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45 posts from September 2011


Originalism in the Blogs
Michael Ramsey

At Volokh Conspiracy, Nicholas Rosenkranz concludes his excellent series of posts on "The Subjects of the Constitution."

This series is worth a careful read in full, as it is to my knowledge by far the most sophisticated textualist exploration of the puzzle facial and as-applied challenges, an extraordinarily confused and undertheorized area of constitutional law.

Here again is the entire series:

The Subjects of the Constitution

Who Has Violated the Constitution?

The Subject of the Commerce Clause

The Objects of the Constitution

The Objects of the Fourteenth Amendment

The Subjects of the Constitution – Final Thoughts

Al Blumrosen and Steven Blumrosen: Restoring the Congressional Duty to Declare War
Michael Ramsey

Al Blumrosen (Rutgers, The State University of New Jersey - School of Law-Newark) and Steven Blumrosen (Rutgers, The State University of New Jersey - School of Law-Newark) have posted Restoring the Congressional Duty to Declare War (Rutgers Law Review, Vol. 63, No. 2, 2011) on SSRN. Here is the abstract: 

For more than a century and a half, Congress declared war as the framers of the Constitutional Convention of 1787 directed when they wrote that Congress had the “power to declare war.” But starting in the 1950’s, Congress began authorizing the President to make the determination for war and voters were deprived of the power to influence their Congressional representatives. The result has been labeled an AUMF (Authorization for Use of Military Force). It was used in the Vietnam War of 1965-73 and the 2003 war against Iraq, 2003 to the present.

The Delegates to the Convention of 1787 were determined to create a stronger executive than under the Articles of Confederation, while not copying the European idea that kings had the prerogative to take their nation to war. This tension surfaced on June 1, when the Virginia Delegation recommended that the new president have the “executive powers” of the old Articles of Confederation. Delegate Charles Pinckney of South Carolina protested that such powers might include the power to take the nation to war, which would make the Presidency “a Monarchy of the worst kind.” His objection was supported by all who spoke; the Convention voted to put the war power in Congress. Virginian James Madison then moved to give Congress the power to authorize the new President to make the decision to commence war. The Convention rejected this proposal by a vote of 7 states to 3 states, assuring that the Congress would make the decision to “make war.” Several times during the Convention, the delegates re-affirmed that the war power would be in Congress, including the House of Representatives which, at that time, was to be the only body elected directly by the voters. In August, 1787, when the Convention was working on the final text of the proposed Constitution, Charles Pinckney pointed out that Congress might not be in session when the nation was attacked. The term “make war” was changed to “declare war” to allow the President to repel sudden attacks, and Congress was allowed to permit the President to call out the Militia to execute federal laws and suppress insurrections.

In using the power to declare war during the “quasi war” with France of 1798-1800, Congress defined in detail the hostile actions that the President could take in seizing French ships and limited the time in which the President could take action. The Supreme Court, in detailed opinions, upheld the Congressional power to determine what Presidential actions could be taken. These cases, Bas v. Tingy (1800) and Talbot v. Seeman (1801), settled the power of Congress to determine the scope of hostilities. 

For over a hundred and sixty years Congress declared war, from the statutory limitations of the quasi-war against France, through the War of 1812 against the British, Algeria in 1815, the Mexican War (1846), the Spanish War (1898), World War I, to the several formal declarations of all-out war in World War II. Since the beginning of the “Cold War,” however, in stark contrast with the votes of June 1, 1787 Congress has authorized Presidents to decide whether to use military force against a foreign nation. Presidential decision-making has been disastrous for our nation. Particularly in the Vietnam War of 1965-1973 and the War against Iraq, started in 2003 and continuing today, we have squandered blood and treasure – and interrupted the tranquility of domestic life – in proceeding where we had no Constitutional basis for massive intervention. 

The Federal Courts have ignored the history of both the language that was included in the Constitution and the decisions that were made during the first 160 years under the Constitution. Those were years when the nation was fraught with dangers, close to home and on its borders and overseas, that were similar to the present terrors we now face. In addition, the electorate – who was supposed to be able to vote for representatives in Congress who, in turn, were given the veto power over war – is deprived of influence over their representatives.


