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46 posts from August 2012


Miller v. Alabama: Justice Thomas's Originalist Dissent
Mike Rappaport

In my last post on Miller v. Alabama, I discussed the majority opinion’s use of a common law constitutionalism approach to implementing the cruel and unusual requirement.  The approach seems constrained on its face, but in fact turns out not to be.

In this post, I want to explore Justice Thomas’s originalist dissent and his use of originalism to constrain precedent.  The majority had relied on two lines of precedents that it then expanded to hold that a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders is cruel and unusual under the Eight Amendment.  Justice Thomas argues that neither of these lines of precedent is consistent with the original understanding of the Eight Amendment.

Thomas disputes the first line of cases on originalist grounds.  These cases adopt categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty – cases such as Roper v Simmons, which bars capital punishment for children, and Graham v. Florida, which prohibits life without the possibility of parole for a juvenile convicted of a nonhomicide offense.  Relying on Justice Scalia’s opinion in Harmelin v. Michigan, Thomas concluded that the Cruel and Unusual Punishments Clause does not contain a proportionality principle and therefore does not authorize courts to invalidate any punishment they deem “disproportionate to the severity of the crime or to a particular class of offenders.”

Thomas may be right, but there has been some academic work on the Eighth Amendment’s original meaning that argues it does contain a proportionality principle.  In a very interesting article, Professor John Stinneford argues that “the word ‘unusual’ was a term of art that referred to government practices that deviate from ‘long usage.’”  Building on this article, Stinneford argues in a second piece that the original meaning of the Eight Amendment includes a proportionality requirement:

The English version of the Cruel and Unusual Punishments Clause was specifically directed at excessive punishments, not simply illegal ones. In America, the phrase “cruel and unusual” was widely used within the legal system as a synonym for “excessive” and was not an “exceedingly vague” way to express the idea of disproportionality. Finally, the historical evidence shows that the Framers and early interpreters of the Cruel and Unusual Punishments Clause understood it to prohibit excessive punishments, not merely barbaric methods of punishment.

Thomas also disputes the second line of cases, which prohibits mandatory imposition of the death penalty.  According to Thomas, the Cruel and Unusual Punishments Clause prohibits “torturous methods of punishment” and is not concerned with whether a particular lawful method of punishment is imposed pursuant to a “mandatory or discretionary sentencing regime.”  He bases this in part on the fact that “in the early days of the Republic, each crime generally had a defined punishment prescribed with specificity by the legislature,” and this included capital punishment.

In Miller, Justice Thomas does not argue for overturning these precedents.  Presumably, this is not directly raised by the case and the parties did not ask the Court to do so.  Instead, the original understanding is relevant as to whether these precedents should be extended.  Because they conflict with the original understanding, they should be limited to their existing facts and should not be used to create further departures from the original understanding.

This is a common approach to reconciling originalism and precedent, and represents a reasonable compromise between both values.  I have advocated a different version of this compromise in my own scholarship.

Update: I just noticed that John Stinneford has a podcast on Miller v. Alabama here.  I haven't listened to it yet, but it is sure to be of interest. 

(Cross posted at the Liberty Law Blog)

Al Brophy on "Applied Legal History"
Michael Ramsey

At the Faculty Lounge, Al Brophy:  Applied Legal History and Law Office History.

(Via Josh Blackman's Blog).

Isn't the answer that it's "applied legal history" when it reaches liberal results and "law office history" when it reaches conservative results?


Two More Important Reviews of the Scalia/Garner Book
Michael Ramsey

In the Wall Street Journal, David Rivkin likes it.

In The New Republic, Richard Posner doesn't.

(Thanks to Mike Giorgino and Michael Perry for pointers).

These are both great reviews, but I think their broader significance is the impact the Scalia/Garner book is having, beyond purely academic circles, in the public intellectual debate.  And while that impact in turn has various consequences, I think the greatest is this: textualism has come to the forefront as the dominant version of originalism and indeed as refinement of and replacement for a more generic idea of originalism as what the framers would have wanted or expected.

Miller v. Alabama: Mandatory Life Sentences for Juvenile Homicide Offenders as Cruel and Unusual Punishment
Mike Rappaport

Miller v. Alabama is an interesting case decided by the Supreme Court last June which has not received that much attention.  In Miller, the Supreme Court held that the Eight Amendment forbids as cruel and unusual punishment a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders.

In this post, I will discuss some aspects of the majority’s opinion, showing how they appeared to rely on precedent but really just exercised freedom to do as they pleased.  In my next post, I will address Justice Thomas’s originalist dissent.

