11/30/2021

Originalism and Dobbs
Michael Ramsey

Some commentators have suggested that if the Supreme Court, composed of six originalist or originalist-oriented Justices, fails to overrule Roe v. Wade in the pending Dobbs case (to be argued tomorrow), that would be a substantial blow to originalism.  (For example, here from former Attorney General Meese and here from Josh Blackman).

I think this view is mistaken (or at least, that it should be mistaken).  Dobbs is not about originalism. Most mainstream originalists think Roe was wrongly decided on originalist grounds.  I assume all six of the originalist/originalist-oriented Justices think so.  (Jack Balkin famously argues that Roe can be defended on originalist grounds, but he's not a mainstream originalist on this issue).

Dobbs is in part about stare decisis -- should Roe be overruled?  Originalism has no consensus answer to that question.  Like most if not all theories of constitutional interpretation, originalism has a troubled relationship with prior precedents that failed to apply its principles.  Among originalists, views range from fairly strong adherence to stare decisis for non-originalist precedents to complete rejection of stare decisis for non-originalist precedents.  Whatever the Court might say about stare decisis and Roe, it is likely to be compatible with some forms of originalism. To say that originalism compels overruling Roe is mistaken; only originalism plus some contested theory of stare decisis would compel overruling Roe.

This is, of course, something of a failure of originalism.  To be an effective practical approach to adjudication, originalism needs a broader consensus on its relationship to stare decisis.  But this is not something particular to the Dobbs case.

Dobbs is, in addition, potentially a case about broad versus incremental adjudication (if the Court decides that the petitioners should prevail).  The question presented in Dobbs is "Whether all pre-viability prohibitions on elective abortions are unconstitutional."  The Court could answer that question "no" without addressing the question whether any pre-viability prohibitions on elective abortions are unconstitutional.  That is, it could resolve Dobbs without deciding whether to completely overrule Roe.  It would have to reject the part of Roe's opinion that declared the viability line, but it would not need to address the broader question whether Roe's basic conclusion -- that the Constitution requires some protection for abortion rights --  should be rejected in its entirely.

Whatever one thinks of this incremental position (and some commentators sharply reject it), it does not pose a question that originalism can answer.  Whether to overrule broadly or narrowly is two steps removed from originalism -- it is a question about how to apply stare decisis, not a question about how to apply the Constitution's original meaning.

Thus I don't see why Dobbs, however it is resolved, should be a threat to originalism.  The Court could decide to retain Roe's viability line or (more likely) reject the viability line without addressing other aspects of Roe; neither outcome would be contrary to any consensus of originalist views about the relationship between originalism and stare decisis.

UPDATE:  At Re's Judicata, Richard Re argues for an incremental approach: Who’s Afraid of Gradualism in Dobbs?  From the core of the argument:

The Roberts Court has repeatedly shown a similar instinct for gradualism. Before major decisions on issues like campaign finance regulation and same-sex marriage, for instance, the Court signaled its interest in issuing a transformative ruling long before actually doing so. In the meantime, the Court moved slowly, taking only small steps before bold action. The idea that the Court should give notice before issuing a disruptive decision, which I have called “the doctrine of one last chance,” has many benefits. Giving the losing side one last chance to make its case can clarify how the justices are reasoning through the issue, expose that reasoning to sustained scrutiny and criticism, and prompt the Court to adjust course. Even if the Court follows through on its initial views, providing notice can prompt action by the political branches and help smooth out disruptive legal changes. 

The Court’s newest justices have continued the one-last-chance approach. Earlier this year, the Court considered whether to overrule a major precedent on religious liberty. Justice Barrett, joined by Justice Kavanaugh, declined to do so—not because they thought the precedent was correct, but rather because they were unsure just how to replace it. There is no doubt that these justices have thought deeply about religious liberty, yet they still saw wisdom in proceeding cautiously. And that intuition may already have been borne out, given the “difficulty” of later cases. In Dobbs, a similar approach could support a limited holding...

Whatever one thinks of this argument, originalism doesn't play a role in it, one way or the other.  Originalism doesn't tell us whether Justices should be gradualists or not.

11/29/2021

Jed Shugerman on Uses of "Vesting"
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted 'Vesting' Uses in UVA Rotunda Founding Era Collection, 1776-1789 (Stanford Law Review, Vol. 74, forthcoming 2022)  (133 pages) on SSRN.  Here is the abstract:

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible). Many originalists generally tend to assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances.

Unitary judges and scholars, however, have not provided historical evidence that “vest” had such an original public meaning. This spreadsheet is part of "Vesting" (forthcoming, Stanford Law Review 2022), an article offering a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances.

This survey of the word "vest" ("vested," "vesting," etc.) in the Framers’ writings in the University of Virginia's Founding Era Collection (the papers of Washington, Adams, Hamilton, Madison, Jay, and Jefferson, and the Ratification debates) from 1776 to 1789 produces approximately 1,000 different uses. Most of the uses refer to "vesting" by itself as a grant of power, but approximately 10% modify the word "vesting" with words like "fully," "solely," "exclusively," "completely," or "absolutely," or with references to "plenipotentiary" or "all" power (or similar modifiers), specifying a more robust kind of vested power. Conversely, approximately 1% of the uses added words like "limited" or "partial" vesting and the like, specifying a weaker kind of vesting. These uses suggest that the word "vest" by itself did not signify complete or unconditional power, but it needed to be supplemented. This survey indicates a range of usage, from “fully vested” to simply vested to “partly vested,” and uses like "fully vested" appeared frequently in the context of military authority, diplomatic authority, and legislative powers over taxation and commercial regulation, suggesting that some kinds of traditional executive power and legislative power might be more complete, but not all kinds of such powers.

This study of “vesting” in eighteenth-century constitutions and databases of Framers’ writings so that the “all” in the Legislative Vesting Clause may be more legally meaningful and potentially more support for the non-delegation doctrine, but the absence of "all" or similar words from Article II weakens the unitary executive theory of indefeasible executive power.

11/28/2021

Michael Morley: The Independent State Legislature Doctrine
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted The Independent State Legislature Doctrine (Fordham Law Review, Vol. 90, 2021) (60 pages) on SSRN.  Here is the abstract:

The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years that followed. During the 2020 presidential election cycle, however, several Justices issued opinions demonstrating an interest in recognizing and enforcing the doctrine.

This Article contends that the doctrine is best understood as a general principle that gives rise to a range of different potential corollaries, each of which is supported by somewhat differing lines of precedent, reasoning, historical practice, and prudential considerations. Each of these potential implications of the doctrine may be assessed separately from the others; the doctrine need not be accepted or repudiated wholesale. The fact that a court or commentator may accept or reject certain applications of the doctrine does not mean that other aspects, or the doctrine as a whole, must be similarly embraced or jettisoned. This Article unpacks the independent state legislature doctrine, exploring and offering a normative perspective on each of its possible corollaries.

(Via Legal Theory Blog, where it is "Download of the Week" and "Highly Recommended".)

11/27/2021

Michael Mannheimer: Fugitives from Slavery and the Lost History of the Fourth Amendment
Michael Ramsey

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Fugitives from Slavery and the Lost History of the Fourth Amendment (53 pages) on SSRN.  Here is the abstract:

Conventional historical accounts of the Fourth Amendment generally ignore the entire antebellum period. Fourth Amendment scholars of an originalist bent typically look to the three decades from the American Writs of Assistance controversy and the British Wilkesite cases in the 1760s, to the adoption of the Bill of Rights in 1791. Scholarship then jumps to the post-Civil War period and the first two Supreme Court decisions interpreting the Amendment, In re Jackson in 1878 and United States v. Boyd in 1886. Ignoring the entire antebellum period makes some sense given that the Supreme Court did not decide a single Fourth Amendment cases during this lengthy period.

But just because the Court did not make any Fourth Amendment law does not mean that the Amendment lay dormant. The Amendment was, in fact, very much alive in the hands of Northern lawyers and state legislators resisting the seizure of people of color in their States as alleged fugitives from slavery, whether under the auspices of the Fugitive Slave Acts of 1793 and 1850 or under the so-called common-law “right of recaption.” Lawyers representing alleged fugitives from slavery and state legislators trying to protect free persons of color from being kidnapped into slavery mobilized the Fourth Amendment as a preservation of state control of seizures within each respective State. According to this theory, while the Constitution’s Fugitive Slave Clause required that enslaved persons escaping bondage be “delivered up,” the Fourth Amendment demanded that any claim that a person was a fugitive from slavery would have to be adjudicated by the procedures established by the State where the claim was made. Seizing an allegedly enslaved person without heeding those procedures could subject the slave catcher to civil and criminal liability under state law. In the infamous case of Prigg v. Pennsylvania, the Supreme Court, rather than tackle this Fourth Amendment argument, simply ignored it and broadly rejected States’ attempts to regulate the seizure of allegedly enslaved persons within their borders. Ultimately, this view of the Fourth Amendment as a preservation of state control was forever lost.

Aside: is Prigg v. Pennsylvania actually the worst Supreme Court decision of the nineteenth century from an originalist perspective?  You'd think Dred Scott would have an unassailable claim.  But at least Chief Justice Taney in Dred Scott acknowledged the need to follow the Constitution's original meaning (while maliciously distorting it). Justice Story, usually a somewhat reliable originalist, simply ignored the Constitution to get where he wanted to go in Prigg -- like Taney in Dred Scott, futilely seeking to impose a political settlement from the bench.

11/26/2021

Eric Segall on Textualism and Purposivism
Michael Ramsey

At Dorf on Law, Eric Segall: Interpreting Law and the Useless Debates Over Textualism and Purposivism.  From the introduction: 

There is a tremendous volume of legal scholarship on the proper way to read statutes ... The main dispute today is between those who identify as "textualists" or "strict textualists" and those who identify as "purposivists." The most important difference between these theories, which is often overstated, is that textualists focus mainly on the statutory text, and in most cases the common usages of the words in that text, while purposivists, while starting with the text, are also concerned with the purposes of the law at issue and the consequences of whatever interpretation the court decides to adopt. Everyone agrees these issues only arise when the statute in question is imprecise or unclear. Where the law is capable of only one meaning, judges should apply that meaning absent gross absurdity.

This blog post has one narrow objective given the oceans of words that have been spent on this topic, especially recently. With one minor exception, this post argues that this debate is silly and unnecessary. The reality is that textualists and even those who claim to be strict textualists often use the techniques of purposivists and purposivists of course take the text of statutes quite seriously. This debate is spent and we all should move on, as I explain below.

The one exception is for those judges who, following the lead of Justice Scalia, believe that legislative history should be ignored completely when they interpret statutes. This extreme position, which luckily very few judges accept, could certainly make a difference in some cases, especially in terms of the justifications for results judges write into their opinions. This blog post ignores the issue, however, because it has little bearing in the real world and the position is absurd, especially for a Justice who thought judges should try to ascertain the original public meaning of the ancient words of the United States Constitution by looking at sources such as the Federalist Papers.

We should move on from the textualist-versus-purposivist battles because, to put it simply, judges should use all relevant information to try and ascertain the meaning of statutory text and the purposes behind the law, which often includes a judge's best sense of what the law was trying to accomplish. There is simply not an either/or choice between text and purpose. The two are related and judges should not ignore one at the expense of the other. How the two will be balanced will of course depend on the specific facts and context of each case. ...

I mostly agree, particularly as to the point that textualism embraces context, with a couple of caveats and reservations:

(1) Professor Segall seems to be talking about an "original intent" version of purposivism that interprets the text in accordance with the purpose (intent) of the enactors at the time of enactment.  So described, it is a version of originalism (though perhaps somewhat distinct from textualist originalism).  There is, I think, another version of purposivism that asks something like: what result would the enactors want today if they were familiar with modern circumstances?  This version is very different from textualism.

(2) I'm not sure that all purposivists agree that "Where the law is capable of only one meaning, judges should apply that meaning absent gross absurdity."  I think at least some purposivists think that one can depart from the text if it leads to results contrary to the purpose (intent) of the enactors.  Text is a relevant factor, they would say, but isn't decisive in itself.   If so, that's sharply distinct from textualism, which would not allow such a departure.

