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42 posts from December 2011


Kurt Lash Replies to Barnett on Chisholm and the 11th Amendment
Michael Ramsey

Yesterday I noted Randy Barnett’s post on Pauline Maier’s book Ratification, in which Professor Barnett  offered an interesting take on the book's implications for the debate over state sovereign immunity.  Kurt Lash writes in response:

I agree with Randy about the wonderful historical story Maier has penned.  …  On the other hand, Randy's comment about Maier's book segues into a critique of scholars who claim the 11th Amendment represents the restoration of the original understanding of Article III.  ...  Here, I think Randy has misread both works like mine and the significance of Maier's book.  Accordingly, I dropped the following into the comments [here] for Randy's recent post:

Maier has indeed written a wonderful book. I am not sure, though, that its evidence cuts the way Randy suggests.

No one (that I know) believes that it matters whether the federalists knew what was being argued in the other state conventions. On the other hand, common explanations of the Constitution and its fundamental principles would be quite relevant to determining the likely understanding of those who embraced the document. Here, Maier points out that the basic arguments, pro and con, were established early in the debates. After the early heavy-handed actions of James Wilson and the Federalists in Pa. threatened to taint the entire ratification effort (wonderfully detailed by Maier), the Federalists across the remaining conventions uniformly presented the document as preserving the sovereign status of the states. As Marshall explained in the Va. convention (and as Hamilton repeated the next day in Fed. 81), Article III should (and would) be read in a manner preserving the sovereignty of the states and would leave the states as immune from unconsented suits for damages by individuals as the federal government itself.

The preserved sovereign status of the states was not presented as an “expected application.” It was presented as a bedrock principle (or “framework principle as Jack Balkin might call it) of the proposed Constitution. One can argue whether we should care about the likely understanding of the ratifiers, but there is no doubt about how the document was presented, or whether it would have been rejected had the post-Pa. conventions believed the document, properly read, erased state sovereignty. Nothing in Maier’s book suggests otherwise.

Professor Lash’s outstanding work on the historical evidence in support of reading the Eleventh Amendment as declarative of original understanding is Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction, 50 William and Mary L. Rev. 1577 (2009) (available here).

Professor Barnett has a brief reply here:

I do not really disagree with much of what my friend Kurt Lash posts above. I was not claiming that Maier’s book says much about whether Chisholm was correctly decided. And it does highlight that state sovereignty was an important principle throughout the ratification process. My point was a narrower one with which Kurt appears to agree. What Federalists in the Virginia like Madison and Marshall may have said in about the preservation of state sovereign immunity in response to the Antifederalist reading of what at least appears to be the plain meaning of Article III did not “fix,” liquidate or affect in any way the public meaning of Article III from what it would otherwise be, although it may be evidence of that meaning. On the other hand the Antifederalist skepticism of that claim is also evidence of what the words of Article III meant to a normal reader. I do think some originalists have suggested that we are bound by a meaning suggested by Federalist proponents of the Constitution that fixes or liquidates an otherwise vague meaning or, as I put it, provides a “gloss” on that meaning. I was not making a claim about whether lots of talk about state sovereignty in lots of conventions might signify that the public meaning of Article III silently assumed the preservation of the underlying principle of sovereign immunity for states akin to federal sovereign immunity. Perhaps it did. While I agree that there is nothing in the Maier book that undercuts such a claim, neither did I read anything that lent it strong support.


Randy Barnett on Pauline Maier’s Ratification
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has a long post: Pauline Maier’s Marvelous Book, “Ratification”.

From his introduction:

Maier, a historian at MIT, has written the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments. …  It is a riveting story, engagingly told.  …

The story is also told in an extraordinarily fair and balanced way. …  So far as I could tell, Maier’s treatment is as “neutral” or “objective” as is possible for a scholar to be, unfashionable as those terms may be among academics.   It just seems like she is telling the story as it unfolded, letting each character speak for him or herself, while dispassionately presenting the various strengths and weaknesses of each. I got little or no sense of whose side she may or may not be on, or who she liked or disliked.

