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42 posts from December 2011


Justice Jackson's Concurrence in the Steel Seizure Case
Mike Rappaport

Mike Ramsey links to this post by Stephen Griffin on his new book on Foreign Affairs.  Stephen criticizes Justice Jackson's famous concurrence:

Students of debates over presidential power know this relates to Justice Jackson’s concurring (now controlling) opinion in the Steel Seizure case. Jackson specifically rejected the vesting clause thesis and assumed that founding era debates such as the Pacificus-Helvidius clash showed that it was fruitless to rely on historical evidence to resolve separation of powers problems. But Jackson did not consider the narrower possibility that the vesting clause underwrote presidential power with respect to foreign policy. And he was simply too quick in concluding that the Pacificus-Helvidius debate was a wash. The belief that the Pacificus-Helvidius debate showed deep divisions among the framers as to presidential power in foreign affairs, including the war power, has been one of the main stumbling blocks preventing scholars from seeing that there was a univocal founding era judgment that only Congress could commence “war.” Ramsey and Casto have shown that careful scholarship can improve our knowledge of the past even with respect to texts that have long been available and discussed for decades.

I regard Jackson's opinion as a strong contender for the most overrated Supreme Court opinion of all time.  And due in part to the power of the scholarship of my co-blogger, Mike Ramsey, and my former colleage Sai Prakash, more people are coming to view Jackson's opinion as problematic.

That said, I should note that part of the reasons I think Jackson viewed the Vesting Clause so negatively is that the government and the dissent in Youngstown so overstated the authority the Clause conferred on the President.  Both Mike Ramsey and I agree (and I assume Sai Prakash as well) with the majority in Youngstown that the President's action was unconstitutional and not justified by the Vesting Clause.

Originalism on the Web
Michael Ramsey

Ari Ezra Waldman: Antonin Scalia, Textualism, and What's Next for Prop 8.


Originalism and Sex Discrimination V: Jack Balkin, Original Methods, and Expected Applications
Mike Rappaport

Let me now turn to an interesting aspect of Calabaresi and Rickert’s argument where they employ original methods originalism and Jack Balkin’s criticism of that aspect of their argument. 

In their paper, Calabresi and Rickert say they are employing original methods originalism – the interpretive method that John McGinnis and I have developed.  See here.  Under this method, an interpreter employs the interpretive rules that people at the time of a provision’s enactment would have employed to interpret it.  Calabresi and Rickert argue that one interpretive method at that time was to employ analogy. 

Jack Balkin summarizes their argument:

Calabresi and Rickert agree with McGinnis and Rappaport that we should use the same original interpretive methods that lawyers used in 1868 when the 14th amendment was adopted. The original interpretive methods allowed judges to reason from existing cases by analogy. If we apply these original legal methods today, and do not make the factual mistakes of the framers and adopters, we will see that the case of sex discrimination is analogous to that of race discrimination; therefore the principles against caste and class legislation apply to government action that discriminates against women.

Calabresi and Rickert’s argument here is interesting.  I had not previously thought of the use of analogy as an interpretive method, but upon reflection there is no reason to doubt that it is.  If this method was widely employ at the time, then I would agree it should be employed.  Additionally, if this method was widely employed, it would supply another means for interpreters to resolve ambiguity or vagueness (an important point worthy of discussion in another post sometime).

Balkin criticizes Calabresi and Rickert’s argument.  He writes:

 A similar problem arises when Calabresi and Rickert argue that we should use original interpretive methods to show that sex discrimination was unconstitutional in 1868, citing John McGinnis and Michael Rappaport’s theory of original methods originalism. Calabresi and Rickert argue that reasoning by analogy was a well accepted method used by lawyers in 1868. If we reason by analogy to race discrimination, we see that discrimination against women was also unconstitutional.

