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44 posts from October 2011


Originalism at the Supreme Court: The Spending Clause and the Affordable Care Act
Michael Ramsey

John Eastman, a dedicated originalist (albeit one with whom I often disagree) points out a brief he filed today on behalf of the Pacific Legal Foundation and the Center for Constitutional Jurisprudence:

In the brief filed this morning, we urge the Supreme Court to go further [than the courts of appeal have gone], striking down not just the individual mandate [of the Affordable Care Act] but the massive expansion in federal spending as well.  … [W]e point out that our nation's Founders never intended to give Congress an unfettered spending power.  James Madison thought the federal tax and spend power was limited by the other powers delegated to the national government, and Alexander Hamilton thought that spending could only be on issues of national concern, not for local or state matters such as health care.

Here is Timothy Sandefur’s description of the brief, at the Pacific Legal Foundation website:

This brief, authored by Chapman University law professor John Eastman, differs from the many others PLF has filed, in that it asks the Court to consider the issues raised under the “Spending Clause” of the Constitution, in addition to the many other constitutional issues raised by these cases. That’s the clause that allows the federal government to “pay the Debts and provide for the common Defence and general Welfare of the United States.” Unfortunately, what often happens is that Congress collects taxes from the nation, and then tells states that they can get that money back, in the form of grants or other favors, only if the state agrees to certain conditions—conditions that often end up abridging state autonomy and expanding federal power. Of course, if the state refuses, it still loses the money. So it’s a heads-I-win, tails-you-lose kind of proposition.

In South Dakota v. Dole, the Supreme Court rejected a state’s challenge to the constitutionality of a federal highway funding program that required the state to change its drinking age. The Court said this was okay, because if the state didn’t like the condition, it was free to refuse the money. But what about the fact that the state still loses the money if it refuses? And what about the many other cases where the money involved isn’t—as in the Dole case—a relatively small amount, but—as in the case of Medicare—a large fraction of the state’s entire budget? “In some circumstances,” the Court admitted, “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.” If that was ever true, it is true here. Yet the Eleventh Circuit rejected the argument of Florida and the other states that the federal government went too far here. Even so, as the PLF/Claremont brief observes, the real focus in these questions should be less on the amount of money involved, than on whether the federal government is using the spending power to get around the constitutional limits on its powers. We hope the Supreme Court will take up not just the question of the Individual Mandate, but also the questions raised under the Spending Clause.

Professor Eastman also has a longer article on the spending clause from a while back.  Here is the abstract:

This article examines the original understanding of the Constitution's Spending Clause (giving Congress the power to tax for the common defense and general welfare) and the competing interpretations of it offered by Alexander Hamilton, on the one hand, and James Madison and Thomas Jefferson, on the other. Madison contended that the Clause's reference to the general welfare was just short-hand for the powers granted elsewhere in Article I, Section 8 of the Constitution, while Hamilton viewed the clause as a stand-alone grant of power. Even Hamilton, though, believed that the power had limits - spending had to be for the general, or national, welfare and not for the welfare of a single state or locale. The article then traces the historical disputes about the constitutionality of internal improvements, from the watershed election of 1800, through presidential veto messages all the way to the eve of the civil war, and finally to the Supreme Court's New Deal-era decision in United States v. Butler, concluding that the blank check interpretation given to the clause since Butler simply cannot be squared with the original understanding of either Hamilton or Madison.

In a different context, I suggested some preliminary thoughts on the spending clause here, which are not necessarily inconsistent with Eastman’s position.

Originalism on the Web
Michael Ramsey

On November 3, Boston University School of Law is holding a Symposium on Jack Balkin’s Living Originalism and David Strauss’ The Living Constitution.  Here is the announcement:

Boston University School of Law is pleased to launch a new series of symposia on significant recent books in law. The distinctive format is to pick two significant recent books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several BU faculty to write an essay on one or the other or both books. We then will publish the pieces in Boston University Law Review.