In the majority opinion written by Justice Kagan for the four liberals and Justice Kennedy, the Court bases its holding on two lines of cases.  As the syllabus for the decision states:

Two strands of precedent reflecting the concern with proportionate punishment come together here.  The first has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.  See, e.g., Kennedy  v.  Louisiana.  Several cases in this group have specially focused on juvenile  offenders, because of their lesser culpability.  Thus, Roper v. Simmons held that the Eighth Amendment bars capital punishment for children, and Graham v. Florida, concluded that the Amendment prohibits a sentence of life without the possibility of parole for a juvenile convicted of a nonhomicide offense.  Graham further likened life without parole for juveniles to the death penalty, thereby evoking a second line of cases.  In those decisions, this Court has required sentencing authorities to consider the characteristics of a defendant and the details of his offense before sentencing him to death.  See, e.g., Woodson  v.  North Carolina.  Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life without parole for juveniles violates the Eighth Amendment.

Signficantly, neither of these two lines of cases actually supports the decision here.  Instead, the Court kind of adds the two together – juvenile offender plus mandatory  sentence – to justify the holding of cruel and unusual.  The opinion reads as a well crafted exercise of common law decisionmaking.  In fact, it reminded me of a Justice Brennan opinion – a first rate use of the materials to justify a liberal result that the precedents did not really support but that the opinion persuasively claimed grew out of the prior cases.

But as is often the case with a Brennan opinion, when one looks at the opinion more deeply, one realizes that, despite its apparent persuasiveness, it engages in some highly contestable moves.  First, although the Court is relying on precedents, it is also dispensing with other precedents.  In Harmelin v. Michigan. the Supreme Court had declined to extend the Court’s individual sentencing requirements to noncapital cases “because of the qualitative differences between death and all other penalties.”  Here, though, the Court chose to extend those sentencing requirements on the grounds that Harmelin had not involved minors.  Second, in prior cases, the Court had asked whether legislative enactments and actual sentencing practices showed a national consensus against a sentence for a particular class of offenders.  This inquiry connected the Court’s analysis with the term “unusual” in the Eighth Amendment.  But here the Court puts that inquiry to the side as well.

The basic message here is that the common law method can often be used by a court to reach pretty much any result that it seeks.  The majority clearly believed that a mandatory life sentence without parole for a juvenile was morally problematic and therefore crafted an opinion dispensing with such punishments.  And as the concurrence by Justice Breyer and the dissent by Justice Thomas showed, this is unlikely to be the end of the Court’s endeavors in this area.

In my next post, I will discuss Justice Thomas originalist analysis and how he would seek to limit the two lines of cases that the majority extended in Miller.

(Cross Posted at the Liberty Law Blog)


Judge Sutton on what Constitutes a Threat
Michael Ramsey

At Volokh Conspiracy, Orin Kerr has this interesting post on a recent Sixth Circuit decision addressing the textual meaning of "threat": Is a Threat Really a Threat if the Speaker Did Not Intend It to Be? (discussing a recent Sixth Circuit decision by Judge Sutton; Sutton says "no" but Professor Kerr is not convinced).


Randy Barnett on Salmon Chase
Michael Ramsey

Randy Barnett (Georgetown University Law Center) has posted From Antislavery Lawyer to Chief Justice: The Remarkable But Forgotten Career of Salmon P. Chase (Case Western Law Review, forthcoming) on SSRN.  Here is the abstract:

Salmon P. Chase was as responsible as any single person for the abolition of chattel slavery in the United States. Yet his name is barely known and his career is largely forgotten. In this paper, the author seeks to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why this is a career worth both remembering and honoring, the author offers some possible reasons why his remarkable achievements have largely been forgotten.

Via Volokh Conspiracy.


James Maxeiner: A Civil Law for the Age of Statutes?
Michael Ramsey

James R. Maxeiner (University of Baltimore School of Law) has posted Scalia & Garner's Reading Law: A Civil Law for the Age of Statutes? on SSRN.  Here is the abstract:

In Reading Law: The Interpretation of Legal Texts U.S. Supreme Court Justice Antonin Scalia and American legal lexicographer Bryan A. Garner challenge Americans to start over in dealing with statutes in the Age of Statutes. They propose ― "textualism," i.e., ― "that the words of a governing text are of paramount concern, and what they convey in their context is what the text means." Textualism is to remedy American lack of "a generally agreed-on approach to the interpretation of legal texts." That deficiency makes American law unpredictable, unequal, undemocratic and political. In the book‘s Foreword Chief Judge Frank Easterbrook calls the book ― "a great event in American legal culture." It is a remarkable book because it challenges common law traditions. This review essay shows how Scalia and Garner challenge common law and summarizes the content of their challenge.

This essay contrasts the methods of Reading Law with the methods of the Continental civil law. It shows that textualism is consistent with modern civil law methods. It shows also, however, that pure textualism, which largely restricts interpretation to grammatical and historical interpretation and excludes non-textual interpretation such as equitable, pragmatic and purposive approaches, is not consistent with modern civil law methods. In modern civil law, textualism and non-textualism coexist. They must, if law is to honor legal certainty, justice and policy.


