitely do not) this is the most straight-forward reading of the constitutional text, and there is little historical or other evidence to the contrary.

From Professor Somin's response:

The key point is simply this: No significant jurist or legal commentator in the Founding era embraced [Professor Adler's reading] during the Founding era, or for many decades thereafter.  Significantly, nineteenth-century advocates of broad eminent domain power (and court decisions endorsing it) did not advance this theory. They instead argued for the broad view of public use.

If [Professor Adler's] approach were truly in accordance with original meaning, one would expect people at the time to note that and to deploy it as an argument for wide-ranging use of eminent domain. While federal government takings were rare during this period, most state constitutions had public use clauses with identical or similar wording to the federal one. Takings by state and local governments generated extensive public use litigation. Yet [Professor Adler's reading] is conspicuous by its absence in this period.

...

A number of other considerations also count against [Professor Adler's] theory. For example, if "public use" does not constrain the reasons why property may be taken, but merely indicates which takings require compensation, then that leads us to the absurd conclusion that even the most egregious takings for private interests do not require compensation, while takings for even the most important public infrastructure do.

In his post, Jonathan suggests that the phrase "public use" may differentiate one category of taking that requires compensation from others, such as taxes, fines, and seizures, that only require "due process." But then, as today, taxation and the imposition of fines for lawbreaking were not regarded as takings of property at all. By contrast, seizures unrelated to taxation, fines, or some types of exercise of the "police power,"  generally were regarded as takings of private property, and thus did require compensation. Indeed, one of the purposes of the Takings Clause was to prevent a recurrence of uncompensated seizures of property that had occurred under British colonial rule and during the Revolutionary War.

I agree with Professor Somin, basically for the reasons he states, but I would put them in the opposite order.  Professor Adler's reading appears to reach the bizarre result that takings for public use require compensation but takings that give property to other private parties to promote economic development (as in Kelo) do not require compensation.  I can think of no reason why the drafters would have chosen this result. (One possibility is that they thought takings for private use were precluded by the due process clause, but I'm not aware of much evidence in this direction and in any event, if true, it would lead to the same result as Professor Somin's reading of the takings clause.)  That should give us considerable doubt whether this is how the clause was originally understood.

Of course it's possible that the founding generation did understand the takings clause as Professor Adler suggests, no matter how peculiar it seems to us (or that they made a drafting error).  But Professor Somin's historical point then carries considerable force: if there isn't any evidence that anyone in the Founding era, or for many years afterward, read the clause as Professor Adler suggests, that's a good indication that he's not giving it its original meaning.

More broadly, I see this as an illustration of what Justice Scalia called the difference between "hyperliteralism" (which he opposed) and "fair reading" textualism (which he favored).  [See pp. 33-41 of Reading Law.] Literally and read in isolation, the text of the takings clause does indeed say what Professor Adler says.  But read in the context of the document as a whole and its background, it makes no sense to read it that way.  The "fair reading" is that by implication it precludes takings not for public use.

Consider a sign on the door of a store selling fragile merchandise: "Small dogs allowed only if leashed."  Are large dogs allowed unleashed?  Well, yes, if the sign is read "hyperliterally."  But surely not, under a fair reading.  Given the context, the obvious implication is that large dogs aren't allowed at all.

Update by Mike Rappaport: John McGinnis and I take a position similar to Professor Somin's on page 35 of this paper.  

07/07/2021

What to do About New York Times v. Sullivan
Andrew Hyman

On July 2, Justices Thomas and Gorsuch each discussed the case of New York Times v. Sullivan, while dissenting from denial of certiorari in the case of Berisha v. Lawson.  

Justice Thomas makes some valid points.  Many defamatory falsehoods go unremedied nowadays because NYT v. Sullivan required that certain plaintiffs (“public officials”) must prove that the statement in question is a reckless or deliberate falsehood rather than a mere negligent falsity.  The progeny of that case have enlarged its holding tremendously, for example extending it from public officials to all public figures. Not only do these judicial requirements mean that speakers and writers can get away with lots of harmful negligent falsities, but it also means they can get away with lots of reckless or deliberate falsehoods too because the plaintiff may only be able to prove they were negligent falsities.  Justice Brennan’s opinion in NYT v. Sullivan was skillfully written and is (superficially) closer to a persuasive originalist opinion than are the later opinions that amplified it.  Justice Thomas has elsewhere written that, “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”  Maybe so, but it might be tactically wiser to first seek to erode the decisions extending it, as Professor Glenn Reynolds counsels.