I’ve read Ratification and I agree with this assessment.  It’s a great book without an obvious agenda.  Professor Barnett also makes these interesting observations relating the book to originalist theory:

Given my views on originalism, some may wonder what implications Maier’s book has for original meaning interpretation.  I can think of one: this work undercuts claims by some originalists that, where the general public meaning of the text is vague, the ratification debates clarify that meaning by rendering it more specific. For example, some cite the Virginia ratification debates in which the Federalist defenders of the Constitution denied that states could be sued by citizens of another state in federal court as Article III appears clearly to authorize. The claim is that vague original meaning was “fixed” by the views that supporters of the Constitution offered to clarify meaning.  For example,the claim is made that that debates in Virginia support the conclusion that Chisholm v. Georgia, which rejected Georgia’s claim of sovereign immunity from citizen suits, was wrongly decided and that the Eleventh Amendment reversing that holding restored the original meaning. The alternative view is that the Constitution’s text did authorize such suits (though this may or may not have been an oversight), and once the Supreme Court correctly so held, Congress and the states revised the Constitution’s text to eliminate this federal jurisdiction over states.  (I have written about Chisholm here.)

Maier’s narrative makes it abundantly clear that few outside the walls of any convention would have been aware of any statements by the Constitution’s supporters, and convention delegates in one state knew very little about what transpired in the others. Although convention statements both for and against the Constitution are evidence of original public meaning, public statements by Federalist supporters cannot provide a definitive gloss on that meaning.  To the contrary, the very fact that the Antifederalists read the provisions in Article III this way, which then required an extra-textual admission of sovereign immunity by the Constitution’s supporters, is some evidence that the Supreme Court in Chisholm was right about the public meaning of the text.

Ratification: The People Debate the Constitution, 1787-88 is available from Amazon here.  


Henry Holzer: The Supreme Court Opinions of Clarence Thomas, 1991-2011
Michael Ramsey

At his website, Henry Holzer notes that his book The Supreme Court Opinions of Clarence Thomas, 1991-2011, will be published by McFarland Publishing in early 2012.  (Pre-order from Amazon here).

From the publisher’s description

In his twenty terms as an associate justice of the Supreme Court of the United States, Clarence Thomas has written nearly 450 opinions. Although they are readily available to the American people, much of the public continues to base its view of Thomas merely on reporting of the media. This analysis of Thomas’s most important majority, concurring, and dissenting opinions offers laypersons and legal professionals alike the opportunity to understand in his own words Thomas’s approach to constitutional decision-making and his understanding of the most important provisions of the Constitution. Thomas’s opinions, this work shows, reveal his consistent adherence to the core principles of federalism, separation of powers, and restrained judicial review, and to the regard for individual rights and limited government embodied by the Founders in the Constitution.

Note: this is an update of Professor Holzer’s book The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative’s Perspective.

Thanks to Bob Gaglione for the pointer.


Hannibal Travis: On the Original Understanding of the Crime of Genocide
Michael Ramsey

Hannibal Travis (Florida International University College of Law) has posted On the Original Understanding of the Crime of Genocide on SSRN. Here is the abstract:

This article is an extended exercise in "genocide originalism." To wit, some leading genocide scholars have propounded a purportedly “legal” definition that is unduly narrow. Purportedly based on the drafting history of the Genocide Convention, this narrow definition actually rests upon incomplete and selective references to legal sources. This narrow definition also has important effects on debates concerning whether partial genocides, such as by “ethnic cleansing,” may constitute the crime of genocide. 

In this article, I survey evidence that the drafters and ratifiers of the Genocide Convention did not adopt a requirement of genocidal intent that would be nearly impossible to satisfy, namely an intent to totally destroy a race. Efforts to equate genocidal intent with total racial destruction have been disturbingly common within the United Nations system over the past decade, including in the findings of International Court of Justice (ICJ) on genocide in Bosnia and Herzegovina, of the International Commission of Inquiry on Darfur (ICID) on genocide in western Sudan and eastern Chad, and of the trial chamber of the U.N.-backed International Criminal Court (ICC) on genocide in Darfur. At the root of this misunderstanding is the equation of the intent to destroy a group required by Article II of the Genocide Convention with a deliberate plan or policy of a state to exterminate the members of an entire racial group, or a total genocide. Contrary to this distortion of the Convention, its drafters rejected efforts to limit genocide to total destruction, a plan or policy of destruction, or a motive of racial hatred. This article contends that the original understanding of the crime of genocide did not require a total genocide, and that this original understanding is reflected in the text of the Genocide Convention, the *travaux preparatoires*, and the course of performance of the treaty by the United Nations and its member states.