Michael Mannheimer: Proportionality and Federalism
Michael Ramsey

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Proportionality and Federalism: a Response to Professor Stinneford (Virginia Law Review In Brief, Vol. 97, p. 51, 2011) on SSRN. Here is the abstract:

John Stinneford’s latest article, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, sheds fresh light on the original public meaning of the Eighth Amendment. Stinneford provides the most cogent rejoinder to date to Justice Scalia’s position that the Cruel and Unusual Punishments Clause contains no proportionality principle. Stinneford demonstrates the unlikelihood of this claim by showing that (1) the best reading of the Clause’s English ancestor was that it encompassed a proportionality requirement and (2) the nearly contemporaneous uses of the term “cruel and unusual punishments” in other areas of the law implicated proportionality requirements.
But to show that the Clause contains some proportionality requirement gets us only part of the way to an understanding of what that proportionality principle demands. Where Stinneford’s work falters is in its articulation of the proportionality requirement of the Cruel and Unusual Punishments Clause as understood in 1791. He claims, in essence, that the Clause was understood as generally constraining Congress from inflicting punishments that were significantly harsher than those imposed at common law for the same offense. While Stinneford’s assertion that the Clause imposed common-law constraints on Congress’ power to punish is well supported, he incorrectly assumes that there was universal agreement in 1791 that the common law was of the pre-realist, brooding-omnipresence-in-the-sky variety. To the contrary, the conceptions of the common law in 1791 were far from homogenous. To be sure, some during the framing period took the pre-realist view that the common law was uniform and obligatory irrespective of sovereignty. Yet, many others asserted, as the Legal Realists later would, that the content of the common law was simply a matter of public policy that differed from state to state, especially as regards the law of crime and punishment. More importantly, it was generally the Anti-federalists, who conditioned ratification of the Constitution on the inclusion of a Bill of Rights, who propounded this more modern, realist notion of the common law of crime. Nothing shows this better than the debate over the existence of a general federal criminal common law that took place during the first twenty years of the Republic.

In short, while Stinneford is probably correct that the Cruel and Unusual Punishments Clause was widely understood in 1791 as imposing common-law constraints on the federal government’s power to punish, it is unlikely that there was any consensus as to what that meant. In particular, the Anti-federalists took a more state-centered approach than Stinneford would allow. Under such an approach, the federal government would generally be barred from imposing any punishment harsher than that authorized for the same offense conduct by the State where the conduct took place.


An Originalist Defense of Social Security
Michael Ramsey

With Rick Perry questioning the constitutionality of Social Security and Mitt Romney attacking him for it, Andy McCarthy at NRO challenges Romney to explain his own constitutional position in this insightful post: Questions for Governor Romney on the Constitutionality of Social Security.  McCarthy doesn’t say so directly, but his post implies substantial sympathy with Perry’s view on originalist grounds.  I can’t speak for Romney, but here’s what I’d say in his place: originalism (of the text-based sort, at least) firmly supports the constitutionality of Social Security.  (As an aside, so do precedent and judicial restraint, but the focus here will be originalism).  I’ll give a general overview of the argument and then try to answer McCarthy’s specific questions.

Congress’ power to enact Social Security arises from the first clause of Article I, Section 8 (what McCarthy calls the General Welfare Clause, or what I'll call the Spending Clause).  By that clause, Congress has power “To lay and collect Taxes . . . to . . . provide for . . . the general Welfare of the United States.”

Nothing in that phrasing purports to limit the purposes of the spending to the powers listed in the rest of Article I, Section 8 (or elsewhere in the Constitution).  It appears on its face to be a stand-alone power – a textual point made by Alexander Hamilton soon after ratification.  If the framers had wanted to limit the clause's scope to subsequently listed powers, they knew how to do it.  Article I, Section 1 describes Congress as having “all legislative Powers herein granted” and Article I, Section 8’s necessary-and-proper clause gives Congress power to make regulations “for carrying into Execution the foregoing powers…”  So when the drafters wanted to make limiting cross-references, they made them expressly.  Correspondingly, the Spending Clause could have said that Congress has power to collect taxes “to carry into execution the powers herein granted.”  The fact that the spending clause is not drafted this way is good evidence that this is not what was intended.

