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48 posts from July 2011


Originalism on the Web
Michael Ramsey

Philip Shadd reviews Keeping Faith with the Constitution by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder.


Leonardo Pierdominici: Constitutional Adjudication and the 'Dimensions' of Judicial Activism: Legal and Institutional Heuristics
Michael Ramsey

Leonardo Pierdominici (European University Institute - Department of Law; University of Bologna - Faculty of Law) has posted Constitutional Adjudication and the 'Dimensions' of Judicial Activism: Legal and Institutional Heuristics (Sant'Anna Legal Studies Research Paper, n. 3/2011) on SSRN. Here is the abstract:

The dominant approach to constitutional law, and even more so to constitutional theory, has historically been judicial review-centered. Constitutional scholarship has often seemed “strong on positions and weak on analysis”, based on “foundationalist”/organic theories of judicial review, trying to justify or to reject the practice in to and dictating its parameters. Behind such strong positions, and behind the search for “first-best principles” of legitimacy, one can see a series of latent and intractable tensions, inherent in traditional constitutional theories of interpretation and adjudication: these tensions are the consequences of the unavoidably creative function of the judicial role. A pragmatic, second-best inquiry must probe the degree of such creativity, focusing on the questions of mode, limits, level of acceptability of law-making through the courts, and issues of institutional performance and systemic effects of adjudication.
In light of all this, the paper will provide a taxonomy of the different types of criticisms that constitutional theory has raised regarding what we can broadly describe as the democratic legitimacy concerns of constitutional review. These are often lumped together under the concept of 'judicial activism', ranging from the very existence of judicial review, the different forms of conceptualizing the proper role of judicial interventions and the different modalities of constitutional adjudication.

The paper will deal both with American and Continental historical constitutional theories as well as the most recent trends of Comparative Institutional Analysis. The objective is to sketch a useful framework and some heuristic devices for the study of courts, different kinds of constitutional adjudication, and the spaces of discretion which are thereby implied.


Customary International Law in the Early Post-Ratification Era
Michael Ramsey

This post continues my discussion of the originalist aspects of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011), a book I co-edited with David Sloss and William Dodge (brief description here).  In my last post, I described how, in the early post-ratification period, the Court aggressively applied treaties basically in the manner of statutes without employing the broad non-self-execution doctrine found in modern law.  Here I will note some of the book’s suggestions regarding the early Court’s application of customary international law.

Unlike the situation with treaties, it is harder to draw firm conclusions from early practice regarding the constitutional status of customary international law.  Two points seem fairly clear (and consistent with other founding era evidence); others seem debatable at best.

First, the Court from its earliest cases in the 1790s used customary international law as a rule of decision in cases in which it had jurisdiction from another source – principally in admiralty and maritime cases.  Glass v. The Sloop Betsey (1794) and Talbot v. Jansen (1795) are key cases launching this practice.  Contrary to the implications of Sosa v. Alvarez-Machain (2004), the Court did not seem to think it needed action by the political branches to authorize the incorporation of customary international law into U.S. law for this purpose.  The Court did not explain the source of its authority to apply customary international law, though elsewhere I have suggested that it naturally flowed from Article III’s grant of “judicial Power”: European and especially English courts routinely used customary international law to decide cases – particularly admiralty cases – prior to the Constitution’s adoption. 

Outside of admiralty and maritime cases, direct application of customary international law proceeded cautiously.  The Court gradually extended its use of customary international law from its core maritime subjects to broader private law areas such as commercial law and conflicts of law, where it became understood as part of the “general common law” recognized in Swift v. Tyson (1842).  Generally this was not controversial, except it was highly controversial whether customary international law could support criminal prosecutions – a question the Court ultimately decided in the negative, along with its general rejection of the common law of crimes, in the nineteenth century’s second decade.

Second, the Court apparently thought that Congress could override customary international law if it did so expressly. That’s the implication of the rule, stated in the 1803 case Murray v. Schooner Charming Betsy, that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”  (at p. 118).  The Court made the point more directly in a series of later decisions beginning with its War of 1812 cases (although some dispute remains: see the insightful set of comments to this post at Opinio Juris).  Again the Court did not explain the source of its belief, although it’s consistent with the text of Article VI, which identifies statutes but not customary international law as part of the “supreme Law of the Land.”