(3) Scalia's rejection of legislative history was not a rejection of context.  It was founded on two main principles: (a) if the statute is clear, one should not use legislative history to pursue a supposed purpose of the statute that is contrary to its text (this is related to point (2) above); and (b) in interpreting an ambiguous statute, modern legislative history is so unreliable and subject to manipulation that it shouldn't count as evidence of meaning.  The latter point isn't a denial of the relevance of context; it's a specific denial of the relevance of modern legislative history.  That's why there's no contradiction between Scalia's rejection of modern legislative history and his use of founding-era contextual materials such as the Federalist Papers to interpret the Constitution.

11/24/2021

Professors Barnett and Bernick on the Civil Rights Act of 1866
Andrew Hyman

I’d like to comment about the new book titled The Original Meaning of the 14th Amendment by Professors Randy Barnett and Evan Bernick.  It’s a very useful expression of their views, and includes discussion of the Civil Rights Act of 1866, which was written only a few months before Congress wrote the 14th Amendment.  The CRA is critical background for understanding the 14th Amendment, and no consensus about the latter will ever be likely without consensus about the former. 

Among other things, the CRA says that citizens “shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, and convey real and personal property as is enjoyed by white citizens ….” (emphasis added).  Barnett and Bernick correctly write that the CRA “is conventionally read as solely prohibiting discrimination with respect to the civil rights specified in the act.”  But they instead advocate a fundamental-rights reading, whereby the words “is enjoyed” refer to the time when the CRA was enacted.  The relevant laws at the time of enactment had to be not just extended to people of color, but also substantially preserved, they suggest.  On the contrary, I think the conventional antidiscrimination-only reading is the right one, and there is plenty of evidence for it in the statutory text itself. 

Professors Barnett and Bernick argue that the CRA forbade states from denying the listed rights (to sue, give evidence, et cetera) to any citizen, even if the state treats everyone the same and without racial discrimination.  They hasten to add that states do not all have to conform to these rights “in precisely the same way.”  Thus we are assured that states have enough flexibility so they would not be obliterated by Congress and the federal courts.  A huge problem with that thesis is the fact that the less “precisely” we read the CRA’s requirement, the less precisely we can ban racial discrimination; it is much more likely that the CRA allowed precisely no racial discrimination with respect to the listed rights.

Some people may be inclined to think that use of the present tense language “is enjoyed” in section one of the CRA points to the time of enactment.  However, section two of the CRA also uses the present tense in a similar way (emphasis added):

[A]ny person who … shall subject, or cause to be subjected, any inhabitant of any State or Territory to … different punishment, pains, or penalties … by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor….

Obviously, this refers to punishments that are prescribed as of the time the misdemeanor is committed, not the earlier time when the CRA was enacted, and thus section two tends to confirm a similar reading of section one.

            There are a few other parts of the presentation by Barnett and Bernick that I thought could have used some expansion regarding the CRA.  For example, various members of Congress indicated in 1866 that the CRA was fully justified by the Thirteenth Amendment, which seems to imply that they favored an antidiscrimination reading.  There are also explicit endorsements of the anti-discrimination reading, like this one by Senator Lyman Trumbull who wrote the CRA:

This bill in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property. It could have no operation in Massachusetts, New York, Illinois, or most of the States of the Union.

Where are the unequivocal quotes on the other side of this CRA issue?  Finally, Professors Barnett and Bernick mention that the CRA was worded so that women and children would not automatically get any rights at the expense of men.  The antidiscrimination reading would seem to allow states the freedom to improve those old laws, but a fundamental-rights reading would apparently either preserve the status quo or else give judges discretion to decide that disagreeable aspects of the CRA-listed rights are not fundamental.  Again, it would be useful to see unequivocal quotes opposing Senator Trumbull.

11/23/2021

Mark Storslee: Church Taxes and the Original Understanding of the Establishment Clause
Michael Ramsey

Recently published: Mark Storslee (Penn State), Church Taxes and the Original Understanding of the Establishment Clause (169 U. Pa. L. Rev. 111 (2021)).  Here is the abstract: 

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from ‘aiding’ or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps to explain a striking fact about the Founding era that the no-aid theory has largely ignored—the pervasive funding of religious schools by both the federal government and the recently disestablished states. But it also has important implications for modern law. Most significantly, it suggests that where a funding program serves a public good and does not treat the religious aspect of a beneficiary’s conduct as a basis for funding, it is not an establishment of religion.

(Via Paul Caron at TaxProf Blog.)

11/22/2021

Nicholas Serafin: Redefining the Badges of Slavery
Michael Ramsey

Nicholas Serafin (Santa Clara University - School of Law) has posted Redefining the Badges of Slavery (University of Richmond Law Review, forthcoming) (42 pages) on SSRN.  Here is the abstract:

In The Civil Rights Cases the Supreme Court held that Section 2 of the Thirteenth Amendment grants Congress the authority to eliminate the “badges of slavery.” Many legal scholars have argued that some contemporary injustices impose a badge of slavery and thus can be addressed via Section 2 legislation. For example, Section 2 has been cited as grounds for addressing hate speech, racial profiling, sexual orientation discrimination, violence against women, limitations on the right to an abortion, sexual harassment, and more.

But what precisely is a badge of slavery? Relatively few legal scholars have attempted to answer this prior question. Those who have argue that the badges metaphor referred narrowly to antebellum practices that threatened to reimpose chattel slavery. According to this view, few, if any, contemporary injustices threaten to reimpose chattel slavery, and so few, if any badges of slavery remain. Thus, legislation addressing contemporary injustices falls outside of Congress’s Section 2 authority.

No one has attempted to defend a more expansive view of Section 2 by appealing to the legal history and to the original public meaning of the badges metaphor. This paper provides just such a defense. In this Article I demonstrate that the badges metaphor has always possessed a broad range of application. The badges metaphor extended beyond race and chattel slavery to gender- and class-based subordination. Moreover, the badges metaphor first appears not in the Civil Rights Cases, as is most often claimed, but in Dred Scott v. Sandford. Justice Taney’s usage of the metaphor in Dred Scott is deeply revealing and supports an expansive reading of Section 2, yet it has been overlooked by contemporary legal scholars.

Drawing on the popular and legal history of the badges metaphor, I defend the view that a badge of slavery results from laws or social customs that impose stigmatic harms upon subordinate social groups. I then demonstrate how this expansive understanding of Section 2 can be used to support attempts to eradicate contemporary badges of slavery.

11/21/2021

The 1791 Understanding of the Bill of Rights Versus the 1868 Understanding
Andrew Hyman

Professor Kurt Lash recently proposed that the first two clauses of the 14th Amendment “respoke” the Bill of Rights, and thus gave to the older words of 1791 an updated meaning as of 1868.  He suggests that the 1868 meaning applies against both the state and federal governments, and that the older 1791 meaning applies against no government at all.  As Professor Lash puts it: “My claim here is simply that the people of 1868 believed that citizens of the United States had one Bill of Rights, and they communicated words that made this 1868 understanding of that Bill enforceable against both state and federal governments.”

This is an interesting proposal, and I would not rule it out.  I’m inclined to agree that there is only one Bill of Rights protecting citizens in the same way from both the federal and state governments, and that it applies against the states only via the Privileges or Immunities Clause rather than the Due Process Clause.  But, unlike Professor Lash, I suspect that the meaning of our single Bill of Rights was established in 1791 rather than 1868.  My only caveat is that the Due Process Clause *may* be an exception, both because it is explicitly written into the 14th Amendment, and also because  a particular (non-substantive) meaning was attributed to it by the U.S. Supreme Court in the 1850s.  The rest of this blog post focuses entirely on the other parts of the Bill of Rights rather than the DP Clause.

The two clauses that Professor Lash thinks “respeak” the Bill of Rights are the Privileges or Immunities Clause and the Citizenship Clause.  Both of these clauses are applicable only to citizens, which raises a question: what about “respeaking” the rights of persons who are not citizens, such as the right of tourists in the United States to be free from cruel and unusual punishments inflicted by the federal government? Perhaps one might argue that noncitizens’ Bill of Rights protections were somehow modified and updated by the last two clauses in Section One of the 14th Amendment, in combination with the first two clauses, but that seems convoluted, especially because those last two clauses only apply against the states.

Even if we just focus on citizens alone, and forget about noncitizens, the first clause of the 14th Amendment expressly says only who is constitutionally entitled to citizenship, without expressly speaking about the rights associated with citizenship, much less modifying those citizenship rights.  It is true that many express clauses of the Constitution have implied consequences, but here we are contemplating an implication of another implication: the first alleged implication is that the Citizenship Clause implies a bundle of rights in the language of the 1791 Constitution, and the second alleged implication is that this implied 1791 language is impliedly imbued with 1868 meanings.  I happen to agree with the first implication, but the alleged implication of that implication seems much more tenuous.

Professor Lash points out that the Thirteenth Amendment uses the same language as the older Northwest Ordinance, while meaning something different and more thoroughly abolitionist. However, in that situation the Thirteenth Amendment did not refer back to the Northwest Ordinance and instead actually repeated the older language so that a reader could understand it without even knowing the Northwest Ordinance ever existed.  By contrast, a reader of the first two clauses of the 14th Amendment must refer to some other clauses or sources to figure out what privileges or immunities are at issue.  Moreover, Section 3 of the 14th Amendment clarified the 13th Amendment by denying “any claim for the loss or emancipation of any slave….”  So, precedents like this do not quite support what Professor Lash suggests.

Professor Lash also asserts that, “The original meaning of the Bill of Rights had to be reshaped before these 1791 provisions could be applied against the States.”  That’s doubtful.  The First Amendment did not guarantee that states could pass laws establishing religion, limiting the exercise of religion, or punishing seditious speech; it merely had that effect because amendments like this one proposed by James Madison were rejected: “No State shall violate the equal rights of conscience, or the freedom of the press….”  That amendment by Madison would have existed quite comfortably alongside the First Amendment, without contradiction.

Additionally, I am skeptical that the Bill of Rights as understood in 1867 was always (or usually) of greater benefit to citizens than the original understanding in 1791.  For example, a newspaper hit by numerous libel lawsuits in 1791 and then found innocent in federal court was entitled to attorney’s fees, but by 1868 the “American Rule” required the newspaper to pay its own attorney fees even though it did nothing wrong.  Professor Lash suggests that perhaps “the original Freedom of Speech and Press Clauses communicated nothing more than freedom from prior restraints….”  I don’t believe those clauses were so stingy.  As Madison once said, “The state of the press, therefore, under the common law, cannot, in this point of view, be the standard of its freedom in the United States.”  That’s because “the freedom of speech” referred to the freedom that existed in the thirteen states as of 1790, not at another place or an earlier time.

There is good evidence that Republicans in the 1860s were originalists, and thus that they would have favored the original meaning of the Bill of Rights once they were persuaded of their own errors.  For instance, at the 1860 Republican National Convention, David Wilmot said: “It is our purpose to restore the Constitution to its original meaning; to give to it its true interpretation; to read that instrument as our fathers read it. (Applause.)”.  Wilmot did not say, “It is our purpose to update the Constitution by keeping its words but ejecting their original meaning; to give to it a modern interpretation; to read that instrument as we believe it ought to be read.”

I agree with much of Professor Lash’s Fourteenth Amendment scholarship, and might end up agreeing with this new paper too, but not today, for the reasons explained.  Incidentally, I hope to have a blog post up soon discussing the interpretation given by Professors Barnett and Bernick of the Civil Rights Act of 1866.