Justice Gorsuch’s dissent from certiorari in Berisha v. Lawson points out that even living constitutionalists should be concerned about adhering to a court decision that was made in the 1960s when the worlds of journalism, media, and communication were so vastly different from how they are in 2021:

[O]ur Nation’s media landscape has shifted in ways few could have foreseen….Departures from the Constitution’s original public meaning are usually the product of good intentions. But less clear is how well Sullivan and all its various extensions serve its intended goals in today’s changed world.

If the Court decides to leave Sullivan alone for now, it will have plenty of work to do cutting back on its progeny which bear virtually no resemblance to the historical argument against sedition bans that Justice Brennan made in Sullivan.  But if the Court instead decides to revisit Sullivan sooner rather than later, it will get right to the heart of the matter, and I’ll just summarize three issues that come to mind.

First, if a defendant wins after being sued for defamation by a public official, why not construe the First Amendment as requiring the plaintiff to pay defendants’ attorney fees? The American Rule (saying each side pays his own lawyer bills) apparently did not arise until after the First Amendment was written and ratified, and so the contrary rule could be considered an aspect of the First Amendment insofar as it safeguards freedom of speech.  Notice that I am assuming that the version of freedom of speech that has been applied against the states is the version that existed in 1792, rather than the version that existed in 1868, but I think that’s a correct assumption.  Letting these defendants get their attorney fees paid would greatly alleviate the danger of restoring the right of public figures to sue for negligent defamation.

A second problematic Sullivan-related issue that I’ll mention is Justice Brennan’s strong reliance upon James Madison’s reaction against the Alien and Sedition Acts.  If a plaintiff in a civil defamation case requests actual compensatory damages because of proven reputational harm (perhaps including attorney fees as I mentioned above), and only seeks punitive damages if actual malice is proved, then I am not seeing much similarity to the criminal penalties imposed by the Alien and Sedition Acts. 

A third issue with Sullivan is that some prominent people who were on Madison’s side during the debate about the Alien and Sedition Acts emphasized that state officials could go after negligent defamation even if the federal government could not.  As one scholar has described:

Jefferson was no advocate of a "licentious" press; like Hamilton and Adams he believed that the press ought to be restrained "within the legal and wholesome limits of truth."  He differed from the Federalists chiefly in insisting that this restraint be imposed by the states rather than by the Federal government….

The First Amendment prohibits “abridging the freedom of speech, or of the press,” and various scholars and judges have argued that the definite article “the” has some impact here.  Journalist Anthony Lewis acknowledged that, “The word ‘the’ can be read to mean what was understood at the time to be included in the concept of free speech.”  If people like Jefferson, Hamilton, and Adams were correct that state officials pre-1792 were not reluctant to counteract negligent defamation, then that suggests freedom from such counteraction was not considered part of the free speech concept.  Thus, the Constitution’s main restraint upon the federal government counteracting negligent defamation was not so much the First Amendment as the simple fact that none of the powers delegated to the Federal Government in 1789 included any power to regulate journalism (or to regulate defamation by anyone).  While I agree that the First Amendment applies fully against the states, I very much doubt that the Fourteenth Amendment went further by categorically stripping the states of the powers that had already been reserved to the states by the Tenth Amendment, such as power to deal with negligent defamation.

So, all in all, it seems like circumstances have changed a lot since Lester Bruce Sullivan lost his lawsuit in 1964.  And he should have lost, because the negligence of the New York Times was not enough to support punitive damages as a constitutional matter, and the trial verdict did not distinguish between compensatory and punitive damages.  But even though it got to a correct result, the U.S. Supreme Court could have reached it in a manner much more in keeping with the Constitution.  Incidentally, one of the most interesting things I read while researching this blog post was the partial retraction by the Times of the defamatory advertisement in question, which suggests that the Times did not intentionally defame anyone by publishing that advertisement.