Beyond these points, though, early Court practice does not say much definitive on other controversial constitutional aspects of customary international law.  (1) The early Court did not clearly confront the question whether state statutes (like federal statutes) could override customary international law.  My own view is that several Justices in Ware v. Hylton (1796), which addressed customary international law as well as its better-known treaty holding, thought state statutes overrode customary international law (and again, this would be consistent with the omission of customary international law from Article VI); but my co-editors did not agree, and Ware is a notoriously difficult case to read.  Otherwise, the issue did not come up directly in the early period.  (2)  The early Court did not directly address whether customary international law was part of the “laws of the United States” sufficient to convey jurisdiction under Article III.  The Court did confront something like this issue in two later cases, in 1828 and 1832, which it resolved in a way that suggested no jurisdiction.  (3) The early Court did not directly confront the question whether the President is constitutionally bound to obey customary international law.  In at least two War of 1812 cases it said so in dicta.  But the question was not actually presented in either case, and the Court did not explain the textual basis of its assumption.  (Presumably the basis would be that international law is part of the “laws” which by Article II, Section 3 the President must “take care” are “faithfully executed”).  Thus on three contentious issues of customary international law’s constitutional status, early Court practice does not add much conclusive insight.

Perhaps the most notable aspect of the early Court’s customary international law practice is that the early Court tended to use customary international law indirectly, through application of what has become known as the “Charming Betsy” canon (after the 1803 case), construing ambiguous statutes not to violate international law.  Direct application cases were not as common as often supposed, and were mostly found in admiralty and maritime disputes, which are arguably their own distinct category. 

Scott Gerber: A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787
Mike Rappaport

Scott Gerber has published A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787. Here is the description from Amazon.com:

A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787, by Scott Douglas Gerber, provides the first comprehensive critical analysis of the origins of judicial independence in the United States. Part I examines the political theory of an independent judiciary. Gerber begins chapter 1 by tracing the intellectual origins of a distinct judicial power from Aristotle's theory of a mixed constitution to John Adams's modifications of Montesquieu. Chapter 2 describes the debates during the framing and ratification of the federal Constitution regarding the independence of the federal judiciary. Part II, the bulk of the book, chronicles how each of the original thirteen states and their colonial antecedents treated their respective judiciaries. This portion, presented in thirteen separate chapters, brings together a wealth of information (charters, instructions, statutes, etc.) about the judicial power between 1606 and 1787, and sometimes beyond. Part III, the concluding segment, explores the influence the colonial and early state experiences had on the federal model that followed and on the nature of the regime itself. It explains how the political theory of an independent judiciary examined in Part I, and the various experiences of the original thirteen states and their colonial antecedents chronicled in Part II, culminated in Article III of the U.S. Constitution. It also explains how the principle of judicial independence embodied by Article III made the doctrine of judicial review possible, and committed that doctrine to the protection of individual rights.


Treaties as Law in the Post-Ratification Era
Michael Ramsey

As I noted earlier, this week Opinio Juris has been hosting an on-line discussion this week of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011), a book I co-edited with David Sloss and William Dodge.  Though not a work of originalism, the book includes an account of how the Court treated international law in the early post-ratification era, including on issues implicating international law’s constitutional status.  Because originalist-oriented scholars may count this practice as evidence of the Constitution’s original meaning on these matters, I will highlight here and in subsequent posts a couple of the book’s key findings.

In the modern treaty law, a key question is whether a treaty is “self-executing” – that is, whether it is directly enforceable by courts without implementing legislation.  The Constitution’s Article VI says that “all” treaties are “the supreme Law of the Land” – language it also uses to describe statutes and the Constitution itself, thus indicating that treaties ordinarily can be enforced directly, as statutes and the Constitution can.  In the 2008 decision in Medellin v. Texas, however, the Court refused to enforce a treaty (Article 94 of the U.N. Charter) without implementing legislation and indicated generally that courts should closely scrutinize a treaty to see if the treatymakers’ intent was direct or indirect enforcement.  The Court even suggested at one point that a treaty would not be self-executing unless its text and context indicated that self-execution was intended.

The early history of treaties in the Supreme Court indicates, perhaps to a surprising extent, the Court’s willingness to apply treaties directly without implementing legislation.  The 1796 case Ware v. Hylton, in which the Court used the 1783 peace treaty with Britain to override a state law preventing recovery of debts owed to British creditors, is well known.  But it is less well known that the Court decided dozens of cases involving treaty-based claims in its early years.  For its first 30-plus years, not a single one of those cases asked whether the treaty obligations in question were or were not directly applicable: every case assumed they were.  In 1829, Chief Justice Marshall’s opinion in Foster v. Neilson pointed out that a treaty might in fact only impose obligations on Congress, and if so, the Court could not enforce the treaty’s provisions until Congress acted.  This point itself was not novel: the 1783 peace treaty, in a different provision than the one applied in Ware, directed that “Congress shall earnestly recommend” that states restore confiscated loyalist property (a provision obviously not judicially enforceable).  In Ware itself, Justice Chase wrote that “no one can doubt that a treaty may stipulate that certain acts be done by the Legislature”  (3 U.S. at 244). Marshall thought the treaty at issue in Foster imposed obligations only on Congress (though he later changed his mind).