11/20/2021

John Bruegger on Scott Boykin on Original-Intent Originalism
Michael Ramsey

John A. Bruegger (Southern New Hampshire University) has posted Original-Intent Originalism, Semantic Instability, and the Impact of Linguistics on American Constitutionalism: A Reply to Professor Boykin (Washburn Law Journal, Vol. 61 (2022, forthcoming)) (20 pages) on SSRN.  Here is the abstract:

In his recent article, "Original-Intent Originalism: A Reformulation and Defense," [60 Washburn L.J. 245 (2021)] Professor Scott Boykin argues that original-intent originalism is the proper interpretive method for deciding constitutional issues. While Boykin argues several points, all of them can be seen as a view of the nature of language that was known but rejected by the Founders when drafting the Constitution. Boykin’s erroneous linguistic argument for constitutional interpretation relies on Hirsch, Wittgenstein, Schleiermacher, and Searle, all of whom wrote their philosophies in the 20th century. Boykin’s argument on interpreting the language of the Constitution is flawed and anachronistic because it applies 20th-century linguistic theory to an 18th-century document. To properly solve the Constitution’s interpretive problem, it is imperative to understand what the Framers understood regarding the nature of language at the time they wrote the Constitution. Did they believe the meaning of words is fixed and static, as Boykin argues, or did they believe that language changes over time? This article will demonstrate that the drafters were heavily influenced by 18th-century political philosophers Thomas Hobbes, John Locke, and Charles de Secondat, Baron of Montesquieu, all of whom wrote on the changing nature of language. Furthermore, the drafters were also influenced by English jurist William Blackstone and his Commentaries on the Laws of England, in which, buried deep in its many pages, Blackstone articulates his view of the changing nature of legal language. These writers were correct in their estimation of the semantic instability of language, whose meaning changes over time and with the circumstances. In other words, the Founders were influenced by this changing nature of language and intentionally drafted the Constitution in imprecise terms to avoid the idea that language is fixed and static. It is through this "original" intent of the fluid meaning of language that the Constitution should be construed.

11/19/2021

Seth Davis, Eric Biber & Elena Kempf: Persisting Sovereignties
Michael Ramsey

Seth Davis (University of California, Berkeley - School of Law), Eric Biber (University of California, Berkeley - School of Law) and Elena Kempf (PhD candidate, University of California, Berkeley - History) have posted Persisting Sovereignties (University of Pennsylvania Law Review, Vol. 170, 2022) (82 pages) on SSRN.  Here is the abstract:

From the first days of the United States, the story of sovereignty has not been one of a simple division between the federal government and the states of the Union. Then, as today, American Indian tribes persisted as self-governing peoples with ongoing and important political relationships with the United States. And then, as today, there was debate about the proper legal characterization of those relationships. The United States Supreme Court confronted that debate in McGirt v. Oklahoma when, in an opinion by Justice Neil Gorsuch, it held that the reservation of the Muscogee (Creek) Nation “persists today.” The Court’s recognition of the persistence of Tribal sovereignty triggered a flurry of critical commentary, including from federal lawmakers who share Justice Gorsuch’s commitment to originalism. But the original story of federal Indian law supports the persistence of tribal sovereignty.

Through its treaty practice, and opinions of its Supreme Court, the United States recognized Indian tribes as political communities whose preconstitutional sovereignty persisted despite their incorporation within U.S. territory. According to the Marshall Court, tribes were “states” and “nations” with whom the United States had formed political relationships. These terms, the Court explained, had a “well-understood meaning” under the law of nations and applied to tribes as they applied “to the other nations of the earth.” This Article explores the original public meaning of those terms as they applied to Indian tribes through the first comprehensive analysis of the international law commentary cited by the Marshall Court as well as historical examples of shared sovereignty that were familiar to lawyers during the early Republic.

In particular, this Article explores two consequences of tribes’ status as “states” and “nations” under international law during the early Republic. First, it provides an originalist foundation for the Indian canon of construction’s rule that tribal sovereignty is preserved unless expressly surrendered. Like states under international law, tribes retained whatever measure of sovereignty they did not expressly surrender by agreement. Accordingly, a court interpreting an Indian treaty must construe ambiguous terms to retain tribal sovereignty. Today, this rule of interpretation is known as the Indian canon of construction and is thought to be peculiar to federal Indian law. To the contrary, however, the Indian canon’s foundations include generally accepted principles of the law of nations at the time of the Founding. Second, this understanding of Indian tribes as “states” implies that the sovereignty of tribes is not divested by their incorporation within the United States and persists despite periods in which federal and state governments have prevented its exercise. This principle, which has important implications for contemporary debates in federal Indian law, not only justifies the Court’s recognition of tribal persistence in McGirt, but also offers a way for thinking about the future story of divided sovereignty in the United States.

11/18/2021

Michael Dorf on Originalists and Fourteenth Amendment Rights [Updated]
Michael Ramsey

At Verdict, Michael Dorf: A Question by Justice Thomas During the Second Amendment Argument Inadvertently Exposes a Weakness of his Originalist Philosophy.  From the introduction: 

Last week the Supreme Court heard oral argument in New York State Rifle & Pistol Ass’n (NYSR&P) v. Bruen, the most important gun rights case to come before the Justices in over a decade. ... Given that most of the Court’s conservative majority at least sometimes describe their job as applying the Constitution’s original public meaning, history played a substantial role in the NYSR&P briefing and oral argument. However, as a question posed by Justice Clarence Thomas early in the argument illustrates, not only do scholars and advocates on opposite sides of the case read the relevant history differently; there is profound uncertainty over what history counts.

...

Justice Thomas asked: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”

And from later on:

Thomas’s question about the potential divergence between 1791 and 1868 is already salient. His McDonald  concurrence provides one answer. There, Justice Thomas expressly stated that in determining the scope of a right incorporated by the Fourteenth Amendment, the Court should look to the public understanding of the words in question—for him “privileges or immunities”—at the time of ratification, 1868. His lengthy McDonald concurrence delves deeply (albeit controversially) into evidence of how Reconstruction-era politicians and their contemporaries thought about that language.

Much of the historical material Justice Thomas discussed in McDonald concerned nineteenth-century views about arms-bearing generally, rather than views specific to the words “privileges or immunities.” Thus, it should be relevant to his colleagues, who think that the Due Process Clause continues to do the work of incorporation. And indeed it was. Justice Samuel Alito’s majority opinion in McDonald covered much of the same historical ground as Justice Thomas covered.

...

Yet there is considerable tension between, on the one hand, the historical approach favored by the Court’s conservative majority in McDonald and (seemingly) NYSR&P, and on the other hand, the Court’s general approach to incorporation of the Bill of Rights.

Most of the cases incorporating provisions of the Bill of Rights against the states arose during the 1960s. During that era, the Justices debated whether the Fourteenth Amendment incorporates Bill of Rights provisions against the states in exactly the way they apply to the federal government—a position sometimes called “jot-for-jot” incorporation—or whether in some instances the incorporated right might have different implications for the states.

We have already encountered one reason why a right might be different as applied to the federal government and the states: perhaps by the time the People ratified the Fourteenth Amendment in 1868, their understanding of the right had changed from the views that prevailed when the original Bill of Rights was ratified in 1791. Federalism provides another explanation: within broad bounds, each of the fifty states might be permitted some leeway in light of distinctive traditions and variations in their legal systems.

Despite the appeal of history and federalism, the Court eventually settled on jot-for-jot incorporation. Indeed, just last year, in Ramos v. Louisiana, Justice Neil Gorsuch, writing for the majority, decisively “rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights” (citations and internal quotation marks omitted). In Ramos, the Court held that the Fourteenth Amendment’s incorporation of the Sixth Amendment’s right to jury trial in criminal cases precludes conviction based on a non-unanimous jury decision in state court, just as in federal court.

I agree this is a serious issue that many originalist judges (and originalist scholars) haven't adequately grappled with.  (I noted Justice Scalia's ambivalent views and lack of attention to the issue here, Part II.B).  I don't have a firm view, but I'm not a Fourteenth Amendment scholar. Professor Dorf goes on to say lack of attention to this issue undermines the originalist project (which seems somewhat unfair to Justice Thomas, since the essay starts off by showing how the Justice is interested in it).  I wouldn't go that far, but it seems that the Court needs to do more than it's done so far.

Originalist scholars have noted the potential divergence between the content of rights secured directly by the Bill of Rights and rights incorporated against the states by the Fourteenth Amendment -- for example, Michael Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May.  I don't think there is a consensus among originalist scholars as to how it should work.

UPDATE:  Also this important paper: Kurt Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation.  Here is the abstract from SSRN:

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. For example, do we have two Bills of Rights, one applicable against the federal government with one meaning, and a second applicable against the state governments with a different meaning? If historical understanding is to guide the interpretation of the incorporated Bill of Rights, is that understanding rooted in 1791, the year the people ratified the original Bill of Rights? Or is it rooted in 1868, when a new people added the Fourteenth Amendment to the Constitution? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward into the 1791 amendments by way of the doctrine of “reverse incorporation?”

This essay proposes a new theory of incorporation (and reverse incorporation) that resolves these difficulties, one based on the text and historical understanding of the Fourteenth Amendment. When the people of 1868 ratified the opening sentence of the Fourteenth Amendment, their sovereign voice brought into constitutional existence “citizens of the United States” who, by definition, enjoyed certain “privileges or immunities.” The second sentence makes these privileges and immunities of national citizenship applicable against the states. If the people of 1868 understood the term “privileges or immunities” to include the rights enumerated in the 1791 amendments, then the two opening sentences of Section One of the Fourteenth Amendment effectively “re-speak” the Bill of Rights as 1868 privileges and immunities. Re-spoken by a new people in a new context, these 1791 words communicated a new understanding of the Bill of Rights — that held by the people of 1868 and which equally binds both federal and state governments.

11/17/2021

Adam Rowe Reviews Noah Feldman's "The Broken Constitution"
David Weisberg

Further to the posts (herehere, and here) relating to Prof. Noah Feldman’s new book, “The Broken Constitution: Lincoln, Slavery, and the Refounding of America,” The Wall Street Journal (Friday, Nov. 12) published a book review by historian Adam Rowe.  It praises as “masterly” some of the book’s analysis of three constitutional questions—making war on the Confederacy, suspending habeas corpus, emancipating slaves—that, Feldman argues, Lincoln resolved in ways that “broke” the Constitution.  But, with regard to Feldman's understanding of Lincoln's views concerning slavery, Rowe says this:

Until the Emancipation Proclamation,” [Feldman] writes, “Lincoln had never been able to present his political goals in moral terms.” To call this judgment wrong is inadequate. It is too weird to be merely wrong. The “real issue,” Lincoln had declared in his debates with Stephen Douglas in 1858 over slavery’s expansion, “is the eternal struggle between these two principles—right and wrong—throughout the world. They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle.

Personally, I think "weird" is just about right.

Two Weeks to Dobbs
Andrew Hyman

This is a reminder that a hugely significant case regarding the Fourteenth Amendment and abortion will be argued at the U.S. Supreme Court on December 1.  The case is, of course, Dobbs v. Jackson Women’s Health Organization.

As usual, SCOTUSblog has the briefs, some of which have a strong originalist orientation. Over at the Volokh Conspiracy blog, Professor Orin Kerr discusses why “there hasn't been much writing about Dobbs” in academic/blogging circles.  He observes that people have already been writing about this subject for decades, so “It's not clear that there's anything new to say.”  But he adds that this is an incredibly important case, and one to closely watch.
 
Besides what Professor Kerr mentioned, the great magnitude of this case may also leave many people disinclined to write about it because of being overawed, or perhaps waiting for the oral arguments to see what might be said at that point; another possible factor is the learned helplessness that has come with the Supreme Court having long ago removed this issue from the democratic process.  In any event, I wrote a blog post about this case before cert was granted.  Can’t think of anything to add onto that, right now.
 
Incidentally, I just got the new book by Professors Randy Barnett and Evan Bernick in the mail from Amazon: The Original Meaning of the Fourteenth Amendment.  If you really want to study this book carefully, you might need both the book to scribble in, plus the Kindle version for searching the whole book (including footnotes).  My initial impression is that we should probably try to seek greater consensus about what the Civil Rights Act of 1866 means before we can expect to get broader agreement about what the 14th Amendment means.
 
In other news, Professor Kurt Lash has proposed a constitutional amendment regarding parents’ rights.
 