But this is not what McGinnis and Rappaport mean by “original interpretive methods.” Their point is that we should ask how lawyers at the time of adoption would have used these methods to decide the most likely interpretation of the text. That is, the legal meaning of the text is the most likely interpretation that lawyers would have settled on at the time of adoption. And if well-trained lawyers would have assumed that the coverture rules were likely constitutional, then that is the legal meaning of the text. What we are not permitted to do is to apply original legal methods today, using our contemporary judgments about values. For if we do that, then we are delegating controversial value choices to contemporary decisionmakers, including contemporary judges. And this is what conservative originalists generally want to avoid.

Drawing analogies today between the Black Codes and laws discriminating against women is not simply a matter of reasoning about similar facts. Arguments from analogy usually involve (or smuggle in) a wide range of normative assumptions. In law things are similar or different in light of particular purposes or normative judgments. So even if we today think that the cases of race and sex discrimination are analogous, that does not mean that most well trained lawyers at the time of adoption would agree with us.

Applying McGinnis and Rappaport’s approach, the most likely interpretation in 1868 would probably be that coverture rules were consistent with the proposed amendment’s legal meaning.

 (emphasis added).  Analyzing Balkin’s argument involves employing an important distinction.  The distinction is between determining the existence of the interpretive rules at the time and applying those rules in particular cases.

Original methods requires that the interpreter employ the interpretive rules as they would have been understood at the time.  But in doing this, original methods does not require that the interpreter automatically apply those rules in particular cases as interpreters at the time would have.  The interpretive rules stand apart from how they would have been employed in particular cases.

Of course, how people at the time would have applied the interpretive rules in particular cases may illuminate how those rules applied in general.  But, in my view, it is only the general interpretive rules that are binding, not the particular applications.  Put differently, it is possible that the people at the time could have made mistakes about how the interpretive rules at the time applied in particular cases.   

But that is not the end of the story.  McGinnis and I also have views about the relevance of expected applications.  Ultimately, the use of expected applications is determined by the original interpretive rules.  Let us assume that there was no interpretive rule at the time that expected applications were binding.  Then, I would argue that the expected applications often provide useful information about the binding aspects of interpretation – for example, about the interpretive rules that would apply in this context and about the meaning of terms.  The expected applications would be evidence of the binding aspects of interpretation, but would not be binding themselves.   

Where, then, does this analysis get us?  Let us assume that there was an interpretive rule to employ analogies.  Then, it would be proper for a modern interpreter to employ that rule.  Now, assume that most people would not have analogized sex discrimination to race discrimination.  Then, a modern interpreter would not be bound by that expected application, but should take it seriously as evidence of the interpretive rules (such as analogy) and of the meaning of the terms (such as equal protection).  One should consider whether the reason the people at the time would not have applied the analogy is that caste was understood as involving hereditary matters not implicating sex distinctions (as I discussed previously) rather than as involving mistaken factual claims about sex based distinctions.  But if the modern interpreter concludes, based on legitimate reasons and adequate evidence, that these other considerations do not prevail and that people at the time simply were making a factual mistake, I don’t believe that original methods would find any problem with their argument.  Thus, if Calabresi and Rickert believe that these other considerations should not prevail, and one accepts their arguments, then original methods would not stand in the way of their argument.  

Originalism on the Web
Michael Ramsey

Rob Natelson: Original intent? Understanding? Meaning?


Originalism and Sex Discrimination IV: Jack Balkin, Public Meaning, and Expected Applications
Mike Rappaport

My last two posts have critically examined Calabresi and Rickert’s argument.  Now, for a brief interlude, let me defend them in this and the next post against Jack Balkin’s criticisms

Balkin criticizes Calabresi and Rickert on the ground that their understanding of the 14th Amendment – either privileges or immunities, or equal protection – as prohibiting caste legislation is not part of the original meaning, but merely an expected application of framers. Balkin writes:

Calabresi and Rickert treat the principles against caste and class legislation as part of the original meaning of the text, even though the principles they discover cannot be found in the text itself and do not follow from its semantic meaning. They seek to show that these principles are part of the original public meaning by looking at initial constructions of the text and statements of principle and purpose offered by framers and adopters. Nevertheless, they insist that they are not interested in original intentions or original understandings for their own sake, but rather are interested in the objective public meaning of the text.