It’s true, as McCarthy points out, that after ratification Madison advanced a limited reading of the clause (contrary to Hamilton).  But Madison’s argument (unlike Hamilton’s) was not mostly based on text.  Indeed, it’s hard to see how it could be.  The only way textually to get to Madison’s position is to say that the historical meaning of “general Welfare” included only the items listed elsewhere in the Constitution.  But there’s no reason in ordinary language to limit it that way.  Quite a few things are in the “general Welfare” of the United States (that is, they would be widely beneficial) but aren’t part of Congress’ enumerated powers.  Laws prohibiting guns in schools and prohibiting violence against women are widely beneficial, but the Supreme Court (quite rightly, in my view) has said that these laws are beyond Congress’ enumerated powers.

Instead, Madison argued (as McCarthy paraphrases) that the Spending Clause “had to be understood as limited by the powers enumerated in Article I, Section 8” – that is, that structural imperatives require us to read into the text a limit that isn’t there.  I’m generally suspicious of these sorts of arguments, because they are an invitation to substitute one’s own views of the best constitutional structure for what the text actually says.  Usually it’s not the case that the proposed interpretation is essential, only that it would be a good idea.  And indeed here the supposed necessity seems weak.  The claim is that, unless the Spending Clause is limited to enumerated powers, the federal government would have (as McCarthy says) “overwhelming authority.” 

Surely that overstates.  The Spending Clause is only about spending, not about other powers – in particular, it’s not about regulation, which is covered in subsequent clauses.  That’s why I prefer “Spending Clause” to “General Welfare Clause”: it does not say that Congress can legislate for the general welfare.  And, prior to the Sixteenth Amendment Congress’ taxing powers were somewhat circumscribed, so there was a substantial limit on how much it could spend.

McCarthy goes on to say (paraphrasing Madison's argument) that a broad reading of the Spending Clause “would undermine the Constitution’s federalist system, in which the states maintained sovereign power, the central government’s powers were strictly limited, and the individual was protected from federal intrusions.”  It is no doubt true that we would have a weaker national government and a more decentralized federalist system under a limited view of the spending clause.  That does not mean, though, that this must have been what the founding generation chose.  We know what they chose principally from the text and from widely shared assumptions and understandings of the time.  But the choice of a relatively weaker versus a relatively stronger national government was contested at the time (note Hamilton and Madison’s disagreement).  There’s no reason to assume that the text must take Madison’s view in the face of a plain meaning that appears not to.  Madison, after all, was at that point not a disinterested observer – he was a politician with a decided point of view.

In sum, the Constitution’s text does not on its face tie Congress’ spending power to Congress’ subsequently enumerated powers, and the reasons offered for departing from the text are not compelling.  To be sure, there are sophisticated originalist scholars who disagree with this view, but that is likely because their version of originalism is less text-driven than mine.  Thus the originalist case for Social Security seems (sadly, perhaps, as I’m no great fan of that program or of substantively unlimited federal spending) quite well-founded.

*  *  *

At the end of his post, McCarthy poses a series of excellent questions for Romney to answer.  (I can see McCarthy would have a fine future as a law professor).  Here are my answers:

Do you think Social Security is constitutional? 

Yes, for the reasons stated above, and because that question was decided by the Supreme Court in Helvering v. Davis in 1937; even a very weak view of precedent would indicate adherence to a decision that has a plausible basis in the text, is deeply entrenched and has not been widely questioned for much of its history, and which has induced substantial reliance by many people and institutions.  Further, on a close question judicial restraint would suggest upholding the decision of the political branches.

Do you think Social Security is consistent with an originalist interpretation of the Constitution?

Yes, for the reasons stated above.  The dominant strand of contemporary originalist theory emphasizes the central role of the text.  The Spending Clause's text does not link the power it grants to the powers granted elsewhere in the document.  Founding-era evidence is at best mixed (Madison had a limited view, but Hamilton did not).

Do you think the Supreme Court of the New Deal era was correct to reject James Madison’s interpretation of the General Welfare Clause?

