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37 posts from January 2012


Patrick Henry: The Anti-Madison
Mike Rappaport

From Michael Klarman's review of Pauline Maier's book Ratification: The People Debate the Constitution, 1787-1788 in the Harvard Law Review:

If Madison is the hero of Ratification, then Patrick Henry is the villain. Henry’s early and vociferous opposition to British efforts in the 1760s to assert greater control over the colonies, which put him at risk of a treason prosecution, had made him a revolutionary icon. In 1787–1788, Henry waged war on the Constitution. Widely regarded as the greatest orator of his age (p. 230), Henry dominated the Virginia ratifying convention, holding the floor for as much as one-quarter of the proceedings and keeping his audience in rapt attention (p. 310). Henry disparaged the Constitution for exalting the power of the federal government, threatening the existence of state governments, and posing an existential threat to individual liberty (pp. 260, 264–66). In his desperation to defeat ratification in Virginia, Henry was not above resorting to personal invective and even outright demagoguery — playing on white Virginians’ paranoia regarding slavery (p. 284).

After failing to defeat ratification of the Constitution in Virginia, Henry promised graciously to accept defeat and become a loyal citizen of the republic. He was lying. Instead, Henry led efforts to secure the sort of structural constitutional amendments, such as limits on Congress’s taxing and war-making powers, that Madison and other Federalists believed would eviscerate the new federal government (pp. 307–08). Madison was convinced that Henry’s real aim was to divide the Union and create a separate southern confederacy (p. 126).

Henry used his formidable political power in Virginia to retaliate against Madison, both to avenge Henry’s defeat at the Virginia ratifying convention and to prevent Madison from seizing control of the project of constitutional amendments (pp. 440–41). In the fall of 1788, after the Confederation Congress declared the Constitution duly ratified and set the date for national elections, Henry announced to the Virginia legislature, which he largely controlled, that anyone favoring federal constitutional amendments should oppose Madison’s selection as U.S. senator and warned that Madison’s selection would mean bloodshed in Virginia. The Virginia legislature proceeded to select two Antifederalists, Richard Henry Lee and William Grayson, as U.S. senators, with Madison coming third in the balloting (p. 440). Still not satisfied, Henry persuaded the legislature to implement an unfavorable gerrymander of the House district that included Madison’s home in Orange County and to pass a law imposing a one-year residency requirement on congressional candidates, which would have precluded Madison from seeking election in a more favorably constituted district (pp. 440–41). Henry and other Antifederalists then recruited the formidable James Monroe to run against Madison. After Madison nonetheless won the election, Henry tried to kill the bill of rights that Madison shepherded through Congress, managing to stalemate the Virginia legislature over its ratification for two years.

Whether or not Patrick Henry was a villain, he is a very interesting figure.  Recently, I read through much of the Virginia Ratification debates.  It is true that Henry spoke a great deal.  His speeches struck me as long on rhetoric and short on substance -- a classic windbag.  Yet, the Antifederalists are often hard to understand and certainly Henry had a great reputation at the time, so maybe I am misjudging him.  I would like to read his speeches over again sometime.

According to Thomas Pangle in this excellent Great Courses/Teaching Company course, Henry led one of the three approaches to opposing or seeking changes in the proposed Constitution.  One approach, advocated by Governor George Clinton of NewYork, advocated junking the work of the Philadelphia Convention and starting over again from scratch.   A second approach was championed by Henry, who called for substantial amendments prior to ratification to be drafted in a second convention.   The third approach, which won out, was that of John Hancock, which called for substantial amendments but did not require them prior to ratification.  I hope to have something to say about this issue in the future.  For now, I think there was much to be said for Henry's approach.

Finally, something most people don't know about Henry is that he changed his views over time.  Despite his strong states rights orientation, he later became something of a Federalist in part because of his opposition to the Revolution in France.  While Henry did not appear to support the Sedition Act, he did oppose the Virginia and Kentucky Resolutions issued in reaction to them.  I suppose the only consistency here was his opposition to Madison.  When Madison was a nationalist, Henry defended states rights.  When Madison became a Democratic Republican, Henry moved towards the Federalists.

Cross Posted at the Liberty Law Blog.