The originalism debate is usually associated with constitutional interpretation (especially U.S. constitutional interpretation) but of course there are wider implications.  As this article suggests, a less-well-known debate involves whether treaties should be given evolving or original meaning.  It's interesting to consider the extent to which constitutional originalist arguments do or don't carry over into treaty interpretation.


More on Gingrich and the Courts
Michael Ramsey

In the Washington Post, George Will on Gingrich, the Anti-Conservative:

He is the first presidential candidate to propose a thorough assault on the rule of law. That is the meaning of his vow to break courts to the saddle of politicians, particularly to members of Congress, who rarely even read the laws they pass.


Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich’s campaign against courts repudiates contemporary conservatism’s core commitment to limited government.

Logically, Gingrich should regret the dictatorial Supreme Court decisions that have stymied congressional majorities by overturning portions of the McCain-Feingold campaign finance legislation and other restrictions on political speech.

Logic, however, is a flimsy leash for a mind as protean as Gingrich’s, which applauds those decisions — and the Kelo decision. In Kelo, the court eschewed dictatorship and deferred to the New London, Conn., City Council majority that imposed a stunning abuse of eminent domain. Conservatives were appalled; Gingrich, inexplicably but conveniently, says he is, too.

Meanwhile, Curt Levey defends Gingrich in the Wall Street Journal: Gingrich vs. Judicial Activism.

Like any plan designed to adjust the constitutional balance of power, Mr. Gingrich's ideas for judicial reform raise a variety of intriguing constitutional questions. Though his freewheeling style adds to the focus on such questions, we should not lose sight of the plan's valuable contribution to the debate on the courts.

Among those contributions is a clear identification of the problem: "The power of the American judiciary has increased exponentially at the expense of elected representatives" such that "the Supreme Court has become a permanent constitutional convention." Mr. Gingrich understands that "judicial supremacy only survives due to the passivity of the executive and legislative branches." He acknowledges the importance of an independent judiciary but points out that "judicial independence does not mean . . . judges can never be held accountable for their judgments . . . however extreme and unfounded."


Alfred Brophy on Calabresi and Rickert: Non-Originalist Originalists
Michael Ramsey

At the Texas Law Review’s online journal See Also, Alfred L. Brophy comments on Calabresi and Rickert’s Originalism and Sex Discrimination: Non-Originalist Originalists: The Nineteenth Amendment and the Fourteenth Amendment’s Anticaste Principle.

(Thanks to Stephen Fraser, Texas Law Review Online Content Editor, for the pointer.)


Originalism and Sex Discrimination VI: Originalism, Nonoriginalism, and the (Possible) Failure of the Constitution to Protect Against Sex Based Distinctions
Mike Rappaport

In their response to Ed Whelan, Calabresi and Rickert suggest part of their motivation for their article concluding that the original meaning of the 14th Amendment, as modified by the 19th Amendment, prohibits sex discrimination:

One of the principal criticisms of originalism that has been levied in recent years by Richard Posner, Cass Sunstein, and Jack Balkin and many others is that Scalia-style originalism cannot explain the extension in the 1970’s of the Equal Protection Clause to ban sex discrimination.  The best that originalists allegedly can do is to promise not to overrule sex discrimination cases that under originalism were wrongly decided in the first place. 

 (emphasis added).  One question here is what Calabresi and Rickert mean by “explain.”  By explain, they could mean to describe what happened.  But if that were their meaning, originalists might have a simple explanation (assuming originalists believed that the 14th Amendment did not prohibit sex based distinctions): The extension in the 1970s of the Equal Protection Clause was effected by nonoriginalist judges who sought to write their own values into the Constitution.