Yes.  Although the question implies that Madison is in impeccable indicator of original meaning, his post-ratification views sometimes had flaws.  Often when he disagreed with Hamilton, Hamilton seemed on stronger ground – examples include Madison’s view in the Pacificus/Helvidius debates that the President could not issue a neutrality proclamation, and Madison’s view (rejected by Marshall in McCulloch v. Maryland) that Congress could not charter a national bank.  For whatever reason – perhaps it was Jefferson's influence – Madison began to adopt especially narrow views of federal power.  Another way to put it is that the Supreme Court’s view is consistent with Hamilton’s view, which should be comfort to originalists.

Do you agree with the Supreme Court’s assertion in the Helvering case that the meaning of the General Welfare Clause changes with the times?

I wouldn’t endorse all of the evolving Constitution language in Helvering v. Davis, but that language isn't necessary to the result.  The result can be reached on purely originalist grounds.

If the General Welfare power gives Congress authority to set up a compulsory retirement insurance system, and a compulsory disability insurance system, would it not also give Congress the authority to set up a national healthcare system?

Yes, if that could be accomplished through spending alone (I’m not sure it could be).  This is a distinct question from whether the recently enacted health care law is constitutional, because that law does not proceed via spending alone.

Are there any limits to what Congress may do under its power to provide for the general welfare?

The power is to spend money to provide for the general welfare (not to do anything that promotes the general welfare).  And a practical limit is that Congress must get the money from somewhere.  (This was a more significant limit before the Sixteenth Amendment).


Originalism in the Blogs
Michael Ramsey

Steven Schwinn: Stone and Marshall on Constitutional Interpretation.  (The Stone & Marshall essay, published here by the American Constitution Society, is I think the one I noted earlier here as also being published at Huffington Post).

Ed Whelan, at NRO, has an extensive and sharply critical assessment: Stone/Marshall Critique of Judicial Conservatism, Part 1 and Part 2.

UPDATE:  Ed Whelan adds a third installment, particularly focusing on the Stone/Marshall claim that McCulloch v. Maryland supports an evolving reading of the Constitution.

Originalism in the Blogs
Michael Ramsey

At Volokh Conspiracy, more from guest-blogger Nicholas Rosenkranz: Who Has Violated the Constitution?

UPDATE:  An additional, and very useful, new post in this series: The Subject of the Commerce Clause.


Substantive Due Process Part III: Complications
Mike Rappaport

After quite a delay, this is my third post on substantive due process.  In my first post, I discussed the evolution of my personal views on substantive due process.  In my second post, I described Ryan Williams new article, The One and Only Substantive Due Process Clause, which argues that the original meaning of the 14th Amendment protects certain types of substantive due process, but that the 5th Amendment protects only procedural due process.  In particular, Ryan argues that 14th Amendment Due Process Clause protects two types of substantive due process.  One type is the general law conception, which

interpreted due process to require general and impartial laws rather than “special” or “class” legislation that imposed particular burdens upon, or accorded special benefits to, particular persons or particular segments of society.

The second type is the vested rights conception, which

prohibited two closely related forms of legislative interference with private property: (1) depriving persons of property for use by the public without compensation and (2) transferring property from person A to person B, either with or without compensation.

In this post, I examine Ryan’s argument more critically, discussing issues that remain to be developed.  To understand this post, readers should be sure to read my second post describing Ryan’s article.     

As I stated in the prior post, the key claim for me is the following: 

By the time of the Fourteenth Amendment’s ratification in 1868, courts in at least twenty of the thirty-seven then-existing states had endorsed some version of substantive due process in connection with interpreting either due process, law-of-the-land, or similar provisions in their own constitutions or the Fifth Amendment Due Process Clause. By contrast, courts in only two states—New Hampshire and Rhode Island—had explicitly rejected a substantive role for such provisions.

This is a very powerful claim – 20 states versus 2 – but one wants to be sure about it.  Thus, it would help if other scholars examine these cases and the caselaw generally, and confirm Williams’s interpretation.  His claim is sufficiently important that other scholars may do this.  

Assuming that this claim is correct, I have three main questions to ask. 