OLC's Recess Appointment Opinion
Mike Rappaport

In the past, I have posted here on the narrow original meaning of the Recess Appointments Clause.  See here and here.  I have now analyzed on the Liberty Law Blog OLC's new opinion attempting to justify President's Obama's recent recess appointments based on the idea that the Senate's pro forma sessions were spurious.  While the analysis is not exactly originalism, I hope the connection is close enough to justify referring to it here.  Here is an excerpt:  

To see the problems with the OLC opinion in clearer relief, imagine the following situation.  The Senate is in session, debating measures and passing legislation.  But its rules announce that it will not be conducting any business on advice and consent matters for three weeks – no hearings, no debates, and no votes.  Under the logic of the OLC opinion, why couldn’t the President conclude that he could make a recess appointment during that three week period.  After all, as a practical matter, the Senate is not available to advise and consent on nominations.  Shouldn’t the President be entitled to rely on the Senate’s pronouncements?  That other provisions do not treat this three week period as a recess might be thought irrelevant since those provisions have different purposes.  OLC might seek to distinguish this situation by arguing that the Senate would be in session.  But that begs the question.  The Senate rules said it was in session during the pro forma sessions as well, but OLC ignored those rules for a variety of reasons that also apply to my hypothetical.  Is my hypothetical a reductio ad absurdum or a disturbing prediction of the future if the OLC opinion is accepted – or both?


Richard Garnett (and others) on Hosanna-Tabor
Michael Ramsey

Richard Garnett writes in response to my post on the Hosanna-Tabor case:

I saw your bit on the Originalism blog about Hosanna-Tabor.  FWIW:  I think [Employment Division v.] Smith was right, AND that [Hosanna-Tabor] is right.  I did an amicus, with Tom Berg and Carl Esbeck, that tried to make something of an originalist argument for the result in [Hosanna-Tabor].  We excerpted it as a short article [available on SSRN here].  

The article is Religious Freedom, Church-State Separation, and the Ministerial Exception(Northwestern University Law Review Colloquy, Vol. 106, p. 175, 2011), by Richard W. Garnett, Thomas Berg, Kimberlee W. Colby, and Carl H. Esbeck.  Here is the abstract:

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure. A government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.

The “ministerial exception,” at issue in Hosanna-Tabor, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule. Reasonably constructed and applied, this rule helps civil decision-makers to avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate and form their members. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach. The civil authority - that is, the authority of a constitutional government - lacks “competence” to intervene in such questions, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdiction.


Originalism in the Blogs: More Views on Originalism and GPS Tracking
Michael Ramsey

Mike Dorf: Herding Katz.

Greg Dihlmann-Malzer: Justice Alito on Originalism in US v. Jones.

The common point in these two posts is Justice Alito's surprisingly strong rejection of originalism in United States v. Jones, the GPS tracking case.  I agree that's an interesting development, and perhaps a welcome one even for originalists.  A politically conservative non-originalist voice on the Court might unsettle some common assumptions about the political alignments of originalism and non-originalism.

On the other hand, I'm not sure why Justice Alito thinks originalist analysis is misplaced in Jones but appropriate in, for example, District of Columbia v. Heller, where (as Professor Dorf points out) he joined Justice Scalia's strongly originalist majority opinion.


Patrick J. Charles: Scribble Scrabble, the Second Amendment, and Historical Guideposts
Michael Ramsey

Patrick J. Charles (Government of the United States of America - Air Force) has posted Scribble Scrabble, the Second Amendment, and Historical Guideposts: A Short Reply to Lawrence Rosenthal and Joyce Lee Malcolm (Northwestern University Law Review, Vol. 105, No. 4, p. 1821, 2012) on SSRN. Here is the abstract:

The following is a reprint of the Northwestern University Law Review Colloquy Essay published in 2011, with minor text, citation, and footnote revisions. The original abstract is below:

In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago. This article sets forth to illuminate two aspects of that debate. The first is Professor Rosenthal’s concern on the constitutionality of open-carry or conceal-carry prohibitions. He inaccurately claims that the Founders left insufficient historical evidence to support such prohibitions, thus this article addresses those concerns through the use of “historical guideposts.” The second aspect this article sets forth to address is Rosenthal and Malcolm’s characterization of the Second Amendment’s “well-regulated militia” language, for it highlights a historical and legal error that continues to pollute contemporary Second Amendment jurisprudence. This error being a “well-regulated militia” does not merely equate to “well-trained,” nor is it a vehicle to analyze gun control regulations in the constraints of the opinion in District of Columbia v. Heller.