Lastly, I would like to thank Professor Eugene Volokh for commenting (twice!) on earlier drafts of this blog post.  As usual, every opinion or mistake (or negligent defamation) above is my responsibility alone.

07/06/2021

Eliza Sweren-Becker & Michael Waldman: The Meaning, History, and Importance of the Elections Clause
Michael Ramsey

Eliza Sweren-Becker (Brennan Center for Justice at NYU School of Law) and Michael Waldman (Brennan Center for Justice at NYU School of Law) have posted The Meaning, History, and Importance of the Elections Clause (Washington Law Review, Vol. 96, No. 3, 2021) (70 pages) on SSRN.  Here is the abstract:

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving as the primary constitutional basis for democracy reform legislation that passed the U.S. House of Representatives in 2019 and was reintroduced in 2021. Increased interest heightens the need for a deeper understanding of the intent and meaning of the Elections Clause. This Article fills a gap in the literature by providing a comprehensive analysis of the purpose, meaning, and interpretation of the Elections Clause by the Framers, early Congresses, and federal courts.

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

07/05/2021

Randy Barnett on the Declaration of Independence
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: What the Declaration of Independence Said and Meant.  From the introduction: 

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.

The adoption of the Declaration, and the public affirmation of its principles, led directly to the phased in abolition of slavery in half of the United States by the time the Constitution was drafted as well as the abolition of slavery in the Northwest Territory. The Rhode Island gradual abolition law of 1784 read:

All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.

Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:

The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that "all men are endowed by their Creator with certain unalienable rights–and that among these are life, liberty, and the pursuit of happiness.

The Declaration was much relied upon by Abraham Lincoln and many others before him:

Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of "Liberty to all"–the principle that clears the path for all–gives hope to all–and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.

The assertion of that principle, at that time, was the word, "fitly spoken" which has proved an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.

The Declaration had to be explained away–quite unconvincingly–by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.

07/04/2021

Meir Soloveichik on John Trumbull's "Declaration of Independence"
Michael Ramsey

In the Wall Street Journal, Meir Soloveichik (Yeshiva University): Painting the Tension at America’s Founding Moment.  From the introduction:

The most famous image of America’s founding, John Trumbull’s painting “Declaration of Independence,” does not depict the events of July 4, 1776. Rather, it portrays a scene that took place on June 28, when Thomas Jefferson, John Adams, Benjamin Franklin, Robert Livingston and Roger Sherman presented the Declaration to the Continental Congress. Trumbull, who began his career as an artist after serving as an aide-de-camp to George Washington in the Continental Army, made his first small painting of this scene in the 1790s. In 1818 he completed a larger version, which several years later was placed in the Capitol, where it still hangs today.

John Adams, one of the few surviving founders, was wary of the project. The story of the Revolution, he wrote to Trumbull, was a complex layering of events and individuals. To reduce it to a single scene was dishonest: “Let not our Posterity be deluded by fictions under pretense of poetical or graphical Licenses.”

Thomas Jefferson, on the other hand, embraced Trumbull’s use of artistic license; without it, he wrote, “the talent of imagination would be banished from the art.” In fact, as the art historian Paul Stiati has written, the original painting had been Jefferson’s suggestion, which helps to explain why Trumbull made the author of the Declaration stand out, resplendent in a red vest and grasping the document in his hands. At first glance, “Declaration of Independence” seems to celebrate Jefferson as the author of America itself.

But as the historian David McCullough has pointed out, while Jefferson is prominent, it is Adams, the chief advocate of independence in the Continental Congress, who occupies the center of the canvas. Every other founder’s physique is partially obscured, while Adams can be seen in his entirety. Most great paintings give us one focal point, but this one has two.

This is appropriate, because Adams and Jefferson can be seen as the two intellectual poles of the Revolution. Jefferson was an ardent admirer of the Enlightenment and believed that the American founding would “show by example the sufficiency of human reason for the care of human affairs.” Adams also appreciated the power of reason, but like Edmund Burke across the Atlantic, he emphasized the importance of religious and moral tradition in preserving society.

More at the link, if you can get past the paywall.  Happy Fourth to all.