 First, how do we address the fact that Williams finds evidence of two types of substantive due process?  If there is evidence from 12 states for one type and from 8 states for the second type, then it is harder to argue for the dominance for any type of substantive due process.  For example, type A might be followed by 12 states, type B by 8 states, and no substantive due process by 2 states.  We might still accept substantive due process of one type, but the evidence would be less overwhelming.  (And since the vested rights conception of substantive due process has two versions, perhaps our list of cases should be divided into three categories, A, B, and C, further reducing the dominance of any one approach over the no substantive due process interpretation.)  Of course, individual states might follow more than one type.      

Second, I have questions about the meaning of the two types of substantive due process.  Consider the vested rights type that prohibits a law that transfers property from A to B.  How broad is this principle?  Does it merely cover a naked transfer or could it reach laws that benefit one group at another’s expense based on the assertion of a public interest, such as a law that would prohibit liability for the results of construction to nearby landowners justified as a means of promoting economic growth?  Or consider the general law conception of substantive due process, which requires general and impartial laws rather than special or class legislation.  How should we understand this provision?  Most importantly, what constitutes special or class legislation?

Finally, one can ask questions about how these two types of substantive due process fit into the remainder of the 14th Amendment and the Constitution.  For example, would it have made sense for the enactors of the Amendment to have included a provision protecting against class legislation if they already had an Equal Protection Clause?  Similarly, how does substantive due process relate to the Privileges or Immunities Clause, if the latter protects substantive individual rights.  These questions are both relevant to whether the Constitution adopts these two approaches to substantive due process and, if so, to the meaning of other provisions of the 14th Amendment.

To conclude, I do not mean to criticize Ryan’s article, which is probably the best originalist piece in the field.  It is just to argue that there is plenty of room for a second article.  

Originalism on the Web
Michael Ramsey

Fordham Law School will offer a course on History, Originalism, and the Founders Constitution.

Here's the course description:

The theory of originalism has gained strength in recent years. Indeed, originalism now has adherents across the contemporary political spectrum, including scholars on the right as well as the left. There is really only one group of scholars largely immune to the lure of originalism: historians.  At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. In practice most historians find originalist method deeply flawed. The course will explore the methodological questions raised by originalism and compare originalist method with orthodox historical practice. We will examine the application of originalism to variety of hot topics in law, issues such as foreign affairs, the First, the Second, the Tenth and the Fourteenth Amendment. In addition to sampling originalist scholarship on these topics we will look at how historians have viewed the same issues. The class will examine the relative merits and problems with each type of approach. Each student will write a research paper exploring these methodological issues within the context of a specific problem in American constitutional law or history.

Saul Cornell is the professor – an outstanding historian but (I think) not very sympathetic to originalist approaches to interpretation.  It will take some work to avoid making this just a semester-long argument against originalism.  (But even if that's all it is, it's a credit to the influence of originalism that a major law school is devoting a course to refuting it).

At the same time, Cornell is clearly on to something.  Generally speaking, there's often a significant difference between the way historians approach the question of historical meaning and the way legal scholars approach it.  I'm not sure it's helpful to frame the question as whether originalism is a good idea (as this course description seems to, though perhaps only for rhetorical purposes).  Historians often aren't opposed to the idea of original meaning, or even to the idea of trying to use history to solve current legal issues (not least in "historian's briefs" to the Supreme Court).  Rather, they tend to have a different idea of what it means to look for historical meaning.  There are important insights to be had here, though not if the point of the course is to make originalism look bad, or even if the course is taught only from the perspective of a historian.


Originalism in the Blogs
Michael Ramsey

This week, The Volokh Conspiracy will host another outstanding guest-blogger of originalist interest, Nicholas Quinn Rosenkranz.

UPDATE: Here is Professor Rosenkranz's first post: The Subjects of the Constitution.

Originalism and Classic Cases: Nollan v. California Coastal Commission
Michael Ramsey

With this post I’m going to start an occasional originalist commentary on cases I’m teaching in this semester’s Constitutional Law II course.  The case I’ll focus on here is Nollan v. California Coastal Commission, which we covered last week.  Nollan, I think, poses a serious challenge to originalism, for reasons I’ll explain.  (Disclaimer: Nollan is a takings case, and takings is not my core area of scholarship, so there may be more complete analyses of this point that I’m not familiar with).