First, original meaning should generally be limited to original semantic meaning, including any generally recognized terms of art. Underlying principles are not part of original semantic meaning. They are constructions. They are ways of fleshing out and implementing the principles that we find in the text. They are principles that we ascribe to the text in order to make sense of it and apply it in practice.

I believe this is mistaken.  If one, let’s say, reads the Equal Protection Clause as protecting equality, that is certainly text based.  Now, one must understand what equality means.  One of the semantic meanings at the time, as illustrated by the public debate that Calabresi and Rickert discuss, would certainly have included a bar on caste legislation.  So it would seem that “no caste legislation” is one semantic meaning of equality.

If I understand him correctly, Balkin appears to dispute this on the ground that a prohibition on caste legislation is merely one of the meanings of equality.  And, for Balkin, a choice between those meanings is construction, not original meaning:

Second, the statements of principle and purpose that were made contemporaneous with adoption of an amendment are the initial constructions of the amendment; they are a form of original expected applications, and they are not binding on us today.

But from the perspective of original methods originalism, which Calabresi and Rickert say they are employing, this is probably not true.  If one has an ambiguous provision, then one of the traditional methods used for resolving that ambiguity is to look to the purposes of a provision – not as revealed in legislative history as a matter of intent, but as inferred from looking at the circumstances of the legislation and the public values of the time.  I believe that Calabresi and Rickert can be interpreted as making this argument implicitly.

While Calabresi and Rickert have offered their own response to Balkin, I believe that original methods originalism helps to rebut the criticism that a prohibition on caste legislation is, in their argument, merely a construction or expected application of the Fourteenth Amendment.  

Originalism in the Blogs: Ed Whelen and Matthew Franck on Newt Gingrich's Idea of Abolishing Judgeships
Michael Ramsey

At NRO, Ed Whelan and Matthew Franck on candidate Newt Gingrich’s suggestion that unrestrained judges can be dealt with by eliminating their offices:  Gingrich’s Awful Proposal to Abolish Judgeships, part 1; part 2; part 3; part 4.

Gingrich's proposal is set forth and defended in this extensive (54 pages), wide-ranging and very substantive campaign document.  Among other things, it says:

First, the executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions.

Second, when appropriate, the executive and legislative branches can use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional. An outline of some of these constitutional steps is outlined elsewhere in this paper.

Third, the executive and legislative branches should employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.

A Gingrich administration will undertake each of these steps.

On the specific point at issue, the document notes:

During the administration of Thomas Jefferson, the legislative and executive branches worked together to abolish over half of all federal judgeships (18 of 35). While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances, those who care about the rule of law can be relied upon to consider whatever constitutionally permissibly tools they can find to fight federal judges and courts exceeding their powers. It is one of many possibilities to check and balance the judiciary.

Whelan and Franck are, to put it mildly, not persuaded.  Concluding thought from Matthew Franck:

If the Congress’s treatment of the 1801 circuit judges was constitutionally wrong, then Gingrich is constitutionally wrong.  But if what Congress did in 1802 was constitutionally legitimate, Gingrich is still wrong, because what was done then is not a precedent for what he is considering doing now.


Originalism in the Blogs
Michael Ramsey

Paul Kirgis: Originalism, Arbitration, and the Civil Jury.