07/03/2021

John Mikhail: Does Originalism Have a Natural Law Problem?
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted Does Originalism Have a Natural Law Problem? (Law and History Review, Vol. 39, No. 2, pp. 361-367 (2021)) (7 pages) on SSRN.  Here is the abstract:

This invited commentary for Law and History Review discusses Jonathan Gienapp’s new article on originalism, “Written Constitutionalism, Past and Present”. Gienapp's critical move is to shift our attention from semantics to ontology. What is the Constitution? How was it conceived to exist in 1787, and how has that conception changed over time? These questions must be squarely addressed, he insists, before asking what the Constitution means. Does it follow that originalism's whole text-focused enterprise rest on a mistake? Drawing on a wealth of primary sources and modern scholarship, Gienapp makes a strong and interesting case that it does. Boiled down, his main argument is that the founders were predominantly natural lawyers, and thus conceived of law quite differently than most originalists typically do. This commentary critically examines Gienapp’s thesis, noting some potential challenges, and suggesting that perhaps the bigger problem with contemporary originalism is not that it takes the written Constitution too seriously, but that it doesn’t take the entire instrument seriously enough.

Professor Gienapp's article Written Constitutionalism, Past and Present also appears in Law and History Review and is available here (but will cost you $25). 

ANDREW HYMAN COMMENTS: The founders of the U.S. were believers in natural law. They had much faith in the ability of elected legislatures to find same. That’s different from supposing the founders meant for judges to strike down all statutes that the judges say violate natural law.

07/02/2021

Three Interesting Points from Justice Thomas
Michael Ramsey

In my view Justice Thomas remains the most interesting and provocative Justice.  Here are three points from his recent opinions.

First, concurring in Americans for Prosperity Foundation v. Bonta, the compelled disclosure of donors case, Thomas rests his conclusion on the First Amendment right of assembly:

The text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously. See 4 Annals of Cong. 900–902, 941–942 (1795) (defending the Democratic-Republican societies, many of which met in secret, as exercising individuals’ “leave to assemble”); see also Brief for Becket Fund for Religious Liberty as Amicus Curiae 13–20; Reply Brief in No. 19–251, pp. 3–5; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958) (discussing the history of anonymous publications). And the right to associate anonymously often operates as a vehicle to protect other First Amendment rights, such as the freedom of the press. McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 361–367 (1995) (THOMAS, J., concurring) (“Founding-era Americans” understood the freedom of the press to include the right of printers and publishers not to be  compelled to disclose the authors of anonymous works). 

Well, maybe.  The generally weak citations and the use of the word "suggest" are not encouraging.  But the right of assembly is understudied and underdeveloped, and it is more promising from an originalist perspective than whatever the majority thought it was relying on.  (See here for criticism from Josh Blackman).

Second, also from Americans for Prosperity:

... [T]he Court holds the law “overbroad” and, thus, invalid in all circumstances. Ante, at 16. But I continue to have “doubts about [the] origins and application” of our “overbreadth doctrine.” United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring) (slip op., at 1). That doctrine purports to grant federal courts the power to invalidate a law “if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Ibid. (internal quotation marks omitted). However, the Court has no power to enjoin the lawful application of a statute just because that statute might be unlawful as-applied in other circumstances. Id., at ___ (slip op., at 9); Borden v. United States, 593 U. S. ___, ___ (2021) (THOMAS, J., concurring) (slip op., at 4) (“a court cannot, consistent with separation of powers, enjoin enforcement of a statute where enforcement would be lawful”). And the principle that application of a law is always unlawful if “‘a substantial number of its applications are unconstitutional’” “lacks any basis in the Constitution’s text” and “contravenes traditional standing principles.” Sineneng-Smith, 590 U. S., at ___ (THOMAS, J., concurring) (slip op., at 1).

... [R]elatedly, this Court also lacks the power “to ‘pronounce that the statute is unconstitutional in all applications,’” even if the Court suspects that the law will likely be unconstitutional in every future application as opposed to just a substantial number of its applications. Borden, 593 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) (quoting Chicago v. Morales, 527 U. S 41, 77 (1999) (Scalia, J., dissenting)). A declaration that the law is “facially” unconstitutional “seems to me no more than an advisory opinion—which a federal court should never issue at all.” 593 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3). Courts cannot “strike down statutory text” or resolve the legal rights of litigants not before them. Ibid.