But the experience of treaty enforcement in the early post-ratification period shows that the Court thought that the ordinary language of treaty obligations almost always created directly enforceable rules.  Further, the Court thought treaties routinely created rights that could be enforced by individuals, and it routinely ruled against the U.S. executive in treaty cases.  (See Chapter 1, Part II of the book).  Indeed, these practices continued long after Foster.  As the book’s later chapters show, the modern idea of “non-self-executing” treaties (and the related idea that treaties often do not create rights enforceable by private individuals) did not gain much traction until after World War II.

In an illuminating comment on the book at Opinio Juris, Jeremy Rabkin suggests that the changing nature of treaties underlies the doctrinal embrace of non-self-execution.  I think this may well be correct:  particularly after World War II (corresponding to the rise of non-self-execution doctrine) treaties became increasingly multilateral, aspirational, and intrusive upon domestic legal arrangements – all developments that made judicial enforcement more problematic.

If true, this account suggests that treaty non-self-execution is an instance of living constitutionalism – courts “updating” the Constitution’s text to take account of perceived new realities.  That conclusion may in turn be somewhat unsettling to both sides in the debate over originalism.  As an admitted over-generalization, with modern political and jurisprudential alignments an inclination toward originalism may correspond with a suspicion of international law (and suspicion of originalism may correspond with an embrace of international law).  It’s worth noting that the Court’s originalists in Medellin found the treaty at issue to be non-self-executing without any explanation of how their approach accorded with the Constitution’s text or post-ratification practice.  And internationalists may be observed invoking the text and early history of treaty enforcement as dispositive of the Constitution’s true meaning on that point yet affirming the need for constitutional evolution elsewhere.  As in some other areas I have highlighted, treaty enforcement may be an issue where the Constitution’s original meaning puts modern political and jurisprudential commitments in conflict. That, of course, makes it all the more interesting.

Originalism in the Blogs: Eugene Volokh on the Freedom of Speech
Michael Ramsey

Eugene Volokh:  What Part of "Make No Law" Don't I Understand?

A sophisticated and insightful post by Professor Volokh, who's becoming the premier scholar of the original meaning of the free speech clause.  The central point:

[T]he First Amendment doesn’t say that Congress shall make no law restricting speech or press; rather, Congress can’t restrict “the freedom of speech” and “the freedom of the press.” Maybe that’s just a fancy way of saying “speech” and “press.” But maybe it suggests that “the freedom of speech” and “the freedom of the press” were references to broader legal concepts that were used to refer to limited freedom, not unlimited freedom. For instance, perhaps the freedom of speech and of the press were understood as excluding libel and slander, or possibly even obscenity, threats, and some other kinds of speech.

As a result, he suggests (and I agree) there's no inherent contradiction between the First Amendment's apparently absolute language ("shall make no law") and the historical practice of restricting some kinds of "speech."


Originalism in the Journals: Jed Rubenfeld on Affirmative Action
Mike Rappaport

Today starts a new feature at the Originalism Blog: Originalism in the Journals.  This will involve a discussion not of new originalist articles, but of old ones that have previously been published.

I came across this 1997 Yale Law Journal article by Yale Law Professor Jed Rubenfeld recently.  Only a portion of it is devoted to originalism, but that portion is very weak.  Perhaps it is sign of progress in the understanding of originalism (even among nonoriginalists) that I don’t think it would be published this way today.

Rubenfeld believes that he has made a great discovery – one that suggests that affirmative action cannot be unconstitutional as an original matter.  And he wants to play gotcha with the conservative originalists on the Court.  The article has that tone.  The problem is that he has not gotten anyone. 

Rubenfeld argues

Although it is a matter of public record, most lawyers and judges are unaware that Congress in the 1860s repeatedly enacted statutes allocating special benefits to blacks on the express basis of race (and I am not referring to the well-known Freedmen's Bureau Acts, [FN2] which did not rely on express racial classifications). Accordingly, to be true to their principles, two of the five Justices in the prevailing anti-affirmative action majority-- Justices Scalia and Thomas, whose commitment to original understandings and practices is also a matter of record--should drop their categorical opposition to race-based affirmative action measures.