MICHAEL RAMSEY adds:  Also at Volokh Conspiracy, Josh Blackman and Stephen Sachs discuss the significance of Dobbs for the originalist movement: 
 
 
 
 

11/16/2021

David Froomkin: Nondelegation Step Zero
Michael Ramsey

David Froomkin (JD/PhD Candidate, Yale University) has posted Nondelegation Step Zero (38 pages) on SSRN.  Here is the abstract:

The nondelegation doctrine, as a matter of both precedent and logic, properly distinguishes between delegations to administrative agencies and delegations to the President, imposing more vigorous scrutiny on the latter. The nondelegation doctrine vindicates the Article I Vesting Clause by preventing Congress from being divested of the legislative power. Its purpose is to reinforce Congress’s legislative supremacy in the realm of ordinary law, not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies. At the same time, the nondelegation doctrine has a valuable role to play in constraining the delegation of broad powers to the President directly, a constraint that encourages delegation of regulatory authority to administrative agencies. The diffuse structure of the modern administrative state is a testament to the great success of the nondelegation doctrine, not evidence of its underenforcement. Indeed, the contemporary push to reinvent the nondelegation doctrine in an indiscriminate way would turn it into something closer to its opposite.

It's an interesting idea, though I'm not sure there's historical support from anywhere near the founding era. (Also there are very broad delegations to the President directly in the modern era, especially in the foreign affairs field.)  And, I'm doubtful that the nondelegation doctrine's purpose is "not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies."  I would say (and I think more important people than I, such as Justice Gorsuch would say) that part of the purpose of the nondelegation doctrine is to assure that laws are made by the elected representatives of the people, not by unelected bureaucrats.  Still, it's worth thinking about whether it makes a difference if the delegation is to the President directly rather than to an agency.

11/15/2021

Curtis Bradley: Reassessing the Legislative Veto
Michael Ramsey

Curtis Bradley (University of Chicago Law School) has posted Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds (forthcoming, Journal of Legal Analysis) (53 pages) on SSRN.  Here is the abstract:

There have long been complaints about the growth of presidential power. These complaints intensified during the Trump administration, and there are now calls for a host of separation-of-powers reforms designed to restore congressional authority. As some advocates for reform recognize, many of the controversial actions that presidents take are based on statutory authorization. For example, the Trump administration’s “travel ban,” its re-imposition of sanctions against Iran, and its shifting of funds to be used to construct the southern border wall were all based, at least principally, on statutory delegations rather than on claims of independent presidential authority. A chief reason that the President is insufficiently constrained when exercising such statutorily-delegated power, it is claimed, is the Supreme Court’s disallowance of legislative vetoes in its decision in INS v. Chadha, a claim that intensified during the Trump administration. This Article challenges this account, arguing that the availability of the legislative veto was less important before Chadha to congressional-executive relations than legal scholars commonly assume, and that, to the extent that the legislative veto was (or would have become) important for checking some exercises of statutorily-delegated authority, Congress has developed a host of effective workarounds in the years since Chadha. It illustrates this claim with case studies concerning war powers, arms sales, and emergency declarations. The Article also argues that the functional case for allowing legislative vetoes is more debatable than many critics of Chadha have acknowledged.

This is an interesting question of institutional design.  I think Chadha was correctly decided as a matter of original meaning, but I'm inclined to agree with critics who say it is bad policy (especially in given a large, complex administrative federal administrative state).  The President and the agencies have too much unchecked power to implement policies pursuant to claimed statutory delegations (whether those delegations were intended or not).  One could use a revived nondelegation doctrine to redress some of that problem, if the Supreme Court could find the votes to do it.  But a structural way to provide a stronger check (if Chadha didn't foreclose it) would be for Congress to have a way to disapprove executive/agency action under delegated power that was not subject to a presidential veto.  But maybe not, as this article argues.

11/14/2021

Federalist Society National Lawyers Convention Video
Michael Ramsey

Video of the Federalist Society's 2021 National Lawyers Convention, held November 11-13, is available at the Federalist Society website.  This year's theme was Public and Private Power: Preserving Freedom or Preventing Harm?  Videos are are free and don't require any registration. 

This year's theme did not prompt as much discussion of originalism as past years.  But of course this panel is notable:

Originalism: Perspectives from the Bench

Many would agree that originalism is now a standard when it comes to judicial philosophy. On this panel, a variety of judges will discuss how they 'do' originalism while sitting on a case. Furthermore, they will provide their views on whether and how advocates can best brief and argue cases along originalist lines.

Featuring:

Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit

Hon. Kevin Newsom, U.S. Court of Appeals, Eleventh Circuit

Hon. Andrew Oldham, U.S. Court of Appeals, Fifth Circuit

Hon. Neomi Rao, U.S. Court of Appeals, D.C. Circuit

Moderator: Hon. John Nalbandian, U.S. Court of Appeals, Sixth Circuit

For the Robert H. Bork Memorial Lecture, Judge Laurence H. Silberman (D.C. Circuit) delivered remarks on "The Job of Attorney General—A Historical Perspective."

This panel had some originalist orientation:

The Separation of Powers and Political Polarization

Political polarization is a great problem of our time. This panel would consider the separation of powers deformation that is a factor in polarization. Executive branch administrative decisions tend to be more extreme than legislative solutions, particularly when, as is usually the case, the houses of Congress and the President are divided among the parties. Thus, Congress’s delegation of policy decisions to the executive branch results in extreme regulations that can shift radically between administrations, creating government by whiplash. The panel would consider whether institutional restorations, like the curbing of delegation and Chevron, might help in restoring a constitution of compromise.

Featuring:

Prof. Neal E. Devins, Sandra Day O’Connor Professor of Law & Professor of Government, William & Mary Law School

Prof. Victoria Nourse, Ralph V. Whitworth Professor in Law, Georgetown University Law Center

Hon. Ajit Pai, Nonresident Fellow, American Enterprise Institute; Former Chairman, Federal Communications Commission

Prof. Michael Rappaport, Hugh and Hazel Darling Foundation Professor of Law & Director for the Center for the Study of Constitutional Originalism, University of San Diego School of Law

Moderator: Hon. William H. Pryor Jr., Chief Judge, U.S. Court of Appeals, Eleventh Circuit

Also this one:

Religious Liberty after Fulton v. City of Philadelphia

Fulton v. City of Philadelphia was a victory for religious liberty, but it is unclear how broad its implications will be for other cases and what the opinions in Fulton portend for the future of Employment Division v. Smith. The Court’s majority opinion relied on provisions of Philadelphia’s foster care agency contracting process, but the majority also potentially reworked Smith’s understanding of when government regulation is "generally applicable." Meanwhile, several justices indicated a willingness to revisit Smith altogether, though what a post-Smith free exercise jurisprudence would look like remains unclear. This panel will explore these and other questions raised by Fulton and the future of religious free exercise.

Featuring:

Prof. Akhil Reed Amar, Sterling Professor of Law, Yale Law School

Prof. Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law

Prof. William Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law

Ms. Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty

Moderator: Hon. Lawrence VanDyke, U.S. Court of Appeals, Ninth Circuit

And this one had a familiar name, although very little originalism:

IP Law and Culture

A perennial debate about intellectual property and culture is how intellectual property laws enhance or restrict the ability of people to contribute to and build a culture. The Supreme Court has described copyright as "the engine of free expression," but criticisms frequently arise when intellectual property law prevents people from using the work of others to express themselves. In the trademark context, recent Supreme Court decisions struck down the prohibition of federal trademark registration for immoral, scandalous, and disparaging marks as a violation of First Amendment speech rights. Some argue that the Court’s reasoning should further be applied to strike down most federal Trademark Dilution claims, which allow brand owners to sue those who use their trademarks in ways that blur or tarnish the trademark. The debate regarding copyright fair use also continues to rage on, pitting the rights of original creators against the ability of appropriation artists and others to use those original works.

This panel will consider these longstanding controversies in light of recent developments.

Featuring:

Prof. Lisa Ramsey, Professor of Law & Founding Member, Center for Intellectual Property Law and Markets, University of San Diego School of Law

Prof. Robert Spoo, Associate Dean for Faculty Development & Chapman Distinguished Professor of Law, University of Tulsa College of Law

Hon. Karyn Temple, Senior Executive Vice President and Global General Counsel, Motion Picture Association; Former Register of Copyrights and Director, U.S. Copyright Office.

Prof. Sandra Aistars, Senior Fellow for Copyright Research and Policy, Senior Scholar at the Center for Intellectual Property x Innovation Policy, Antonin Scalia Law School, George Mason University

Moderator: Hon. Ryan T. Holte, U.S. Court of Federal Claims 

Related: At Volokh Conspiracy, Josh Blackman: #FedSoc2021 and Dobbs - Synthesizing three days of debate and discussion. From the introduction:

At this conference, the most contentious topic was Dobbs. And there is a wide range of thoughts on this issue. Here, I will try to synthesize three days of debate and discussion on Dobbs. At some points, my own views will seep in but I will try to keep the big picture in mind. From my perspective, there are four general camps of views. These camps are not distinct, and often overlap. Indeed, most people hold conflicted views...

11/13/2021

Saul Cornell on Originalism and the Concealed Carry Case [Updated with Comment from Professor Cornell]
Michael Ramsey

At Slate, Saul Cornell (Fordham - History): The Supreme Court’s Latest Gun Case Made a Mockery of Originalism.  From the introduction:

Last week, the Supreme Court heard oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen, the case that will decide the future of concealed carry in the United States. Following those arguments, it has become crystal clear that the conservative wing of the Supreme Court is once again determined to apply originalism in a selective fashion to achieve its preferred political outcomes. The court appears to be perfectly happy to trot out originalist rhetoric when it serves its interests and abandon it entirely when the historical record does not support its political goals.

Over the past decade, multiple scholars, writing on both sides of the Atlantic, have uncovered a voluminous historical record of gun regulation largely invisible to the court that decided the landmark decision on gun rights, District of Columbia v. Heller, because the sources were not then easily available to legal researchers. That historical record not only demonstrates that arms have been closely regulated when carried in dense and populous areas for more than 700 years, and it showed that New York’s own law was part of a constitutional transformation in gun regulation during the era of the 14th Amendment that swept across the nation. Having cast their lot with history in Heller, the court’s purported originalists now wish to cast aside that history to further the cause of gun rights. The court’s originalists are on the verge of embracing a radical living constitutional vision of the Second Amendment that would have made the activist judges of the Warren Court era blanch.

...

Given that Heller tied the Second Amendment to individual self-defense, one would think that a proper understanding of that complex history ought to have informed the court’s oral arguments, but sadly it did not. Under English common law, the use of deadly force was permitted in the home, but strictly limited outside of the home. So, from its very inception, the right of self-defense was related to geography and social space in a unique way. Outside of the home, one had a duty to retreat, not stand your ground under common law. In short, the scope of the right was fundamentally shaped by where the right was exercised. The strength of the right diminished as one moved farther away from the home and into more populous areas. Thus, the Statute of Northampton (1328), a law that was extensively discussed in the Bruen oral argument, singled out sensitive places such as courts and populous areas such as fairs and markets as locations that one could not travel armed unless one was acting to preserve the peace. The conservative justices seemed to confuse the two concepts, subsuming populous areas into sensitive ones. A federal courthouse is a sensitive place; Grand Central Station is a populous one.

And from the conclusion:

New York’s permit law was modeled on laws enacted during Reconstruction. Under any serious originalist analysis, this fact alone would render them presumptively lawful under the Heller/McDonald history, text, and tradition mode of analysis. Dozens of similar laws were passed in towns and cities across America. At the time they were passed, these laws were all understood to be consistent with the Second Amendment. Moreover, recent historical research has demonstrated that these laws were vigorously enforced and applied in a racially neutral manner until the era of Jim Crow, when Southern racists used them to dismantle Reconstruction, often at the barrel of a gun. The notion that these laws are now suddenly unconstitutional because today’s justices find that they are hard to reconcile with their modern ideas about rights makes a mockery of originalism; it does not vindicate it. This is little more than right-wing living constitutionalism for guns.