David Sloss and Carlos Vazquez on Non-Self-Executing Treaties
Michael Ramsey

At Opinio Juris, David Sloss discusses his new article on non-self-executing treaties and Foster v. Neilson, with comments from Carlos Vazquez and a reply by Professor Sloss

Sloss’ article is an important one, because Chief Justice Marshall’s opinion in Foster v. Neilson (the only judicial discussion of non-self-execution anywhere near the founding period) has been a major stumbling block to understanding the legal status of treaties.  Professor Sloss has an ingenious explanation that’s well worth checking out.  If he's right, it would go a long way toward soldifying what I think is the correct view of the original understanding of non-self-execution: that it was much narrower than the modern version and limited to unusual circumstances.


Garrett Epps on Scalia and GPS Tracking
Michael Ramsey

Justice Scalia’s use of originalism to decide the GPS tracking case, United States v. Jones, has drawn some scorn, not least from Garrett Epps in The Atlantic: Justice Scalia Turns to 18th-Century Wisdom for Guidance on GPS.  Professor Epps snorts: “Could colonial sheriffs have smuggled a tiny constable into a carriage? No, and that's why we can't rely on their legal reasoning.”

It’s a bit surprising to hear that sort of anti-originalism from Epps (more on that in a moment), but first a few thoughts in defense of Scalia (with the caveat that I'm not at all a Fourth Amendment scholar).

First, the analogy to technologies of the past isn’t as farfetched as it might seem.  Justice Alito’s concurrence may have had the best line – hiding a policeman in a suspect’s coach, he said, “would have required either a gigantic coach, a very tiny constable, or both."  But I’m fairly sure that in at least one of Arthur Conan Doyle’s short stories Sherlock Holmes follows a suspect by surreptitiously climbing on the back of the suspect’s carriage.   And for an even better analogy, in The Sign of Four Holmes tracks a suspect who steps in creosote by using a dog to follow the scent (the stratagem goes awry when the suspect crosses paths with a wagon carrying creosote, sending the dog off on the wrong scent).  True, this is fiction, and from the nineteenth century rather than the eighteenth, but surely the technological analogies aren’t unimaginable.  I can think of a number of ways an 18th-century investigator might put something on a suspect’s vehicle to make it easier to identify (and, if Scalia is right about the state of the law, in general that would have been illegal absent some heightened showing).  So, at least according to Scalia, there was a general rule that the government couldn’t touch your stuff in the course of an investigation.  Stated in that way, the rule translates easily enough to cover placing a GPS tracker on a car.

Second, I’m not sure it’s such a bad rule for the present, at least as a constitutional minimum.  Scalia says that if we don’t have some sort of fixed minimum, all of our rights may be balanced away by judges.  Professor Epps seems to assume that under a modern “reasonable expectation of privacy” inquiry the defendant would still win (and maybe he would have in front of these particular Justices), but it’s far from clear that’s an obvious result.  After all, the police can physically follow a suspect surreptitiously without implicating the Fourth Amendment.  The GPS tracker is just less fallible and less obvious than an undercover detective, and it allows the police to monitor many more suspects.  But that just means it’s more efficient, not that it’s more intrusive.  How there’s a reasonable expectation of privacy in your movements on the public street is, at best, puzzling.  Scalia's rule, in contrast, offers some fixed limits on the government in this context.

The better criticism is that Scalia’s rule is formalistic – it’s arbitrary to draw the line at the police’s physical touching of the suspect’s property when it’s really the police’s monitoring that we’re concerned about.  As Scalia has said elsewhere, law is formalistic: it’s often an exercise in drawing a line at an arbitrary point on a spectrum on which a line must be drawn somewhere but it’s not obvious where.  (Why is 55 mph perfectly safe and 56 mph too fast?).  Some touchings, in the course of investigation, may be so incidental that they shouldn’t come under the Fourth Amendment, but rather than trying to figure out which those are, we include all touchings.   (Whether the opposite rule holds – that police actions that don’t touch property aren’t covered – wasn’t decided in the case).

In any event, assuming Scalia is right about the 18th-century rule, his originalist point is that that’s the rule we have, until we change it in the prescribed way.  Professor Epps says this is the wrong approach.  But what’s his alternative?  I assume it’s to have judges decide for themselves what the best modern approach should be, taking into account modern circumstances and sensibilities (which basically means doing what they think best).  So really all Professor Epps is saying is that we should be ruled by modern judges, rather than by the framers’ rules.  That’s the fundamental divide between originalists and advocates of a living Constitution.