Rather, Calabresi and Rickert seem to mean that originalists cannot “justify” the extension of the 14th Amendment to sex based distinctions.  Why that is a problem is not entirely clear, but one can guess that Calabresi and Rickert believe that this is a popular and attractive interpretation of the Constitution and therefore it hurts originalism that it cannot justify that interpretation.

I want to argue here that, if Calabresi and Rickert believe this, they have it all wrong.  If the original meaning of the Constitution does not protect against sex discrimination, it is not the fault of originalism.  Instead, it is the fault of nonoriginalism

The reason is that there seems little doubt that an equal rights amendment would have passed in the 1970s if not for nonoriginalism.   In the 1970s, support for a prohibition on sex discrimination grew significantly and it looked like an equal rights amendment was going to pass.  Yet, it didn’t.  Although the Amendment secured the vote of thirty-five of the thirty-eight states required for ratification, it ultimately failed.  At least two factors contributed to its failure. 

First, during the period when the Amendment was being considered, the Supreme Court decided cases that applied a heightened scrutiny standard to gender under the Equal Protection Clause.  These cases, which (by hypothesis) departed from the original meaning, reduced the need for an equal rights amendment, since judges had now judicially amended the Constitution to provide for a similar result.  For more on this, see here.

Second, the willingness of the Warren and Burger Courts to depart from originalism was also an important cause for the failure of the Equal Rights Amendment.  Many feared the Amendment would be interpreted broadly to require unpopular measures and impose a more radical vision of sexual equality than was shared by its enactors.  For instance, many people feared that the Amendment might be twisted to mandate same-sex bathrooms and to eliminate the exclusion of women from combat.  Given the history of the judicial activism prior to the proposed ERA, citizens could not be confident that the Court would have interpreted the Amendment’s general language according to the meaning its enactors claimed to attach to it.  By not enforcing the Constitution according to the original understanding of its terms, the Court reduced the effectiveness of the constitutional amendment process generally.

In short, had the Justices not already updated the Constitution and had it been clear that the Amendment would not be creatively interpreted, it is likely that an equal rights amendment would have been enacted—either the version containing the general language passed by Congress or one with more specific limitations that might have been subsequently enacted.

Thus, the failure of modern values concerning sex discrimination to be placed in the Constitution is the result of nonoriginalism, not of any failing of originalism.  It is nonoriginalists who should be embarrassed by this situation, not originalists.

Lawrence Friedman: The Once and Future Constitutional Law
Michael Ramsey

Lawrence Friedman (New England School of Law) has posted The Once and Future Constitutional Law: On the Law of American State Constitutions (Albany Law Review, Vol. 74, No. 4, p. 1671, 2010/2011) on SSRN. Here is the abstract:

Since its publication, Robert F. Williams’ book, The Law of American State Constitutions, has attracted a great deal of positive attention, with commentators praising many of its varied contributions to our understanding of state constitutional law. In particular, reviewers have focused on Williams’ treatment of the origins, evolution, and methodology of the New Judicial Federalism. The story of the New Judicial Federalism is one worth telling, and I address some of Williams’ conclusions about its significance in this review, as well as his consideration of state constitutional interpretation outside of the individual rights context -- when recourse to federal doctrinal concepts may not be an option. I focus on Williams’ discussion of judicial construction of structural provisions that guide the process of political decision-making, an issue without parallel under the U.S. Constitution. I then return to the subject of rights interpretation by state courts operating in constitutional space dominated by the Supreme Court, examining the value of independent state constitutionalism in light of Erwin Chemerinsky’s argument that state constitutions are “a second-best alternative for advancing liberty and equality.”


Originalism in the Blogs
Michael Ramsey

At NRO, more on Gingrich and the courts: 

Andrew McCarthy: Gingrich and the Courts: Time to rein in the imperial judiciary

Ed Whelan: In Partial Defense of Newt Gingrich.