The oral argument in Bruen demonstrates that the conservative wing of the court is not sincerely interested in history, text, and tradition if the evidence cuts against them. What they are intent on doing is ... recasting the scope of the Second Amendment so that it resembles other modern rights transformed by the Warren Court and left-leaning champions of a living constitution. In his opening remarks, Paul Clement [counsel for the claimants] correctly noted that the current scope of Second Amendment rights does not match the robustness of modern First Amendment rights or criminal procedure rights. But the operative word here is modern. The original understandings of the First Amendment and criminal procedure rights, both in the founding era and the period of Reconstruction, were anemic by contemporary standards. There is nothing inherently wrong with [the Court] supersizing the Second Amendment. The left got its supersized rights in the 1960s, so now it is the right’s turn. The one thing such an approach is not consistent with is the right’s claim that originalism is principled, neutral, and intellectually rigorous.

I agree that the fact that some rights have expanded beyond their original scope doesn't mean originalists should support expanding Second Amendment rights in the same way.  On the specific question of Bruen, the "sensitive places" argument seems to be beside the point.  I would want to know whether there is a history of licensing  (or comprehensive bans) for concealed carry.

UPDATE:  Saul Cornell comments:

The evidence strongly supports New York. Between 1812-1876 over 50 statutes were passed banning concealed carry in America.  By the time New York's discretionary permit law passed, dozens of localities had adopted this model and multiple constitutional commentators acknowledged that it was consistent with the Second Amendment. In my U.C. Davis Law Review article, I calculate that almost half of California was living under a discretionary permit scheme by the dawn of the 20th century.  So if the Court strikes down the New York law and claims that ruling is consistent with Heller's history, text, and tradition approach, it will seriously weaken originalism, at least applied by the Supreme Court. Obviously, academics can not be held liable for the sins of judges. But the claim that originalism is a neutral methodology and that judges can apply it fairly and rigorously will be harmed.   It actually puts me in a bind. If the originalist judges uphold the law it will force me to recant part of my critique of originalism. If they strike the law down, I will be vindicated, but a system that has resulted in New York having much lower gun violence rates than Texas or other permissive carry states would be wiped from the books.

11/12/2021

George Mader: 'The Laws' of the Take Care Clause Do Not Include the Constitution
Michael Ramsey

George Mader (William H. Bowen School of Law -- University of Arkansas at Little Rock) has posted Taking Care With Text: 'The Laws' of the Take Care Clause Do Not Include the Constitution, and There Is No Autonomous Presidential Power of Constitutional Interpretation (Denver Law Review, forthcoming) (44 pages) on SSRN.  Here is the abstract:

Departmentalism posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the executive branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause lists the Constitution as a portion of “the supreme Law of the Land.” Therefore, the President is to execute the Constitution. Or so the common argument goes. The presidential oath to “execute the office of President” and “to the best of [the President’s] Ability, preserve, protect, and defend the Constitution” is often enlisted in support of the argument, or even offered as a separate basis for the President’s power of autonomous constitutional interpretation.

This article offers a textual analysis of not only the Take Care Clause and the Supremacy Clause, but also the presidential oath and other clauses relevant to the textual argument for an autonomous presidential power of constitutional interpretation. The textual analysis has the following results. First, “the Laws” in the Take Care Clause do not include the Constitution, contrary to widely held assumption. Second, the presidential oath, standing alone, cannot support a textual argument for an autonomous presidential power of constitutional interpretation. Those two results collapse the textual argument for departmentalism. Third, the constitutional text as a whole, and most prominently the nearly identical language used in Article VI to define “the supreme Law of the Land” and in Article III to express the extent of judicial power, strongly indicates judicial interpretations are supreme over conflicting executive interpretations.

As often seems the case when the text of the Constitution is analyzed carefully, there are some rewarding secondary insights gained along the way. In this instance, working through the intratextual links among various clauses sheds light on the rarely discussed congressional power “[t]o provide for calling forth the Militia to execute the Laws of the Union.” There is textual evidence “the Laws” of the Take Care Clause and “the Laws of the Union” may mean the same thing: federal statutes and treaties, but not the Constitution.

11/11/2021

New Book: "The Original Meaning of the Fourteenth Amendment" by Randy Barnett and Evan Bernick
Michael Ramsey

Recently published, by Randy Barnett (Georgetown) and Evan Bernick (Northern Illinois): The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Belknap Press 2021).  Here is the book description from Amazon:

A renowned constitutional scholar and a rising star provide a balanced and definitive analysis of the origins and original meaning of the Fourteenth Amendment.

Adopted in 1868, the Fourteenth Amendment profoundly changed the Constitution, giving the federal judiciary and Congress new powers to protect the fundamental rights of individuals from being violated by the states. Yet, according to Randy Barnett and Evan Bernick, the Supreme Court has long misunderstood or ignored the original meaning of the amendment’s key clauses, covering the privileges and immunities of citizenship [ed.: it's "or" not "and", description writers!!], due process of law, and the equal protection of the laws.

Barnett and Bernick contend that the Fourteenth Amendment was the culmination of decades of debates about the meaning of the antebellum Constitution. Antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence, and the common law. They also utilized what is today called public-meaning originalism. Although their arguments lost in the courts, the Republican Party was formed to advance an antislavery political agenda, eventually bringing about abolition. Then, when abolition alone proved insufficient to thwart Southern repression and provide for civil equality, the Fourteenth Amendment was enacted. It went beyond abolition to enshrine in the Constitution the concept of Republican citizenship and granted Congress power to protect fundamental rights and ensure equality before the law. Finally, Congress used its powers to pass Reconstruction-era civil rights laws that tell us much about the original scope of the amendment.

With evenhanded attention to primary sources, The Original Meaning of the Fourteenth Amendment shows how the principles of the Declaration eventually came to modify the Constitution and proposes workable doctrines for implementing the key provisions of Section 1 of the Fourteenth Amendment.

This is a very big deal, perhaps the premier originalist publishing event of 2021.

11/10/2021

Jeffrey Goldsworthy: The Meaning and Interpretation of Statutes in Anglo-American Legal Systems
Michael Ramsey

Jeffrey Denys Goldsworthy (Monash University - Faculty of Law) has posted The Meaning and Interpretation of Statutes in Anglo-American Legal Systems (Tomasz Gizbert-Studnicki, Francesca Poggi, Izabela Skoczeń, eds, "Interpretivism and the Limits of Law" (Edward Elgar, 2022)) (22 pages) on SSRN.  Here is the abstract:

This book chapter provides an overview of the meaning and interpretation of statutes in Anglo-American legal systems. It first explains how statute law is based on the constitutional doctrine of legislative supremacy, in the UK, the US and elsewhere. It then shows that statutory meaning is largely, but not entirely, constituted by the meaning that the legislature apparently intended to communicate, given readily available evidence of its intentions. The interpretation of statutes is first and foremost devoted to ascertaining that meaning. But judges also exercise creative powers, guided by distinctively legal, and moral/political, considerations, (a) to supplement that meaning when it is insufficiently determinate to resolve the legal dispute at hand, and (b) in limited circumstances, to correct or “rectify” that meaning in order to fulfil the legislature’s likely purposes or presumed standing commitments. In other words, fidelity to legislative supremacy sometimes justifies departures from the precise communicative contents of statutes. The chapter argues that the canons or presumptions of interpretation are best explained by these different aspects of the interpretive process.

11/09/2021

Papers and Commentators for the Thirteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference
Michael Ramsey

The University of San Diego's Originalism Center has the following announcement:

We are pleased to present the complete list of papers and commentators for the Thirteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 18-19, 2022 at the University of San Diego Law School.

William Baude (Chicago), Severability First Principles

Commentator: Tara Leigh Grove (Alabama)

Anthony Bellia Jr. (Notre Dame) & Bradford Clark (George Washington), The Original Law of Constitutional Interpretation

           Commentator: Ingrid Brunk Wuerth (Vanderbilt)

Evan Bernick (Northern Illinois) & Christopher Green (Mississippi), There Is Something That The Constitution Just Is

           Commentator: Bernadette Meyler (Stanford) 

Jud Campbell (Richmond), Rights of American Citizenship

           Commentator: Ryan Williams (Boston College)

Michael Paulsen (St. Thomas), The Power to Declare Peace 

            Commentator: Michael McConnell (Stanford)

Adam Samaha (NYU), Construction Zone Destruction 

            Commentator: John McGinnis (Northwestern)

Ilan Wurman (Arizona State), Reconstructing Reconstruction-Era Rights 

            Commentator: John Harrison (Virginia)

The selection of the papers was difficult, as there were many worthy submissions.  In the end, the selections were made based on both individual merit as well as the need to have a balanced group of papers on originalism.

In addition to the authors and commentators, the members of the Originalism Center should also be in attendance.  The members include: Larry Alexander, Laurence Claus, Donald Dripps, Michael Ramsey, Michael Rappaport, and Steven Smith.

We are excited to have such a distinguished lineup of authors and commentators, and again we invite all scholars who are interested in originalism to attend and participate in the conference by reading the papers and joining the discussion. The Center would be happy to pay for the principal meals for those attending the whole conference but not giving a paper or serving as a commentator.

This year we are planning the conference as an in-person conference.  We will let people know if circumstances require a change in the plans. 

11/08/2021

Sean Wilentz on Noah Feldman on Lincoln and the Constitution
Michael Ramsey

In the New York Times, Sean Wilentz reviews (harshly) The Broken Constitution: Lincoln, Slavery, and the Refounding of America by Noah Feldman:  Was the Constitution Pro-Slavery? Jefferson Davis Thought So.  Lincoln Did Not.

Via Josh Blackman at Volokh Conspiracy, who comments

In the New York TimesProfessor Sean Wilentz (Princeton) reviews Feldman's new Lincoln book, titled "The Broken Constitution." Wilentz confirmed my suspicions about the book: in order to support the narrative that Lincoln broke the Constitution, Feldman would have to adopt the pro-Confederacy understanding of the Constitution. You should read the entire review, but this passage sums things up well:

The framers, [Jefferson] Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring "turgid waters through the broken Constitution." Davis's pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis's nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was "the essence of anarchy." On both points, though, Feldman contends that Davis was right and Lincoln was wrong. Moreover, Feldman argues, despite Lincoln's professed fidelity to the framers' work, he was the one who finally broke the Constitution during the Civil War by turning the presidency into a quasi dictatorship, much as his Confederate and Copperhead enemies alleged he did. Only then, Feldman concludes, paradoxically, could America redeem its claims to nobility by purging the original sin of slavery, refounding itself by embracing what he calls a new, expansive "moral Constitution."Feldman's reliance on Jefferson Davis to frame a book on Abraham Lincoln thus makes perfect sense: Aside from the slaveholders' insistence on the ethical legitimacy of slavery, Feldman's constitutional analysis consistently backs their arguments over Lincoln's. Less than perfect, unfortunately, are the renderings of American history he offers to support his surprising thesis.

11/07/2021

Michael Dorf: Gadamer, Gedicks, and Original Public Meaning
Michael Ramsey

Michael C. Dorf (Cornell Law School) has posted If It Ain’t Broke, Don’t Fixate on It: Gadamer, Gedicks, and Original Public Meaning (Florida Law Review Forum, Vol. 72, No. 66, 2021) (10 pages) on SSRN.  Here is the abstract:

In The “Fixation Thesis” and Other Falsehoods, Professor Frederick Mark Gedicks argues that public meaning originalists are mistaken in their claim that the Constitution today means just what it meant when it was adopted. Unlike living constitutionalists who say that the document’s meaning has changed to keep up with the times, Gedicks denies that we have unmediated access to an original public meaning relative to which we could even identify or measure departure. Leaning on a theory of hermeneutics developed by philosopher Hans-Georg Gadamer, Gedicks takes aim at the fixation thesis—Professor Lawrence Solum’s term for the proposition that the meaning of any constitutional text was fixed at the time of its adoption.

At Legal Theory Blog, Larry Solum adds: 

For my reflections on an argument very similar to that made by Gedicks, see Originalism, Hermeneutics, and the Fixation Thesis in The Nature of Legal Interpretation, edited by Brian Slocum.