The first symposium in this series will pair Yale Law School Professor Jack Balkin’s book, Living Originalism (Harvard University Press, 2011), and University of Chicago Law School Professor David Strauss’s recent book, The Living Constitution (Oxford University Press, 2010). Symposium speakers will include Professors Balkin and Strauss as well as BU professors Hugh Baxter, James Fleming, Gary Lawson, David Lyons, Linda McClain, Abby Moncrieff and Larry Yackle.

Of special note is this essay by Gary Lawson: Thoughts from a Deadhead: Dead Originalism and the Dead Constitution.


Originalism on the Web
Michael Ramsey

At NRO, Joel Alicea: Questioning the Supreme Court’s Supremacy.


Originalism on the Web
Michael Ramsey

Wesley J. Campbell in the Stanford Law Review: A New Approach to Nineteenth-Century Religious Exemption Cases.

From the introduction: 

In Employment Division v. Smith (1990), the Supreme Court held that the First Amendment does not afford individuals a right to receive exemptions from neutral and generally applicable laws that incidentally burden their exercise of religion. Although Justice Scalia wrote the majority opinion, the Court’s decision came without any discussion of the original meaning of the Free Exercise Clause. Seven years later, however, Justice O’Connor’s dissenting opinion in City of Boerne v. Flores attacked the Smith holding on originalist grounds, and Justice Scalia responded in kind. After engaging with various founding-era sources, Justice Scalia remarked that “the most telling point made by the dissent” was the lack of early state or federal cases in which the court granted a religious exemption to a neutral and generally applicable statute. Indeed, the dissent provided no account of early religious exemption cases and offered only silence in response to Justice Scalia’s critique of such an omission.

This Note disputes Justice Scalia’s claim that the dearth of successfully litigated nineteenth-century exemption claims reveals a lack of historical support for religious accommodations.  Rather than being “the most telling point,” the absence of exemption decisions reflects historical differences that call into question overly simplistic originalist arguments. In particular, prevailing theological views, skepticism of courtroom declarations, and judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. Understanding these factors also helps explain the apparent erosion of support for religious accommodations in the middle of the nineteenth century. This reinterpretation of the historical record suggests not only that Smith and Boerne may be inconsistent with original meaning but also that an originalist approach to the Free Exercise Clause may not be able to account for shifts in ideas about religious freedom preceding the adoption of the Fourteenth Amendment.


Steve R. Johnson: Supertext and Consistent Meaning
Michael Ramsey

Steve R. Johnson (Florida State University - College of Law) has posted Supertext and Consistent Meaning (State Tax Notes, p. 675, May 25, 2009) on SSRN. Here is the abstract:

Opponents of textualism as an approach to statutory interpretation sometimes deride it as myopic. The textualist, those opponents contend, puts on blinders, narrowing the perhaps vast panorama of possible perspectives on meaning to a narrow slice of the whole. Modern textualists beg to differ. They view that criticism as reductionist and are often quick to distinguish textualism from mere literalism.


Scalia on the Methodology of Originalism
Michael Ramsey

From the Legal History Blog: 

The Institute for Constitutional History, along with The George Washington Law Review, is proud to announce a symposium commemorating the 100th anniversary of Farrand’s Records of the Federal Convention [on November 3-4, 2011].  The keynote address, "The Methodology of Originalism," will be presented by Associate Justice Antonin Scalia of the Supreme Court of the United States.  Panel discussions will feature prominent federal jurists and academics.

Details here.


More on Golan v. Holder
Michael Ramsey

In response to my post on originalist approaches to the Supreme Court's pending free speech cases, Tom Bell writes:

A quick reply to your question, "If you don’t like the originalist approach, is there any way to deal with Golan and Alvarez other than by asking whether the restrictions are good as a policy matter . . . ?"  Yes.  We should interpret the Constitution according to its plain, present, public meaning, and construct it so as to favor of individual rights over government powers.

Both time-tested principles come from the common law of contracts, applied by extension, and together they generate objective and relatively clear answers to constitutional questions.  Just to get the process started, I note that the First Amendment speaks categorically of "no law," a requirement that, while certainly subject to quibbling, suggests very, very broad protections for our freedoms of expression.  As for Golan [v. Holder, the pending copyright case], the copyright clause, properly construed, limits the grant of exclusive rights to the service of promoting progress of the useful arts and sciences.  It does not give lawmakers carte blanche to hand out goodies at the expense of public rights to engage in unoriginal speech.