Agreed.  The whole idea of "facial challenges" and "striking down statutes" is (at the very least) in substantial tension with the understanding of judicial review expressed in Federalist 78 and in Marbury v. Madison.  A court declines to apply a statute, in a case before it, if the Constitution as superior law overrides the application of the statute in that case.  That's all.  The implications for other applications of the statute may or may not be apparent from the case's outcome, but they remain implications until actually presented and decided in a future case.  (Aside: if anyone is actually looking for a way to limit the power of the Supreme Court as a general matter, supporting this conception of judicial review would be something to consider.)

Third, dissenting in TransUnion LLC v. Ramirez (Article III standing under the  Fair Credit Reporting Act), Thomas disputes the injury-in-fact requirement for standing in some types of cases: 

Key to the scope of the judicial power, then, is whether an individual asserts his or her own rights. At the time of the founding, whether a court possessed judicial power over an action with no showing of actual damages depended on whether the plaintiff sought to enforce a right held privately by an individual or a duty owed broadly to the community. See Spokeo, Inc. v. Robins, 578 U. S. 330, 344–346 (2016) (THOMAS, J., concurring); see also Thole v. U. S. Bank N. A., 590 U. S. ___, ___–___ (2020) (same) (slip op., at 1–2); 3 W. Blackstone, Commentaries on the Laws of England 2 (J. Chitty ed. 1826); 4 id., at 5. Where an individual sought to sue someone for a violation of his private rights, such as trespass on his land, the plaintiff needed only to allege the violation. See Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817 (K. B. 1765). Courts typically did not require any showing of actual damage. See Uzuegbunam v. Preczewski, 592 U. S. ___, ___–___ (2021) (slip op., at 5–6). But where an individual sued based on the violation of a duty owed broadly to the whole community, such as the overgrazing of public lands, courts required “not only injuria [legal injury] but also damnum [damage].” Spokeo, 578 U. S., at 346 (THOMAS, J., concurring) (citing Robert Marys’s Case, 9 Co. Rep. 111b, 112b, 77 Eng. Rep. 895, 898–899 (K. B. 1613); brackets in original).

This distinction mattered not only for traditional common-law rights, but also for newly created statutory ones. The First Congress enacted a law defining copyrights and gave copyright holders the right to sue infringing persons in order to recover statutory damages, even if the holder “could not show monetary loss.” Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917, 972 (CA11 2020) (Jordan, J., dissenting) (citing Act of May 31, 1790, §2, 1 Stat. 124–125). In the patent context, a defendant challenged an infringement suit brought under a similar law. Along the lines of what TransUnion argues here, the infringer contended that “the making of a machine cannot be an offence, because no action lies, except for actual damage, and there can be no actual damages, or even a rule for damages, for an infringement by making a machine.” Whittemore v. Cutter, 29 F. Cas. 1120, 1121 (No. 17,600) (CC Mass. 1813). Riding circuit, Justice Story rejected that theory, noting that the plaintiff could sue in federal court merely by alleging a violation of a private right: “[W]here the law gives an action for a particular act, the doing of that act imports of itself a damage to the party” because “[e]very violation of a right imports some damage.” Ibid.; cf. Gayler v. Wilder, 10 How. 477, 494 (1851) (patent rights “did not exist at common law”).

I'm back to "well, maybe" here, but it's worth considering.  While I'm confident that standing as a general matter arises from Article III's vesting of the "judicial Power" over cases and controversies, the contours of that doctrine in modern cases seem only loosely tied to originalist sources.  Simply invoking the injury-in-fact requirement ("No concrete harm, no standing," as the majority says) isn't enough.  That was Justice Scalia's view in Lujan v. Defenders of Wildlife, the foundational modern standing case, but that case involved what Justice Thomas calls "a duty owed broadly to the community."

In any event, these points all seem important to think about.