11/06/2021

Jean Galbraith: The Runaway Presidential Power over Diplomacy
Michael Ramsey

Jean Galbraith (University of Pennsylvania Carey Law School) has posted The Runaway Presidential Power over Diplomacy (Virginia Law Review, forthcoming 2022) (64 pages) on SSRN.  Here is the abstract:

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. And these are just a few of many examples from recent years. The President’s assertedly exclusive powers over diplomacy have become a powerful yet rarely critiqued tool for withholding information from Congress and for rebuffing congressional supervision over the content and agents of international engagement.

This Article interrogates the constitutional concept of “diplomacy” – a word that, for all the emphasis the executive branch now puts upon it, was barely an English word at the time of the Framing and was not used during the constitution’s drafting and ratification. Both structural reasoning and historical practice suggest that exclusive presidential powers over diplomacy should have a narrower ambit than executive branch lawyers currently claim. The Article excavates several forgotten limits on these powers. One is the distinction between policy and negotiation. The executive branch asserts exclusive power over both, but Congress has strong counterclaims to a constitutional power to establish policy objectives and to control outputs, such as votes in international organization. Another limit relates to domestic-facing administrative agencies, which increasingly engage in regulatory coordination abroad. Both Congress’s traditional role in supervising agencies and the substance of these agencies’ work suggest that their international engagement should not necessarily partake of whatever exclusive powers the President holds over diplomacy and instead should be more subject to congressional control. The Article closes by proposing a distribution of power over international engagement that provides more control to Congress and by identifying institutional strategies that Congress could deploy to achieve this distribution.

Though I generally endorse a strong version of the President's diplomatic power as part of the Executive Power over Foreign Affairs, this article points to important limitations that trace back to the Constitution's original meaning.  In particular, the President's exercise of diplomatic power is concurrent with, not exclusive of, Congress' exercise of its own enumerated powers.

11/05/2021

Prof. Noah Feldman on Lincoln’s First Inaugural Address
David Weisberg

Prof. Ramsey has written a post concerning Noah Feldman’s new book, “The Broken Constitution,” and Feldman’s derivative NYTimes op-ed, “This is the Story of How Lincoln Broke the U.S. Constitution.”  The post includes comments from Prof. Josh Blackman and Prof. Ramsey himself, all of which are somewhat skeptical about Prof. Feldman’s allegation that, in his first 18 months as president, “Lincoln violated the Constitution as it was then broadly understood three separate times.”

I’m not going to join that debate, except to say that I share the skepticism expressed by Profs. Blackman and Ramsey.  I’m writing instead to correct what is, to my mind, an astounding misconception advanced by Prof. Feldman concerning Lincoln’s first inaugural address.  In his op-ed, Prof. Feldman writes:

[T]he month before [the Civil War began], in his first Inaugural Address, Lincoln promised to preserve slavery as a constitutionally mandated permanent reality.

“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists,” he said, vowing never to defy what was “plainly written” in the Constitution. “I believe I have no lawful right to do so, and I have no inclination to do so.”

Prof. Feldman accurately quotes part of Lincoln’s first inaugural address, but in construing that part, or any part, of the address as Lincoln’s promise “to preserve slavery as a constitutionally mandated permanent reality,” he is entirely mistaken on two counts.

First, no one ever believed that slavery was “mandated” by the U.S. Constitution.  Lincoln never said any such thing in an inaugural address or anywhere else.  Moreover, in the interval between the Constitution’s adoption and 1860, numerous States (including Lincoln’s own Illinois) had modified their constitutions, which had formerly permitted slavery, to prohibit it.  No one seriously contended that the U.S. Constitution barred any State from prohibiting slavery within its own borders.  It should be obvious that there is a difference between the Constitution permitting or allowing States to make slavery lawful and the Constitution mandating or requiring States to make slavery lawful.   

Lincoln certainly did argue that, if the logic of the Dred Scott decision were taken to its limit, the States would be prohibited by the U.S. Constitution from barring slavery within their respective borders—but this was a reductio ad absurdum  argument.  That is, it was understood to demonstrate the falsity of the Dred Scott premises; it most certainly did not express any belief on Lincoln’s part that the U.S. Constitution mandated slavery.

Secondly, whatever views others may have held, it is certainly not true that Lincoln conceived of slavery as a “permanent reality.”  The words from Lincoln’s first inaugural address quoted by Prof. Feldman do not say anything about slavery being “permanent,” nor does any other part of that address.  But on numerous occasions prior to the first inaugural, Lincoln made his view perfectly clear.  For example, on March 1, 1859 he said this in Chicago:

I do not wish to be misunderstood upon this subject of slavery in this country.  I suppose it may long exist, and perhaps the best way for it to come to an end peaceably is for it to exist for a length of time.  But I say that the spread and strengthening and perpetuation of it is an entirely different proposition.  There we should in every way resist it as a wrong, treating it as a wrong, with the fixed idea that it must and will come to an end.

This directly contradicts the notion that Lincoln ever thought that slavery should or would be permanent.  Lincoln’s contributions to the Lincoln/Douglas debates also are filled with exhortations such as this:

All I have asked or desired anywhere is that [slavery] should be placed back again upon the basis that the fathers of our government originally placed it upon.  I have no doubt that it would become extinct, for all time to come, if we but re-adopted the policy of the fathers by restricting it to the limits it has already covered—restricting it from the new Territories. 

(Third Debate, Sept. 15, 1858, Lincoln’s Reply, emphasis in original.)

In sum, Prof. Feldman is entirely incorrect in asserting that Lincoln, in his first inaugural address or in any other speech or writing, “promised to preserve slavery as a constitutionally mandated permanent reality.”       

11/04/2021

John McGinnis on Originalism and the Supreme Court's 2021-2022 Term
Michael Ramsey

At Law & Liberty, John McGinnis: Originalism Tested.  From the introduction: 

This term at the Supreme Court promises to be the most substantial test of originalism since its reemergence as a constitutional jurisprudence in the latter part of the last century. For the first time, originalists form a majority on the Court. Justices Thomas, Gorsuch, and Barrett are long-time originalists. Justice Alito has recently declared himself an originalist, and Justice Kavanaugh has strong originalist tendencies.

Yet as the originalist band of justices has grown, so too have the attacks on originalism. During Barrett’s confirmation, Senator Markey labeled it “racist, sexist, and homophobic.” And this slur is not idle chatter. Many senators and commentators advocate court packing that would deprive originalists of a working majority. And, likely in reaction to such political assaults, polls show that the Court has lost support, although it remains more popular than the other branches of government.

The strength of originalism inside the Court and the marshaling of opposition outside its walls would make for drama at any time. But this term features at least three controversial cases—all to be argued before the end of 2021—where originalism should be decisive. The term’s central question is thus whether the Court majority can interpret the law as written even as others press for the law’s distortion.

Professor McGinnis' "three controversial cases ... where originalism should be decisive" are New York Rifle & Pistol, Dobbs, and the more-obscure Carson v. Makin.  On the first: 

The New York law [in New York Rifle & Pistol] prohibits the vast majority from bearing arms, permitting the activity as a privilege for a select few. If it were to be upheld, the Second Amendment would become a right unlike any other in the Constitution—one that can be restricted to those chosen by the government.

...

Thus, the hard question in this case is not whether the statute should be upheld but whether an originalist court will have the courage to strike it down. Heller and McDonald did not take as much courage, because only a handful of jurisdictions prohibited the holding of guns inside the home and because such a restriction was nationally so unpopular. More jurisdictions heavily regulate carrying outside the home. Previously, the Court has symbolically vindicated the original meaning of the Constitution, as when it invalidated the Gun-Free Schools Act as beyond Congress’s power under the Commerce Clause, only to pull back when it came to more consequential statutes, like drug laws, in Gonzales v. Raich. But with many more thoroughgoing originalists on the Court today, I remain optimistic that the Second Amendment will not be relegated to mere symbolism.

And on Carson:

Maine gave tuition assistance to parents in areas without public schools so that their children can attend private schools. But Maine also restricted the use of this assistance to attending schools that are not “sectarian.” Thus, students can attend secular private schools or even schools associated with a religious institution, but not schools where, in the judgment of the state officials, the instruction is too religiously oriented.

Previously, the Supreme Court has held that a state cannot discriminate in providing funds to parents based on the religious “status” of schools. The question here is whether the states can discriminate based on the religious content of the education they deliver. Like the Second Amendment, the meaning of the words of the Constitution is telling. They show that the state cannot so discriminate. 

I agree that these are the Court's main originalism-implicating cases so far this term -- it is an oddly light term for originalism despite the enormous originalist prominence of Dobbs and New York Rifle.

11/03/2021

New Book: "The Broken Constitution" by Noah Feldman (with Comments from Josh Blackman) (and me) (and Andrew Hyman)
Michael Ramsey

Recently published, by Noah Feldman (Harvard): The Broken Constitution: Lincoln, Slavery, and the Refounding of America (Farrar, Straus and Giroux, 2021).  Here is the book description from Amazon:

Abraham Lincoln is justly revered for his brilliance, compassion, humor, and rededication of the United States to achieving liberty and justice for all. He led the nation into a bloody civil war to uphold the system of government established by the US Constitution―a system he regarded as the “last best hope of mankind.” But how did Lincoln understand the Constitution?

In this groundbreaking study, Noah Feldman argues that Lincoln deliberately and recurrently violated the United States’ founding arrangements. When he came to power, it was widely believed that the federal government could not use armed force to prevent a state from seceding. It was also assumed that basic civil liberties could be suspended in a rebellion by Congress but not by the president, and that the federal government had no authority over slavery in states where it existed. As president, Lincoln broke decisively with all these precedents, and effectively rewrote the Constitution’s place in the American system. Before the Civil War, the Constitution was best understood as a compromise pact―a rough and ready deal between states that allowed the Union to form and function. After Lincoln, the Constitution came to be seen as a sacred text―a transcendent statement of the nation’s highest ideals.

The Broken Constitution is the first book to tell the story of how Lincoln broke the Constitution in order to remake it. To do so, it offers a riveting narrative of his constitutional choices and how he made them―and places Lincoln in the rich context of thinking of the time, from African American abolitionists to Lincoln’s Republican rivals and Secessionist ideologues.

Professor Feldman summarizes the argument in the New York Times: This Is the Story of How Lincoln Broke the U.S. Constitution (concluding that "Lincoln violated the Constitution as it was then broadly understood three separate times."

At Volokh Conspiracy, Josh Blackman is skeptical.

First, Feldman writes that Lincoln "waged war on the Confederacy." I'm sure his book explains that Lincoln argued there was no war--merely a suppression of insurrection. But that fact doesn't make it into the essay. This inconvenient truth doesn't advance Feldman's narrative that Lincoln "broke[] and remade" the Constitution.

Second, Feldman cites the Emancipation Proclamation as another unconstitutional act. On balance, I agree with Justice Curtis that the Proclamation was unconstitutional. But Lincoln offered a cogent defense of the Proclamation as a wartime measure to appropriate confederate property. Again, Lincoln did not think he was violating the Constitution.

Third, Feldman cites the suspension of habeas corpus:

Lincoln suspended habeas corpus unilaterally, without Congress, arresting thousands of political opponents and suppressing the free press and free speech to a degree unmatched in U.S. history before or since. When Chief Justice Roger Taney of the Supreme Court held that the suspension was unconstitutional, Lincoln ignored him.

No, no, no. Lincoln did not ignore Taney. Read Seth Barrett Tillman's article, Ex Parte Merryman: Myth, History, and Scholarship. At this point, the failure to engage with Seth's work is academic malpractice. Feldman is not alone. Many prominent scholars continue to repeat this shibboleth.

I agree with the skepticism, only more so.