I don't think Tom and I are all that far apart here, on Golan anyway.  I've noted that in many cases the modern meaning of language is similar to the founding-era meaning; I think in the free speech area that's plausibly true, and the constitutional language appears on its face to be absolute, so that the burden should be on those defending the government action to show founding-era practice in support.  That probably produces parallel results to Tom's approach in many cases (including Golan).  But unless Tom wants to protect all speech (and I bet he doesn't), I'm not sure how he is going to draw the line (even if Golan and Alvarez aren't close to it).

Also on Golan, Nicholas Rosenkranz writes to point out that while the government had initially appeared to defend the law as necessary to implement a treaty (see here), the government seemed to back off from that claim in oral argument:

JUSTICE SCALIA: General Verrilli, I do not find that an appealing argument. It seems to me Congress either had the power to do this under the Copyright Clause or it didn't. I don't think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government. I mean, this is either okay under the copyright clause or it isn't.

GENERAL VERRILLI: We completely -­

JUSTICE SCALIA: It would be nice to know the reason for it, but you would still have to establish that it's within the power of the Federal government -­

GENERAL VERRILLI: We completely agreement [sic] with that, Justice Scalia. There is no textual limit in the Copyright Clause that would preclude Congress from enacting this statute.

Note that Scalia's comment appears to go beyond the immediate case and call into question the holding in Missouri v. Holland that Congress can implement a treaty on matters otherwise not within Congress' enumerated powers.

I say that Scalia's comment goes beyond the immediate case because Golan (unlike Missouri v. Holland) also involves a specific prohibition on Congress: the First Amendment.  Even if Missouri v. Holland is correct that Congress can go beyond its other enumerated powers to implement a treaty, surely Congress can't disregard specific constitutional prohibitions ("Congress shall make no law...") to implement a treaty.  Otherwise, the treaty would in effect amend the Constitution.  But in the comment quoted above Scalia doesn't seem focused on the First Amendment; he's focused on Congress' enumerated powers.  That suggests he's contemplating a frontal assault on Missouri v. Holland (a point raised a while back in this post).

Originalism and the Supreme Court: Two Free Speech Cases
Michael Ramsey

Two cases this term may give the Supreme Court a chance to put some originalism into First Amendment analysis.  Golan v. Holder, argued earlier this month, involves the intersection of the First Amendment and copyright law; United States v. Alvarez, which the Court will hear later this term, involves the federal Stolen Valor Act, criminalizing false statements about military service.

Last term Justice Thomas made an attempt to bring originalism to bear on the First Amendment in Brown v. Entertainment Merchants Association (the violent video games case), although as noted here I think he used unpersuasive sources.  But his basic approach seems right, as suggested by Eugene Volokh in this post: (a) the First Amendment appears absolute on its face (“Congress shall make no law…”), but (b) it appears that in the founding era restricting certain categories of speech was uncontroversially understood not to “abridge[ ] the freedom of speech” within the meaning of the amendment.  This basic idea underlies modern free speech doctrine’s categorical approach to “unprotected” or “low value” speech – obscenity, incitement, threats, fighting words, etc.  The problem, from an originalist perspective, is that the categorical definitions have become unmoored from history and now amount to little more than policy intuitions.  So if we don’t like a certain kind of speech, we say it’s “low value” because, well, we don’t like it.

Justice Thomas tried to do something about this unmooring in the video games case by attempting to connect speech restrictions he wanted to allow (on speech to children) with restrictions that existed in the founding era.  I don’t think he was at all persuasive, but the broader approach seems right (in an originalist sense), and Golan and Alvarez offer a chance to confirm it.