07/01/2021

Aaron Coleman Reviews "The Political Philosophy of the Federalist Papers and the Ratification Debates"
Michael Ramsey

At Law & Liberty, Aaron Coleman (University of the Cumberlands -- History) reviews From Reflection and Choice: The Political Philosophy of the Federalist Papers and the Ratification Debates (Will R. Jordan, ed., Mercer University Press 2020).  From the introduction:

A cottage industry exists around analyzing The Federalist. The scholarly literature is so extensive that finding something fresh to say about the work could prove a Herculean task. The essays in Will R. Jordan’s edited collection, From Reflection and Choice: The Political Philosophy of the Federalist Papers and the Ratification Debates, reveal, however, that scholars continue to raise important questions that need answering. 

From Reflection and Choice contains nine essays, all by political theorists. Divided into two sections, “The Founders’ Project” and “Legacy and Applications,” the range of authors and topics is impressive. Too large and impressive, in fact, to detail in a review, so this essay will provide only summaries before offering thoughts about the volume as a whole. 

Here is the book description from Amazon:

The essays in this collection were first presented at the 2018 A.V. Elliott Conference on Great Books and Ideas, the eleventh annual conference sponsored by Mercer University's Thomas C. and Ramona E. McDonald Center for America's Founding Principles. The current era of intense partisan conflict is unlikely to be remembered for the excellence of its public discourse. Given this fact, we do well to remind ourselves that Americans were once capable of debating even the most important political questions in the popular press, and doing so at an extraordinarily high level. The debate over the ratification of the Constitution in 1787-1788 enlisted some of the country's greatest minds, and wrestled with issues fundamental to popular government in general and to the United States constitutional order in particular. This volume returns to the debate between Federalists and Anti-Federalists, seeking to better understand the principles at stake, and asking, with Publius, "whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." The book is divided into two major sections. The first considers the ratification debate itself, to examine first principles, and to get a clearer sense of the founders' project. The second turns to the ways in which the terms of the ratification debate echo down through American history and how they might be applied to inform contemporary political practice. 

Contributors include Jeremy D. Bailey, Roger Barrus, Elizabeth Kaufer Busch, Murray Dry, Kimberly Hurd Hale, Jon D. Schaff, Lynn Uzzell, Karl Walling, and Michael Zuckert.

And more from Professor Coleman's review:

From Reflection and Choice is a solid and thought-provoking collection of essays. Yet several issues mar the collection. First, too many essays are frustratingly condensed, leaving the authors’ thoughts half-expressed—almost as if the publisher refused to go beyond a specific page limit. Bailey’s essay exemplifies this problem. Madison’s argument that courts should be neutral umpires is convincing but stops almost as soon a Bailey makes it. This abrupt ending leaves his essay open to criticisms that it might have headed off with more space. If, for example, Madison believed the federal courts had the final say in questions of federalism, why did Madison not include this belief in the Virginia Resolutions, his most famous defense of state sovereignty against federal encroachment? Was it due to his not wanting to upset Jefferson and his blunt assessment of the federal judiciary? Was the direct threat to liberty posed by the Alien and Sedition Acts too substantial to leave only to the Courts? If interposition is a “duty,” as Madison claims, at what point do states relinquish this duty to the court? No doubt Bailey can offer answers to these questions, but since the essay breaks off just as he starts making his actual argument, it limits an otherwise fine contribution. 

My second, and more general criticism, focuses on methodology. Too much of the first section is Madison-centric. Other than one essay about Hamilton, the book’s first section ignores the other Federalist authors. Jay’s only serious appearance comes in Walling’s piece. This focus on Madison transforms the book’s first section into the great Virginian’s political philosophy more than The Federalist’s. Having an essay about Hamilton’s misjudgment about the federal judiciary or Bill of Rights, for example, would have added an excellent follow-up topic to Bailey’s article, while Jay’s discussion of the nature of the union versus that of the Anti-Federalists are natural topics that the book ignores at the expense of Madison.