Having set forth his position, Rubenfeld lays out his evidence:

In July 1866, the Thirty-Ninth Congress--the selfsame Congress that had just framed the Fourteenth Amendment--passed a statute appropriating money for certain poor women and children. Which ones? The act appropriated money for “the relief of destitute colored women and children.”  In 1867, the Fortieth Congress--the same body that was driving the Fourteenth Amendment down the throat of the bloody South--passed a statute providing money for the destitute in the District of Columbia.  (And remember that Congress is the constitutional analogue of a state legislature for the District of Columbia.) What classification did Congress adopt in this poor-relief statute? Relief was to be given to the destitute “colored” persons in the nation's capital. Year after year in the Civil War period-- before, during, and after ratification of the Fourteenth Amendment--Congress made special appropriations and adopted special procedures for awarding bounty and prize money to the “colored” soldiers and sailors of the Union Army.

But this is silly.  It is true that Congress did enact statutes allocating special benefits to blacks on the express basis of race.  But this does not show that section 1 of the 14th Amendment, including the Equal Protection Clause, does not forbid special benefits on the basis of race.  Rubenfeld has forgotten something very elementary: Section  1 of the 14th Amendment forbids states from denying anyone equal protection of the laws.  That section does not apply to the federal government.

Oops.  Rubenfeld might have forgotten this because so much of modern law is nontextual and ignores this basic fact.  In fact, some originalists forget it.  But it is clearly in the 14th Amendment.

Why did Congress not forbid discrimination by the federal government when it proposed the 14th Amendment?  Hard to know for sure.  Perhaps it did so because it wanted to confer special benefits to blacks in the near future.  Perhaps it did not want to impose limits of the federal government generally.  Perhaps it believed that only the states, given their history, could not be trusted with this power.   

Rubenfeld is right about one thing.  The Congress that proposed the 14th Amendment did not oppose color conscious statutes passed by the federal government.  But that says nothing about what they intended, or what the 14th Amendment meant, for the states.   

There is a lot more that could be discussed here: Subjects such as the enumerated powers for these statutes, the effect on precedent such Bolling v. Sharpe, etc. But the basic point remains. 

Rubenfeld concludes his first section:

I am no originalist, so I cannot regard the practices of Congress in the 1860s as dispositive of affirmative action's constitutionality. In fact, nearly no one today is a true equal protection originalist, because true equal protection originalism would repudiate Brown v. Board of Education. [FN25] Hence the point is not to foreclose argument by citing old statutes. It is to begin the argument with a little more candor. The colorblind contingent must begin by recognizing that they are calling on courts to render the kind of judgment about justice (beyond the letter of the law, beyond original intent) that elsewhere they deplore.

I would say that Rubenfeld owes “the colorblind contingent” some amendments to his article.  It is he who "must begin to recognize" that his accusation was seriously deficient.

Update: I fixed a typo in the post in response to an e mail. 

Originalism in the Blogs
Michael Ramsey

At Slate, Doug Kendall and Dalhia Lithwick, Off Balance: The Balanced Budget Amendment Would Make the Framers Weep.


International Law in the U.S. Supreme Court
Michael Ramsey

Beginning today, Opinio Juris is hosting an on-line discussion of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011), a book I co-edited with two outstanding scholars, David Sloss (Santa Clara University Law School) and William Dodge (Hastings Law School).  Participants will include Ken Anderson, Harlan Cohen, Andrew Kent, Jenny Martinez, Jeremy Rabkin, and Ingrid Wuerth.

The editors’ introductory description of the book is here.  The book is not a work of originalism but elements of it may be of interest to originalist-oriented scholars.  It describes the Court’s approach to international law throughout the Court’s history and thus covers (among other things) early post-ratification practice that may inform the Constitution’s original meaning.

In particular, the book sheds light on two original-meaning questions at the intersection of constitutional law and international law.  The first is the question posed in the Court’s 2008 case Medellin v. Texas: to what extent do treaty obligations function as law in the U.S. domestic legal system?  The second is the question posed (to some extent) in the Court’s 2004 case Sosa v. Alvarez-Machain: to what extent is customary (unwritten) international law directly enforceable by U.S. courts?

In parallel with the Opinio Juris discussion, this week I’ll post some thoughts on this blog on the conclusions the book suggests regarding these two issues.

Originalism on the Web
Michael Ramsey

Damon W. Root: Death to the Living Constitution.