If that is what Professor Epps is saying, here’s why I’m surprised to hear him say it: Not long ago he was arguing that children of illegal aliens, if born in the United States, are constitutionally entitled to U.S. citizenship by the first sentence of the Fourteenth Amendment.  (I agree.)  But that is a claim that we should be governed by rules laid down in the past by people who didn’t understand modern conditions.  We could instead say that modern judges should be free to decide the birthright citizenship issue in light of modern circumstances (that is, however they think best).  The framers of the Fourteenth Amendment didn’t know about mass illegal immigration, just as the framers of the Fourth Amendment didn’t know about GPS tracking.  We can either apply the rules they wrote to new situations, or we can make up our own rules.

Whatever the answer to that dilemma, it should apply across the board.  Professor Epps wants to apply the framers’ rule in one situation but make fun of Scalia for doing it another.


Hosanna-Tabor: Reviving the Right Question
Steven Smith

Judges and lawyers, and to a large extent law professors as well, are moved to think about the Constitution in the context of cases and controversies– of current cases and controversies– and so it is natural for us to suppose that the Constitution must be speaking to our questions.  Originalists as well as others may indulge this supposition.  But what if our questions were not live ones for the enactors of a constitutional provision?  What if they were addressing wholly different questions?

The establishment clause is a case in point.  A live question for many in recent decades, broadly phrased, concerns the relation between government and religion (whatever that is).  Is it proper for government to aid “religion”?  To endorse “religion”?  To act on “religious” grounds?  To use “religion” to advance public goals?  It has been natural to suppose that the First Amendment’s establishment clause speaks to questions like these.  Not surprisingly, a whole body of jurisprudence and scholarship has developed, purporting to explain what the establishment clause says or entails in these matters.

There is good reason to think, though, that the founding generation was not addressing questions about the relation between government and religion, exactly.  Instead, the founders confronted two different questions.  The immediately pressing concern was jurisdictional: how was jurisdiction in matters of church and conscience to be allocated as between the states and the new national government?  In the background, though, was an important and long-standing substantive question– a question not about the relation between government and religion, but rather about the relation between government and the church.

Here is a shamelessly simplified summary.  Through much of Western history, princes and churchmen alike had often supposed that rulers had an important role in guiding and regulating the church.  Emperors like Constantine and Charlemagne had acted boldly on that assumption.  Pious rulers had sometimes stepped in to clean up a church polluted with family politics, corrupt clerics, or theological strife.  Beginning in the late eleventh century, though, popes began to act forcefully to establish the principle of libertas ecclesiae– freedom of the church.  Whether Radbod or Bernard gets to be bishop, the popes insisted, is something for the church to decide, not the king.

This struggle for freedom of the church produced its legendary confrontations (Henry IV standing ragged and barefoot for three days in the snow outside the castle at Canossa, pleading for papal forgiveness), and its martyrs (like Thomas Becket, murdered in Canterbury cathedral at the veiled behest of Henry II, and Thomas More, beheaded for resisting Henry VIII’s incursions into church affairs).  Henry’s takeover of the English church in the 1530s reflected a severe Erastian setback for freedom of the church.  Nonetheless, the principle and, importantly, the question remained.  So the place of the church still presented a momentous question at the time of the American founding.

I have argued at length elsewhere, on both originalist and non-originalist grounds, that as applied to the national government, the establishment clause is best understood as speaking to the question of the church, and as effectively embracing the classical principle of “freedom of the church.”  See here and here.  I say “as applied to the national government” because the primary purpose of the clause, I believe, was to affirm that matters of church and conscience remained within the jurisdiction of the states, not the national government.  But in the process of allocating and denying jurisdiction, the clause necessarily defined the national government’s role vis-a-vis the church.  And that role was, basically, . . . none.  The national government had no power over an “establishment of religion”-- which in context amounted to saying “no power over the church.”

This is not the place to rehearse the full argument.  But here is one quick observation: it turns out that Jefferson got it just about right in his famous Danbury Baptist letter.  Alas, this should not be happy news for people who habitually invoke Jefferson without paying close attention to what he actually wrote– David Souter, for example.  The establishment clause, Jefferson said, created a “wall of separation” not between religion and government, but between “church and state.”

The founders’ embrace of the classic commitment to freedom of the church has been missed by most modern judges and scholars, in part because they have supposed that the religion clauses were and are about something more amorphous– namely, “religion.”  If religious institutions, or churches, are covered by the clauses at all, that is because they are one item that fits with the general category of “religion.”  This reasoning, I would argue, gets things backwards. What the clauses were primarily designed to protect was not “religion,” exactly, but rather the church (including the “inner church” of conscience, but that is a different and more complicated story). 