Somewhat oversimplified, the question in Nollan was whether the Commission could require a landowner, as a condition of receiving a permit for additional construction on the landowner’s property, to dedicate a public easement across the land to reach a public beach.  The landowner claimed a taking under the Fifth Amendment.  Assume that (a) the Fifth Amendment’s original meaning would not allow the Commission simply to compel dedication of the easement, but (b) the Fifth Amendment’s original meaning would allow the Commission to deny a permit for additional construction on the property.  (Also assume that something in the Fourteenth Amendment incorporates the Fifth Amendment's takings clause against the states).  What result under an original meaning approach?

The Supreme Court, per Justice Scalia, held for the landowner, but the opinion is almost wholly devoid of originalist analysis.  I think that’s because there’s no easy way for originalism to handle the case.  First, I take it that there’s no commentary or practice from the relevant period (whether that’s the 1790s or the 1860s) because governments typically didn’t engage in this sort of land use regulation at the time.  (Perhaps there actually is some direct evidence which might solve the problem, but I bet there isn’t, or Scalia would have cited it.)  So what does originalist analysis do?

I can see several options, but none seems promising.  One is to look for an analogy in some other field where there is original practice.  Nollan is basically an unconstitutional conditions case (that is, the government allows the citizen to get something valuable in return for giving up a constitutional right).  So maybe founding-era practice on unconstitutional conditions in other areas might help.  But I doubt it: unconstitutional conditions analysis notoriously leads to mixed results – it seems that sometimes the conditions can’t be allowed and sometimes they can, with the line being very difficult to draw.  Any application of this practice by analogy (even assuming there is conclusive practice in another field) is likely to be heavily contested.

Another approach would be to look for a “principle” behind the Fifth Amendment that informs the resolution of the case.  Perhaps that’s what Scalia tried to do.  Allowing the government to impose the choice forced on the landowner in Nollan would, he thought, undermine security of private property (because governments would be tempted to impose bogus use limitations to get leverage for all sorts of petty extortions); since the principle behind the Fifth Amendment was security of private property, the government action shouldn’t be allowed.  But this seems a doubtful venture – I’m not sure how to go about it in a principled way, and I’m fairly sure that, however the inquiry is framed, its outcome will turn more on the policy intuitions of the decisionmaker than anything objectively discoverable.

Perhaps we could resolve the case with some sort of default rule.  A promising one in some areas is to apply what the text appears to say on its face unless there is powerful contrary practice from the relevant time.  Free speech under the First Amendment might be amenable to that approach, for example.  But here it’s far from clear which way that cuts: does the condition imposed in Nollan appear on its face to be a taking of property or not?  I doubt any consensus could be reached.  Alternatively, one could apply a blanket default rule that the government wins (or the claimant wins) absent originalist evidence to the contrary.  But unless this approach is rooted in the founding generation’s own consensus rules of interpretation, this isn’t originalism – it’s judicial restraint, or judicial libertarianism.

Finally, one could say that originalism fails to supply an answer and so leaves resolution to a non-originalist decisionmaking process.  I think this would be the solution pressed by Larry Solum and other originalists who adopt the “interpretation/construction” distinction.  (See also this post by Randy Barnett).  Nollan would, I think, be an example of “construction,” which (they say) isn’t governed by originalism.  (It’s worth noting that Justice Scalia in another context has said that one role of the originalist judge is to reduce originalist directives to practical rules to decide cases, which appears to be a somewhat similar idea).  But at that point it seems we are deciding based on pure policy assessment, something originalism is supposed to avoid.

To be sure, Nollan isn’t any easier a case under non-originalist analysis.  Non-originalists like to claim that their approach doesn’t immediately reduce to pure policy analysis.  Perhaps this is true for some non-originalist approaches some of the time, but I don’t see any non-originalist way to resolve Nollan other than by asking whether the particular decisionmaker thinks it’s a good idea for governments to have the power the Commission asserted.  Originalism, though, is supposed to be attractive because it avoids that problem – and in Nollan, I don’t see how it can.