06/30/2021

Balkinization Symposium on Kurt Lash's "The Reconstruction Amendments: Essential Documents": Complete Contributions and Professor Lash's Response
Michael Ramsey

At Balkinization, the symposium on Kurt Lash's "The Reconstruction Amendments: Essential Documents" is now complete.  Professor Lash has a general response.  Here are the contributions:

What is Reconstruction? by Gerard N. Magliocca

Kurt Lash and the Canons of Constitutional Law by Jack Balkin

Kurt Lash on Reconstruction (1): Defining the topic, setting the canon by Sandy Levinson

Kurt Lash on Reconstruction (2): Is the Fifteenth Amendment an Embarrassment? by Sandy Levinson

Not Too Much, Not Too Little: Frederick Douglass in Kurt Lash’s Reconstruction Volumes by Bradley Rebeiro 

What Reconstruction Demonstrates about Constitutional Change by Richard Primus 

The Reconstruction Amendments’ Canonical Texts by Darrell A.H. Miller

Embracing the Entirety; Close and Distant Reading of The Congressional Globe by Lea VanderVelde

An Unparalleled Reconstruction Political Time Machine by Christopher Green

The Continuing Value of Documentary Collections in Originalist Theory by Lee J. Strang

Originalism, Methodology, and the Reconstruction Amendments by Jennifer L. Mascott

From Professor Lash's response:

My deep and sincere thanks to Jack Balkin for hosting this symposium on “The Reconstruction Amendments: Essential Documents (2 vols.) (Kurt T. Lash, ed.) (University of Chicago Press 2021). Before responding to some of the questions and concerns raised in these remarkable essays, please allow me a moment to note how positively the reviewers responded to the collection: 

“Kurt Lash now stands alongside Max Farrand in doing extraordinary work to further constitutional knowledge by making a critical portion of our past more accessible.” (Magliocca)

 A “remarkable scholarly achievement.” (Balkin)

 A “splendid collection” and “an invaluable source of material (and insight) for anyone charged with teaching courses on the Constitution” (Levinson)

“Lash has hit the Aristotelian mean, providing just the right amount of primary material to facilitate insight into the political and constitutional complexities leading up to and engulfing the Reconstruction period. Scholars, judges, and citizens who seek to investigate the intricacies of Reconstruction will find Lash’s The Reconstruction Amendments: The Essential Documents invaluable.” (Rebeiro)

“[A]n impressive achievement: thorough, textured, and provocative.” (Primus)

“Canonical Texts” presented in a “masterful two volume set . . .. Lash has produced a single, critical resource for understanding a profound moment in American constitution making—a resource that is long, long overdue. . . . Lash has produced a book that every constitutional scholar and historian needs to own.” (Miller)

“[An] Unparalleled Reconstruction Political Time Machine” that “is, without a doubt, the best single place to go in order to recapture, first-hand, the intellectual environment from which the Thirteenth, Fourteenth, and Fifteenth Amendments emerged. It deserves a place on a shelf—given its heft, a relatively sturdy shelf—of every serious student of the Constitution.  . . . [This] wonderful and amazing achievement  . . . will permanently transform the way the Reconstruction amendments are discussed and studied.” (Green)

“Lash’s volumes curate sources ranging from newspaper articles to public speeches and letters to judicial opinions and congressional debates” [and are an] “indispensable” and “critical resource for anyone who values the historical meaning of this deeply important constitutional text. . . Lash’s work should be seen as a critical resource for both jurists and academics” (Mascott) 

After ten years of toil, this kind of response is deeply gratifying.

Now to the concerns and (light) criticisms. ...

06/29/2021

Jeremy Telman: Which Part of 'Our Law' Is Originalism?
Michael Ramsey

D. A. Jeremy Telman (Oklahoma City University School of Law) has posted Which Part of 'Our Law' Is Originalism? (50 pages ) on SSRN.  Here is the abstract:

Will Baude and Stephen Sachs have argued that originalism should bind courts because originalism is “our law.” This Article attempts to specify, from the perspective of positive law, what part of our law originalism could be. It does so by identifying three challenges that Baude and Sachs face: a Kelsenian problem, a Hartian problem, and an empirical problem. The Article next considers Andrew Coan’s hypothetical constitutional amendment as a solution. The Article concludes that Baude and Sachs’s argument that originalism is our law remains deficient from the perspective of positive law.

I think originalism is some of our law but not all of our law.