Arizona v. United States and Executive Policy Preemption
Michael Ramsey

Regarding my prior post on Arizona v. United States, reader Brett Bellmore comments: 

[T]he complication here is that there's this huge disconnect between federal law and federal policy when it comes to immigration. The law is popular, the policy not. So Congress can't bring the two into agreement by changing the law. OTOH, the policy is popular with major campaign contributors, so the President won't bring the two into agreement by changing the policy, and Congress won't force him to.

Because the law is popular, and the policy is to not enforce it, the states attempt to bolster it by writing laws which, far from conflicting with federal law, actually support that law. And the federal government objects because this conflicts with the policy. If they were actually concerned with the supremacy of federal law, it's the sanctuary cities they'd be going after, not Arizona.

So, IMO, what this case really boils down to is a test of whether the supremacy clause applies to federal law, or federal policy, when the two disagree. Or rather, which the Court is going to apply the clause to, because we both know which of those words is actually in the supremacy clause.

I think that’s a fair point, to the extent the argument against the Arizona law is that it conflicts with the President’s approach to enforcing federal law, rather than that it conflicts with federal law itself.  (I haven’t studied the laws closely, but my impression is that in the lower courts the Obama administration put a good bit of weight on the President’s policy). 

First, consider a situation in which there is no federal law, only executive policy.  My view (detailed here) is that as an original matter presidential policies have no power to displace conflicting state law under Article VI: the supremacy clause refers only to law; the executive is not a lawmaker; and it’s an aspect of separation of powers that if the President doesn’t like a state law, he has to go to Congress to get rid of it.  Unfortunately the Supreme Court has been of (at least) two minds on the subject.  In American Insurance Association v. Garamendi in 2003 the Court appeared to hold that a presidential policy in favor of settling Holocaust-era insurance claims (for a fraction of their value) preempted a California law favoring litigation of the claims.  (Justices Scalia and Thomas joined the dissent).  More recently, in Medellin v. Texas, the Court held that a presidential policy of complying with a judgment of the International Court of Justice did not preempt a Texas state law in conflict with the ICJ's ruling.  Chief Justice Roberts, writing for the majority, quoted Justice Black's opinion in the Steel Seizure case ("the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker") and Madison's Federalist 47 ("The magistrate in whom the whole executive power resides cannot of himself make a law").  The basic point is that overriding state law is a legislative act, requiring an act of Congress (or a self-executing treaty).  Medellin had it exactly right on this point, I think, and substantially narrowed the implications of the Garamendi case. 

(For those with interest in this line of cases, the Ninth Circuit last week reheard en banc a closely related issue: the question is whether the President’s policy of not referring to the destruction of the Armenian community in Turkey as a “genocide” preempts a California state law that calls it genocide.  More here, including video, from Roger Alford at Opinio Juris.  My position on the case as an original matter should be obvious; it's outlined here.) 

The Arizona case is more difficult, though, because – unlike in Garamendi and Medellin – a federal statute is involved.  If the purpose of the federal statute is to give the President substantial flexibility and discretion in enforcement, then the state’s less-flexible approach likely does conflict with federal law and so is preempted.  The analogy would not be to Medellin but rather to Crosby v. National Foreign Trade Council.  In Crosby, a federal statute gave the President discretion in imposing sanctions on the Burmese government; the Court (rightly, I think) concluded that this law preempted a Massachusetts law imposing less flexible sanctions. 

But I’m not aware of language in the federal laws at issue in the Arizona case that gives the President enforcement discretion, in the sense that the law did in Crosby.  Rather, although I haven’t studied them closely, they seem not to contemplate flexibility in enforcement.  If that’s right, then as a general matter the state’s program to enforce them strictly doesn’t conflict with the federal laws themselves, only with the President’s policies.  And if that’s right, then the case is more like Medellin than Crosby.  Again, presidential policies not reflected in a federal statute shouldn’t displace state law, because per Article VI only superior law prevails over state law.  Of course, if particular aspects of the Arizona law conflict with federal law then they should be preempted.  And if this analysis is correct, the key to the Arizona case is (or should be) assessing what parts of the state law actually conflict with text and purpose of the federal law and what aspects are objectionable only because they interfere with the President's approach to the law.