Calabresi and Rickert Respond to Balkin
Mike Rappaport

As I noted previously, Jack Balkin wrote a critique of Calabresi and Rickert's new article.  They now respond on Balkinization.  Here is an excerpt:

Balkin argues that the idea that the Fourteenth Amendment’s ban on caste or class legislation is only an original expected application of the Fourteenth Amendment and is not part of its core semantic meaning. Since Balkin does not believe that original expected applications are law—a claim we agree with—Balkin also does not think the Fourteenth Amendment’s ban on caste or class legislation is constitutionalized. This is a surprising criticism from Balkin, who wrote in his article Abortion and Original Meaning that “laws criminalizing abortion violate the Fourteenth Amendment’s principle of equal citizenship and its prohibition against class legislation” and “[f]idelity to the Constitution as law means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.” But we will respond to his more recent claim that our anti-caste/anti-class legislation reading of the Fourteenth Amendment is merely a construction that can be altered by future generations engaged in constitutional politics. Balkin thus believes that the States could constitutionally go back to the era of Jim Crow segregation or of widespread violation of the civil rights of women without violating the semantic meaning of the Fourteenth Amendment. This is a chilling and breath-taking claim. All that stands between us and Jim Crow or widespread sex discrimination is the opinion of contemporary political elites.

(Emphasis added).  I will be continuing my posts on Calabresi and Rickert (and will also discuss Balkin) next week.


Stephen Griffin on War Powers
Michael Ramsey

At Balkinization, Stephen Griffin begins a series of guest posts based on his forthcoming war powers book:  How to Think About War Powers, Pt. 1.

Professor Griffin's book is, I take it, not mainly originalist, but his opening post has some discussion of original meaning, and includes some kind words about my book The Constitution's Text in Foreign Affairs (which I very much appreciate) as well as well-deserved praise for the work of the great scholar of founding-era foreign affairs power, William Casto. 

In discussing the original meaning of executive power in foreign affairs, I would also highlight the contributions of Professor Saikrishna Prakash, who has greatly influenced my thinking on the subject and has done as much as anyone in the modern era to explore the interaction between executive power and war power.

The starting point all of us share, it appears, is that the President's Article II, Section 1 "executive Power" includes, to some extent, a general power over foreign affairs.  That power, however, is qualified by grants of specific foreign affairs powers to other branches, such as the grant to Congress of the power "to declare War."  And among those who share the same starting point, there may be sharp disagreements as to how far the specific grants limit the general grant.  But it's good to see some degree of consensus on the basic framework.


Originalism and Sex Discrimination III: More on the Meaning of Caste
Mike Rappaport

In my last post, I noted the importance of the evidence that Calabresi and Rickert uncover about the meaning of caste at the time of the 14th Amendment.  While they decline to employ it, caste may mean an hereditary classification and that would exclude distinctions based on sex from being treated as caste distinction. 

Ed Whelan first noted this in a post.  Calabaresi and Rickert have responded to Whelan:

Let us turn then to Whelan’s first argument which is that sex discrimination is not a form of caste because being a woman does not make one a member of a hereditary caste.  Some children of women will be men and they will not inherit their mother’s lower social status.  This point is true as far as it goes, but it overlooks:  1) the fact that women do literally inherit their sex from their parents;  and 2) the fact that sex is an immutable characteristic.  We would not say that every immutable trait one inherits from one’s parents is, when legislated upon, a sign of the presence of caste, but we think an effort to give greater property, contract, and employment rights to those with blond hair and blue eyes would be quite suspect under the Fourteenth Amendment.  

I don’t think this response is adequate.  Calabresi and Rickert here are suggesting that women would satisfy a different understanding of caste: one that is not purely hereditary but involves immutable, inherited characteristics.  That is true, but the question is whether the drafters and ratifiers of the 14th Amendment enacted that meaning of caste (and equality).  

If the enactors of the 14th Amendment were concerned about race distinctions, but not that much about sex distinctions, and if race was hereditary like the core cases of Indian castes and feudalism, then it makes sense that they would have chosen this definition.  Put differently, if one must choose between two definitions of caste, and one fits better with the evident purposes of the enactors, as reflected in the legal regime and the public debate at the time, one would choose that one.