Perhaps the most important and encouraging aspect of the Supreme Court’s recent decision in the Hosanna-Tabor case is that the Court understood, and argued for on originalist and other grounds, this church-centered purpose of the religion clauses.  The religion clauses together squarely protect religious institutions as a primary commitment, the Court explained,  and not as some derivative or lesser included implication.

In some respects, Hosanna-Tabor was a cautiously narrow decision.  There is much in the decision that lawyers and scholars will need to argue about, and that will require future elaboration.  Still, it is encouraging that after, lo, these many years, the Court seems to have acknowledged the right question.


Originalism at the Supreme Court: GPS Tracking
Michael Ramsey

Today’s opinion in United States v. Jones, holding that the government placing a GPS tracking device on a car is a “search” for Fourth Amendment purposes, rests on originalist principles.  (Analysis from Lyle Denniston at SCOTUSBlog here; and a series of posts, some of significant originalist interest, from Orin Kerr at Volokh Conspiracy here, here and especially this one: Three Questions Raised by the Trespass Test in United States v. Jones).

 Justice Scalia wrote for the majority:

It is important to be clear about what occurred in this case: The Government physically occupied private proper­ty for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886)). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and­-seizure analysis:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.

The text of the Fourth Amendment reflects its close con­nection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.

Scalia continued,

At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” [Kyllo v. United States, 533 U. S. 27, 34 (2001)].  As ex­plained, for most of our history the Fourth Amendment was understood to embody a particular concern for gov­ernment trespass upon the areas (“persons, houses, pa­pers, and effects”) it enumerates.

As a result (from footnote 3, but it seems a fair summary of the opinion as a whole),

Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a "search" within the original meaning of the Fourth Amendment. Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.

Concurring in the judgment, Justice Alito objected to using “18th Century tort law” to resolve the case, preferring to use only the modern formulation “reasonable expectation of privacy.”  (Scalia did not reject this formulation as an additional test, only finding it unnecessary if the government action was a search under the 18th century meaning).  Notably, the Alito opinion received four votes (Alito, Ginsburg, Breyer and Kagan), with Scalia needing Justice Sotomayor as the fifth vote for the originalist analysis.  As a couple of other recent cases have suggested, Justice Alito may be less devoted to Scalia's originalist way of looking at things than many people previously assumed.

Seth Barrett Tillman on Amar, Teachout and the Foreign Emoluments Clause
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar – Contradictions and Reconciliation on SSRN. Here is the abstract:

The Foreign Emoluments Clause is a constitutional backwater. So much so, that there is no substantial discussion of this clause in any federal adjudication (although the Office of Legal Counsel has regularly opined on it). Backwaters, however, have an unappreciated and significant virtue. They allow us to discuss our precommitments, assumptions, and methodological positions free from the distractions of the great political issues of the day – issues which naturally tend to divide us in ways which may be unconnected to the merits. Simply put, backwaters allow us to freely debate the merits of contestable worldviews. That is what I propose to do here. 

Both Professors Zephyr Rain Teachout and Akhil Reed Amar have discussed the Foreign Emoluments Clause in their recent publications. Amar is an originalist, perhaps the most influential American originalist of the late twentieth century; Teachout, although, perhaps, not an originalist per se, regularly writes in an originalist mode – parsing drafting history, text, structure, precedent, and history – in search of a public (or, perhaps, an intended) meaning contemporaneous with ratification. Both Teachout and Amar might be fairly characterized as left-of-center, but both are also clearly in the academic mainstream. Both Teachout and Amar’s publications are actively cited, if not widely acclaimed, and my own view is that citations and public acclaim vastly underestimate the influence of these two scholars. (However, as do all mere humans, both Teachout and Amar stray into some truly puzzling errors from time to time.) Indeed, there are now several publications that cite both Teachout and Amar. 

Interestingly, each takes a position in regard to the Foreign Emoluments Clause which is in clear conflict with the position taken by the other. The stakes here involve more than the contours, scope, purpose, and original public meaning of the Foreign Emoluments Clause (which, in itself, is not an entirely minor thing). 

If Amar is correct, then Teachout must be wrong, and it follows that Teachout’s views in regard to congressional power to limit election-related speech and spending are (if not flatly wrong) something that must be carefully reconsidered in light of Amar’s contrary position. 

On the other hand, if Teachout is correct, then Amar must be wrong, and it follows that Amar’s views in regard to constitutional structure, intratextualism, and the meaning of coordinate language in other constitutional clauses are (if not plainly wrong) something that must be closely reexamined in light of Teachout’s contrary teachings. This paper will explore that conflict, and, then, I will attempt to reconcile the two positions.