(1) In the Prize Cases (1863), the Supreme Court rejected the claim that the President's war against the Confederacy was unconstitutional.  Although the opinion isn't a model of clarity, it appears to rest on two grounds, both of which seem right to me.  First, the Confederacy initiated a state of war by attacking Fort Sumter and other federal institutions in the South.  Once a state of war is initiated by an enemy, the President has constitutional power to fight it, as part of the executive power and commander-in-chief power.  True, this is not an obvious reading of the Constitution's original meaning, but I have argued it is correct (see The President's Power to Respond to Attacks), and more importantly Hamilton argued that it is correct (in response to President Jefferson's dealings with Tripoli) (see the article linked above, Part II.C.).  Second, Lincoln had delegated power to fight the war under the Insurrection Act of 1807, which empowered the President to use federal troops to suppress insurrection and rebellion.  In any event, the main constitutional objection to Lincoln's warfighting is that it was unilateral, but once Congress reassembled it mostly ratified Lincoln's prior  actions.

(2) As to the Emancipation Proclamation, again I agree it's a somewhat close question but I think Lincoln had the better argument.  The President's war power includes power to seize or destroy enemy property (especially in a conflict approved by Congress, which the Civil War was by 1863).  If it had been a foreign war, the President's power over enemy property would be obvious.  The fact that the property was owned by U.S. citizens (albeit citizens in rebellious areas) makes it more difficult, but the Court in the Prize Cases concluded that the war should be treated (for purposes of property seizures) as a foreign war.  It follows that the President had power over enemy property in the Confederacy, including slaves.

(3) I agree with Professor Feldman that unilateral executive suspension of habeas corpus is unconstitutional under the Constitution's original meaning and was widely understood to be unconstitutional in 1861.  But I agree with Professor Blackman that Professor Tillman's scholarship makes the Lincoln/Taney episode substantially more complicated than it is often presented.

In sum, these are hard constitutional questions, made especially hard by the project of trying to fit a civil war into the Constitution's provisions for foreign war. Contra Professor Feldman, the Constitution was not "broadly understood" to operate in particular ways in this context because the context hadn't previously arisen.  On balance I think Lincoln's arguments -- at least with respect to waging war and the Proclamation -- were correct; at least, they were plausible.  As Professor Blackman says, Lincoln did not think he was violating (much less "breaking") the Constitution.

(Disclaimer: I haven't read the book yet, only the NYT article, so it may be that the arguments in the book are more nuanced.  But the central claims of the book as described in the article and book summary don't seem very nuanced.)

FURTHER THOUGHT:  I highly recommend Lincoln's Constitution by Daniel Farber, although I don't agree with all of it.

ANDREW HYMAN ADDS: Regarding habeas corpus, Lincoln himself did not claim that his action in the Merryman case was okay because Taney never gave him a direct order.  Instead, Lincoln’s justification was that Congress was not in session. Lincoln’s view was echoed and elaborated by Sidney George Fisher in his 1862 treatise on the Constitution:

The Habeas Corpus Act can only be suspended by Parliament; but in the absence of Parliament, or even when Parliament is in session, and the case demanded instant and secret action, the Ministers of the Crown, when the public safety has, in their opinion, required it, have habitually taken the responsibility of suspending the benefits or privilege of the writ. When Parliament meet, they immediately ask for a bill of indemnity, and also for a suspension of the act itself, should the danger continue. The consent of Parliament is therefore required for any invasion of personal liberty, either before or after such invasion, has always been asked since the statute of 31 Charles II, and has always been granted.

This seems right.

11/02/2021

New York State Rifle and Pistol Tomorrow (Updated)
Michael Ramsey

Likely the Supreme Court's most important originalism-oriented case this year, New York State Rifle & Pistol Association v. Bruen will be argued tomorrow (11/3).  The question presented is: 

Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

SCOTUSblog's summary of the case is here.  From the description of petitioners' arguments:

Starting with the text of the Second Amendment, [petitioners] stress that the Second Amendment protects two separate rights: the right to “keep” – that is, possess – arms, generally at home; and the right to “bear” – that is, carry, for confrontation or defense — arms, typically outside the home. The right to “bear” arms, the challengers posit, must mean something separate from the right to keep arms, or its inclusion in the amendment would be superfluous.

This reading, the challengers continue, is supported by the history of gun rights in England and the United States before the ratification of the Constitution, as well as the years that followed. That history is likely to be especially important to the court’s conservatives, who believe the Second Amendment should be interpreted according to its original understanding at America’s founding. Heller, which was written by former Justice Antonin Scalia, relied extensively on historical sources (though the dissenters in that case disputed Scalia’s historical analysis). And the court’s three newest justices – Neil Gorsuch, Kavanaugh, and Barrett – all have suggested that they favor an originalist approach to the Second Amendment, rather than the more functional approach that many lower courts have adopted.

The challengers say history is on their side. Neither the American colonies nor the early states barred their residents from carrying guns, they emphasize; indeed, they note, state and local governments sometimes required their residents to carry guns. And during the country’s early years, the challengers add, the only restrictions that courts recognized on the right to carry a gun for self-defense were “narrow” ones “on abusing that right to terrorize the people.” The history of freed slaves after the Civil War also confirms their interpretation, the challengers assert, as Congress and the federal government “insisted that securing their Second Amendment rights was critical to ensuring that they could protect themselves” – a belief that hinged on “the understanding that the Second Amendment guaranteed the right to carry arms outside the home for self-defense.”

Also at SCOTUSblog, Stephen P. Halbrook summarizes the textual and historical arguments for the claimants: In New York State Rifle, the court should look to text, history, and tradition.  For some recent discussion highlighted previously:

At Volokh Conspiracy, David Kopel: Corpus Linguistics and the Second Amendment

At the National Constitution Center, a podcast debate Is There a Constitutional Right to Concealed Carry? featuring Professor Kopel and former judge J. Michael Luttig, with Jeffery Rosen moderating.   More from Professor Kopel here: Luttig versus Kopel on the right to bear arms.

On SSRN,  Corpus Linguistics and Heller by James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) and Josh Blackman (South Texas College of Law Houston).

At Volokh Conspiracy, Stephen Halbrook: The Right to Bear Arms in Historical Context

It seems probable that these textual and historical arguments will have substantial play in the case.  I'll say again, though, that I don't see how the Court can fully consider the scope of the right to bear arms if the case is limited to the question of concealed-carry licenses (the question presented literally is so limited).  The question should be "Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense, taken with New York's other restrictions on the ability to carry arms in public, violated the Second Amendment."

UPDATE:  Some originalist counterpoints: 

At Slate, Saul Cornell (Fordham - History): Will the Supreme Court Create Universal Concealed Carry Based on Fantasy Originalism?

In the UC Davis Law Review (2021), Saul Cornell: The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America.

11/01/2021

The Constitution and the Minimum Corporate Tax Agreement (Part 2)
Michael Ramsey

This is my second post looking at the constitutional aspects of the recently announced international agreement on a global minimum corporate tax (the first post is here).  The first post concluded that the "agreement" in its current form (actually labeled a "Statement" by the participating countries) is not a binding international agreement.  Rather, it's in the nature of a terms sheet or memorandum of understanding -- a nonbinding  statement of agreement on general principles subject to implementation in more specific instruments.  Because it is not a binding agreement, the Statement itself does not implicate the treatymaking power under the U.S. Constitution; rather, for constitutional purposes it is a "political commitment" within the President's executive power in foreign affairs.

This post turns to the constitutional aspects of implementing the Statement.  The Wall Street Journal editorial that prompted these posts seems to recognize (though it does not actually say) that the constitutional problems, if any, may arise in the implementation (I agree).  Of course, that depends on how the Statement is in fact implemented.  But we can explore some alternatives.

The previous post also noted that the Statement contains two distinct projects with two distinct paths to implementation.  First, there will be (it is said) an agreement about the allocation of tax burden that would shift some taxing authority from a corporation's place of business to the corporation's place of sales (called "Pillar 1").  Second, there will be (it is said) a process for achieving a minimum tax rate for the participating countries (called "Pillar 2").

To take the second "pillar" first (because it has caused the most controversy): the Statement does not appear to contemplate that the minimum tax would be implemented through a binding agreement.  The Statement's discussion of the first pillar expressly discusses an implementing convention to be signed and ratified among the participating countries, but its discussion of the second pillar has no such references and indeed the second pillar seems deliberately omitted from the discussion of the implementing convention.  Instead, the Statement says:

The [minimum tax] rules will have the status of a common approach.  This means that [participating] members ... are not  required to adopt the [minimum tax] rules, but, if they choose to do so, they will implement and administer the rules in a way that is consistent with the outcomes provided for under Pillar Two, including in light of model rules and guidance agreed to by the [participating countries].

As noted in my previous post, this sounds like an optional regime in which countries can pass minimum tax rates if they choose.  Even if the Statement creates some general expectation that the participating countries will do so (and I'm not even sure it does that), it overtly refrains from saying that that expectation will be contained in a binding commitment.

True, the Statement next says:

[participating countries will] accept the application of the [minimum tax] rules applied by other [participating countries] including agreement as to rule order and the application of any agreed safe harbours.

This could be construed as a plan for a binding commitment, although given the optional language in the prior section I'm doubtful it should be.  But even if it is, as I read it this is a very limited commitment to respect other countries' minimum taxes if they adopt the approach set forth in the Statement.

As a result, despite concerns expressed in the commentary, it does not appear to me that the minimum corporate tax part of the Statement raises any constitutional difficulties in implementation.  It can be implemented (or not) by the U.S. Congress through ordinary legislation without any international law implications.  That's in accord with U.S. constitutional processes, and there's substantial history of legislation adopted in coordination with other countries without a binding international agreement.

The more interesting constitutional question arises from Pillar 1 (the agreement on allocation of taxable revenue), for which the Statement does contemplate implementation through a formal international agreement it calls the "Multilateral Convention (MLC)."  The Statement specifies that the MLC will be signed and ratified by participating countries -- steps that in international law typically indicate a binding commitment.  Moreover, the Statement contemplates several arrangements regarding Pillar 1 that are difficult to imagine implementing other than through a binding commitment.  For example, it says that affected taxpayers will have access to a dispute resolution process if they disagree with a participating country's allocation.  Although details are not provided, it is difficult to see how this process could be implemented satisfactorily other than through a binding commitment to some form of multilateral arbitration.

Assuming the MLC is presented as a binding commitment, U.S. participation would implicate the constitutional treatymaking power.  Of course, if it were submitted to the Senate as a treaty subject to a supermajority vote for approval, the constitutional treatymaking process would be obviously satisfied.  There might be an additional question whether the MLC could be self-executing or whether implementing legislation would be required pursuant to the Constitution's direction in Article I, Section 7, that "All Bills for raising Revenue shall originate in the House of Representatives."  I have no opinion on that question, but I think if there is a constitutional objection to a self-executing treaty it can be satisfied by a non-self-executing treaty plus appropriate legislation -- see discussion in this article.

The Journal editorial doubts that a treaty could be approved by the Senate in the Senate's current polarized state.  (I'm sure that's true for an agreement on a minimum tax, but as discussed the contemplated MLC likely won't have the minimum tax provisions.)  Could it instead be done by congressional-executive agreement (that is, approval by a majority vote in both Houses but not a Senate supermajority)?

I and others have argued that the Constitution's original meaning does not permit congressional-executive agreements; all binding international agreements must go through the treatymaking process unless they are in the narrow category of agreements that can be done by the President alone.  (My argument is principally in Chapter 10 of The Constitution's Text in Foreign Affairs; see also here from Laurence Tribe, with whom [on this issue, uncharacteristically] I entirely agree.)

Historically, congressional-executive agreements were rarely if ever used in the nation's early years.  Reviewing the early practice in this chapter, I concluded:

[U]ntil the late nineteenth century the overwhelmingly dominant form of U.S. international agreement making was the Senate-approved Article II treaty. A scattering of minor agreements occurred outside Article II, Section 2, but their constitutional basis was not well understood or explained, and they never posed a serious challenge to the preeminence of the process laid out in the Constitution’s text. Episodes that – had they developed differently – might have opened a path for rival processes, instead reaffirmed the role of the Senate ...

But in modern times congressional-executive agreements have become common, especially in trade law.  NAFTA, the agreements establishing the WTO, many bilateral free trade agreements, and the United States-Mexico-Canada Agreement (USMCA) that superseded NAFTA in 2020 are all examples, as are a number of key earlier agreements from the post-World War II era.