Conceptually Golan ought to be the easiest of the two.  The First Amendment surely wasn’t meant to overrule the copyright clause of Article I, Section 8; the two exist harmoniously under the principle outlined above.  Copyright was a traditional area of speech regulation, existing in the founding area and widely accepted, that wasn’t understood to “abridge[]” the “freedom of speech.”  But that’s true only of copyright law as it was understood in the founding era.  Congress can’t end-run the First Amendment by calling a new kind of regulation “copyright” if it exceeds what copyright was then understood to encompass.  This seems roughly to be how the argument has been made in Golan – the question is framed as whether the extension of copyright law challenged in Golan exceeds the traditional bounds of copyright law.  That is, I think, roughly the way an originalist should think about it (with the further implication that if the law does exceed traditional bounds of copyright, it violates the First Amendment).

This analysis ought to carry over to Alvarez as well.  The question is whether intentional false statements can be restricted.  The Court has said that there’s no value in a false statement of fact, but that idea usually comes from contexts in which there is a traditional harm and a traditional background of regulation – libel, fraud, and the like.  These categories are subject to regulation despite the First Amendment under the analysis set forth above.  But that assessment doesn’t necessarily apply to other sorts of false statements, such as exaggerating one’s military record.  Originalist analysis should ask whether analogous statements were punished without controversy in the founding era.  I don’t know the answer, but at least I think I (sort of) know the question.

Note too that these cases highlight the challenge for nonoriginalist analysis.  If you don’t like the originalist approach, is there any way to deal with Golan and Alvarez other than by asking whether the restrictions are good as a policy matter (as in this post on the 9th Circuit's initial ruling in Alvarez, by my colleague Shaun Martin)?  Precedent seems inconclusive.  Judicial restraint might uphold both restrictions, but unless one favors taking the courts out of the First Amendment picture altogether, at some point adherents of judicial restraint would need to explain when they would intervene and why.  A nonoriginalist decision on either side could be dressed up by appeal to constitutional values of ill-defined origin, scope and application, but it’s hard to see the debate ultimately being any more than (1) “These sorts of rules are good policy” and (2) “No they aren’t.”  Of course, one might favor a Supreme Court that decides in this manner, but it should be defended squarely on that understanding.

Originalism in the Blogs
Michael Ramsey

At Reason.com, Damon W. Root: "Strictly obeying the original meaning of the Constitution can lead Justice Thomas to liberal results"

On Thomas, Lincoln Caplan and stare decisis:

Writing in The New York Times, Lincoln Caplan topped off a laundry list of Thomas’ alleged judicial sins by pointing out “the most extreme part of Justice Thomas’s record,” his lack of respect for Supreme Court precedent:

Even to conservatives like Justice Scalia — an originalist, claiming to interpret the Constitution as the framers understood it — stare decisis, or following legal precedents, is integral to Supreme Court law. In guiding the court, that principle favors gradual over sweeping change. It is indispensable in assuring court rulings that are not whims of politics.

That’s not the Thomas approach. In pushing the court to reconsider what he has called “wrong turns” in the law, he has argued that “the ultimate precedent is the Constitution.”

There’s certainly a case to be made for stare decisis, but let’s not pretend Thomas is the only one who disregards precedent when it conflicts with his interpretation of the Constitution. Respect for precedent, after all, would have had the Supreme Court follow its 1986 ruling in Bowers v. Hardwick and uphold Texas’ notorious ban on gay sex in 2003’s Lawrence v. Texas. Or does Caplan think Thomas’ dissenting vote in Lawrence was correct because he followed precedent in that instance?


Jeffrey Shulman: Originalism and the Religion Clauses
Michael Ramsey

Jeffrey Shulman (Georgetown University Law Center) has posted The Siren Song of History: Originalism and the Religion Clauses (Journal of Law and Religion, Forthcoming) on SSRN. Here is the abstract:

This essay reviews the following works:

The Forgotten Founders on Religion and Public Life. Edited by Daniel L. Dreisbach, Mark David Hall and Jeffrey H. Morrison. Foreword by Mark A. Noll. University of Notre Dame Press 2009. Pp. 316. ISBN: 0-268-02602-5;

Church, State, and Original Intent. By Donald L. Drakeman. Cambridge University Press 2010. Pp. 371. ISBN: 0-521-11918-9; and

God and the Founders: Madison, Washington, and Jefferson. By Vincent Phillip Muñoz. Cambridge University Press 2009. Pp. 242. ISBN: 0-521-51515-7.