This practice raises a difficult question for originalists.  Originalism visibly struggles to incorporate non-originalist judicial precedent.  But I think originalism's struggle with precedent extends as well to entrenched non-originalist practices of the political branches.  Assuming congressional-executive agreements are not allowed under the Constitution's original meaning, what does an originalist make of the longstanding (since the end of World War II) practice of accepting them with minimal objection?  Bruce Ackerman and David Golove famously argued that the wide acceptance of the practice after World War II should be seen as a non-Article-V constitutional amendment.  I doubt many (any?) originalists would accept that view.  But the question remains whether non-originalist practice should carry precedential weight in an originalist system.

In the case of the MLC, I think there's a way to avoid answering that question.  My view, as to both judicial and non-judicial non-originalist precedents, is that originalists at most should read them narrowly.  (For a full discussion, see here.)  It is true that many congressional-executive agreements have been adopted without controversy since World War II in some areas. But international taxation is not one of those areas.  Instead, agreements regarding taxation of cross-border activities have continued to be handled by treaties approved by a Senate supermajority, even as congressional-executive agreements have come to dominate other areas such as trade law.  Thus, however originalists view the current constitutionality of trade-related agreements, they should not accept the expansion of congressional-executive agreements to a new field such as tax.  In an originalist analysis, the MLC must be adopted through the Constitution's treatymaking process.

10/31/2021

David Kopel on Corpus Linguistics in the Public Carry Case
Michael Ramsey

At Volokh Conspiracy, David Kopel: Corpus Linguistics and the Second Amendment. From the introduction:

Corpus linguistics is the scholarly technique of searching historic databases to gather information on the use of important words or phrases. In the pending U.S. Supreme Court on the Second Amendment to right to bear arms, New York State Rifle & Pistol Association v. Bruen, a pair of amicus brief purport to apply corpus linguistics to the Second Amendment. The briefs say that they prove that individuals have no right to bear arms, and that even if such a right exists, it is tiny. This post examines the claims in the briefs.

This post is co-authored by Campbell University law professor Gregory Wallace....

One of the amicus briefs is on behalf of three professors of linguistics—Dennis Baron (U. Illinois), Stefan Th. Gries (U. Cal. Santa Barbara), and Jason Merchant (U. Chicago)—and one law professor, Alison LaCroix (U. Chicago), who has written about corpus linguistics and founding era documents. It was filed by attorneys for Morrison & Foerster. The other brief is by and for Washington, D.C., attorney Neal Goldfarb. Goldfarb describes himself as "an attorney with an interest and expertise in linguistics, and in applying the insights and methodologies of linguistics to legal interpretation." His brief asks the Supreme Court to call for supplemental briefing on the corpus linguistics issues and to hold the Bruen case over to the next Term for argument on those issues. The arguments in both briefs are similar.

To be clear, we do not criticize corpus linguistics as a methodology. ... The persuasiveness of corpus linguistics claims depends on understanding words in context, considering all relevant sources, and classifying usages accurately. Some corpus linguists do so better than others.

Extensive analysis follow, leading to this conclusion:

Corpus linguistics can be a valuable tool for legal scholars. Future scholars intending to employ corpus linguistics can usefully study the New York State Rifle & Pistol Association amicus briefs as models of errors to avoid: ignoring usages that don't support an author's theory, failure to understand that a words can have multiple meanings at once, separating phrases from context that clearly shows their meaning, not considering the most precisely relevant context (here, the use of words in constitutions), and imposing twenty-first century usage (e.g., "war" is national defense but not personal defense) on earlier generations who used words differently from how modern Americans do.

RELATED:  At the National Constitution Center, a podcast debate Is There a Constitutional Right to Concealed Carry? featuring Professor Kopel and former judge J. Michael Luttig, with Jeffery Rosen moderating.  Professor Kopel comments here: Luttig versus Kopel on the right to bear arms.

ALSO RELATED, as noted earlierCorpus Linguistics and Heller by James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) and Josh Blackman (South Texas College of Law Houston).

The New York Rifle & Pistol case is potentially one of the most important cases for originalist methodology since, well, Heller.  I remain uneasy, however, about the Court's ability to engage the question presented (whether the Second Amendment protects the right to carry concealed weapons in public) without also considering the question (not presented) whether the Second Amendment protects the right to carry non-concealed weapons in public.

10/30/2021

Samuel Bray & Paul Miller: Getting Into Equity
Michael Ramsey

Samuel L. Bray (Notre Dame Law School) and Paul B. Miller (Notre Dame Law School) have posted Getting Into Equity (Notre Dame Law Review, forthcoming) (41 pages) on SSRN.  Here is the abstract:

For two centuries, common lawyers have frequently talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it shows equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, related to law rather than the other way around. Remedies, not rights, are what give it power. And for getting into equity, it is the grievance that is central. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets into equity.

At Volokh Conspiracy, Professor Bray notes that the paper has implications for United States v. Texas, which it discusses briefly.

10/29/2021

The Constitution and the Minimum Corporate Tax Agreement (Part 1)
Michael Ramsey

Earlier I posted (here and here) some general thoughts about the idea of a global minimum corporate tax.  Some objections have been raised to its constitutionality (see here from the Wall Street Journal editors).  Having taken a closer look at the agreement (such as it is) released by the participating countries earlier this month, I have some more specific thoughts.

The "agreement" in my view is at this point just a nonbinding statement of the general common parameters under which the participating countries are negotiating.  Its title is "Statement on a Two-Pillar Solution to Address the Tax Challenges Arising from the Digitalisation of the Economy."  It does not describe itself as an "agreement", "convention", or any other term commonly used in international law to indicate a binding instrument, nor does it make any reference to it being a binding commitment.  It is not signed on behalf of any participating government.  Throughout, it uses the word "will" (e.g., "There will be a new special purpose nexus rule ...") rather than "shall" or some similar word customarily used to indicate a binding agreement.  And it is light on details, making it evident that large amounts of the "agreement" will be filled in later.

All of this points to the "agreement" (as it is being called in the press, although the instrument itself is labelled only a "statement") being only a political commitment -- that is, a nonbinding expression of a common diplomatic interest or goal among the parties that is not understood as a legal undertaking in international law.  In that form, in my view it is entirely constitutional.  As argued in Evading the Treaty Power, a nonbinding political commitment does not infringe the treaty power because the essence of  treaty is its binding nature.  A nonbinding statement is, by definition, not a treaty:

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

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

Of course, the President still needs a source of constitutional power to enter into political commitments with other countries.  In my view, that power is supplied by Article II, Section 1's vesting of executive power in the President.  As argued many times (but originally here, with Saikrishna Prakash), the original meaning of that clause is best read to include foreign affairs powers not allocated elsewhere by the Constitution -- especially diplomatic power.  (In this particular case, the authority might come from the President's power to negotiate treaties, a point to be discussed later.)

This conclusion is reinforced by the Statement's treatment of the two "pillars" of the "solution."  As described by the Journal in the editorial linked above,

The deal comes in two “pillars” in the argot. Pillar one introduces a new method for determining which governments get to tax the revenues of the world’s 100 or so largest companies. Pillar two is a global minimum corporate profits tax with a rate of 15%.

As to the first pillar, it is principally concerned with what it calls "Amount A" (basically, the allocation of taxing authority for multinationals).  And it states directly that "Amount A will be implemented through a Multilateral Convention (MLC), and where necessary by way of correlative changes to domestic law, with a view to allowing it to come into effect in 2023."    Further:

In order to facilitate swift and consistent implementation, an MLC will be developed to introduce a multilateral framework for all jurisdictions that join ... Following its signature, jurisdictions will be expected to ratify the MLC as soon as possible, with the objective of enabling it to enter into force and effect in 2023 once a critical mass of jurisdictions as defined by the MLC have ratified it.

Thus, pillar one contemplates that its terms will be incorporated into a binding international agreement which the participating countries will then sign and ratify (or not).  It is, then, in the nature of a term sheet or memorandum of understanding in commercial law.  Reinforcing the point made above, participation in such an enterprise seems well within the President's diplomatic power -- the key, for constitutional purposes, is how the MLC is adopted.

Pillar two, in contrast, appears not to contemplate a binding agreement at all.  This is the part containing the minimum tax, which the Statement calls "the Global anti-Base Erosion Rules (GLoBe)."  [Ed.: wow, that is quite a strained fake acronym.] The Statement goes on to say that:

The GLoBE rules will have the status of a common approach.  This means that [participating countries] ... are not required to adopt the GLoBE rules, but, if they choose to do so, they will implement and administer the rules in a way that is consistent with the outcomes provided for under Pillar Two...

And further:

Model rules to give effect to the GLoBE rules will be developed by the end of November 2021.  These model rules will define the scope and set out the mechanics of the GLoBE rules.

Though not as clear as it might be, that sounds like implementation through a proposed model law that will be adopted (or not) by each of the participating countries at its discretion (like the proposed uniform laws, such as the Uniform Commercial Code, in U.S. domestic law).  Again, that seems to be an enterprise well within the President's diplomatic power, with the key being the treatment of the model rules once they are announced.

In sum, I don't see any constitutional problems so far.  It all seems in the nature of a diplomatic project either to produce a future international agreement or to produce guidelines for parallel domestic law approaches.  The question for constitutional purposes is how all this is implemented.  I will turn to that in the next post.

10/28/2021

Aaron Nielson & Christopher Walker: Congress's Anti-Removal Power
Michael Ramsey

Aaron L. Nielson (Brigham Young University - J. Reuben Clark Law School) and Christopher J. Walker (Ohio State University - Michael E. Moritz College of Law) have posted Congress's Anti-Removal Power (71 pages) on SSRN.  Here is the abstract:

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the president from controlling policymaking within the executive branch. Recognizing that a supermajority of the justices now appear to reject the principle from Humphrey’s Executor that Congress may prevent the president from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon jettison agency independence altogether.

This Article challenges that conventional wisdom. True, the Court is skeptical of statutory restrictions on the president’s removal power. But statutory removal restrictions are not the only tool to achieve agency independence. Instead, the Constitution provides Congress with what we dub the anti-removal power—i.e., the power to discourage the White House from using its removal power. For example, because the Senate has plenary authority under the Appointments Clause to withhold its consent for executive branch nominees there is no guarantee that the Senate will confirm a replacement if the president removes the incumbent for a poor reason. As Alexander Hamilton explained, the “silent operation” of that uncertainty often allows Congress to prevent removal in the first place. Similarly, James Madison acknowledged during the Decision of 1789 that although the Constitution (in his view) forbids statutory removal restrictions, Congress has means to make removal costly for the president, which prospect should “excite serious reflections beforehand in the mind of any man who may fill the presidential chair.”

Importantly, moreover, Congress can strengthen its anti-removal power by, among other things, enacting reason-giving requirements, raising cloture thresholds, and preventing presidential evasion of the Appointments Clause. Using history, real-world examples, and game theory, we demonstrate how Congress can create a level of agency independence without the use of statutory removal restrictions. We also explain why Congress’s anti-removal power has advantages over statutory removal restrictions, including a surer constitutional footing and enhanced accountability: both the president and Congress face political consequences for how they exercise their removal and anti-removal powers. Finally, we offer Congress a path forward to restore some agency independence, strengthen perceived decisional independence in agency adjudication, and limit judicial challenges to agency structures.

10/27/2021

James Cleith Phillips & Josh Blackman: Corpus Linguistics and Heller
Michael Ramsey

James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) and Josh Blackman (South Texas College of Law Houston) have posted Corpus Linguistics and Heller (Wake Forest Law Review, Vol. 56, No. 609, 2021) (77 pages) on SSRN.  Here is the abstract:

In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In short, an “individual” right. Justice Stevens, in his dissent, contended that the Second Amendment “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” That is, a “collective” right.

Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: “right of the people,” “keep and bear arms,” “keep arms,” and “bear arms.” Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics.

We rely on the Corpus of Founding Era American English (“COFEA”). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology.

Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia’s and Stevens’s descriptions of the Second Amendment’s original public meaning.

The authors presented an earlier version of the article at the 2019 Originalism Works-in-Progress conference in San Diego.