Suit Filed Against the President's No-Deportation Policy (UPDATED)
Michael Ramsey

A group of immigration agents have filed suit against President Obama's policy not to deport illegal aliens who came to the United States as children -- story here.  Assuming the court gets to the merits (a big assumption), this could be a big separation of powers case.  As discussed a while ago, it's not clear how the President has constitutional power to adopt the policy, which looks a lot like a change in law that should come from the legislative branch, not the exeuctive.

At the time the President adopted the policy, there was speculation that it could be justified under the President's executive power of prosecutorial discretion.  I was skeptical then, and am more skeptical now that I've thought about it.  The key, I think, is that the President's policy is not merely not to prosecute, but to treat the category of people in question as (temporarily) entitled to remain in the United States.  As the news report states:

Last week, the Homeland Security Department began taking applications from those no older than 30 who came to the U.S. as children and who have kept at least fairly clean criminal records. They are being granted "deferred action," which is an official notice that they are not to be deported and will be granted work permits to stay and get jobs legally in the U.S.

That sounds like a change in legal status -- a legislative act.

Of course, the relevant statute may grant the President discretion to allow certain persons to remain in the United States, and (non-delegation issues aside) that would solve the problem.  My guess is that if the administration ultimately defends the policy on the merits in court, that will be its argument.  (Unfortunately, as the separation of powers argument is much more interesting).

UPDATE:  Matthew Ing writes to point out that the Congressional Research Service issued a memorandum on the subject (before the suit was filed): Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.  Among other things, the memorandum -- consistent with the observations above -- finds authority to issue work permits in the relevant federal statutes.  It is somewhat less clear on whether the decision not to deport should be understood to rest on constitutional executive power alone or a combination of executive power and statutory delegation.


Richard Epstein on Conservative Jurisprudence at the Supreme Court
Michael Ramsey

At SCOTUSBlog, Richard Epstein: A high-stakes game: Will the Supreme Court change its direction after the next election? (principally arguing that the conservative Justices have not been aggressive enough in returning the Constitution to its intended role in property rights, economic rights, separation of powers and federalism).  An excellent complement to two other recent SCOTUSBlog posts noted earlier here, by Adam White and Roger Pilon.  The central point of all of them is the developing fundamental tension in conservative jurisprudence over how aggressive the Court should be in overturning decisions of the political branches.


Mike Greve on the Taxing Power Argument
Mike Rappaport

At the Liberty Law Blog, my co-blogger, Mike Greve, defends Michael Paulsen against my criticism of Paulsen’s defense of Chief Justice Roberts’s tax argument in Sibelius.  While Paulsen describes himself as an originalist, and Greve is uncomfortable with orthodox originalism, it is important to recognize that Greve and Paulsen have something very much in common.  They are both strong Hamiltonians and therefore it is no surprise that Greve feels the force of Paulsen’s nationalist arguments.  It may be their affinity for Alexander Hamilton – who failed to appreciate American federalism – that leads these two Mike’s astray.

First, Greve argues as follows:

the constitutional question isn’t whether Congress was invoking  a particular power [that is, the tax power] but whether it had  the power.

Mike Rappaport tries to fight that proposition. Suppose, he says, Congress imposes a retroactive criminal penalty, which would be unconstitutional under the Ex Post Facto Clause: should the Court sustain the measure nonetheless because Congress had the power of imposing the same fine as a civil penalty and pursuant to its taxing power? Well, no. The designation (“criminal/civil”) makes a practical, operational difference:  depending on what the measure was enacted as, you either owe the money or you don’t. Not so with the mandate: call it what you will, you owe it and it operates as a tax. Because nothing hangs on the label, the only question is the power. And on that score, even the plaintiffs conceded throughout that Congress could have imposed the mandate as a tax.

I believe Greve misses my point here.  My point was that there is no difference between the penalty/tax case and criminal fine/civil penalty case.  According to Greve’s logic, one would have to argue that the criminal fine should simply be reinterpreted as a civil penalty, which would make it constitutional.  But most people would not accept that argument.  They would say that it matters that Congress said it was a criminal fine, which is a different thing than a civil penalty.  Similarly, I am arguing that it matters that Congress called its action a penalty (and not only termed  it thus, but made it substantively  the sanction for violating the obligation to purchase health insurance – remember, taxes are not imposed as penalties for violating  the law).

(Part of the problem here may be that Greve may misunderstand my argument.  My argument is not that Congress could have imposed the civil penalty “pursuant to its taxing power.”  In my example, Congress imposes the civil penalty as part of its regulatory power.  My point was not that Congress could pass the civil penalty as part its taxing power.  Instead, it was that even though Congress had the power to pass a civil penalty that would have the same effect as the criminal fine, one would not say that Congress did that because Congress did not intend to do that.  Intent matters, as it does for the tax and penalty argument.)

Second, Greve says:

On solid originalist/formalist grounds, all the “it’s not a tax” talk is beside the point because it wasn’t subject to bicameral approval, presentment, and veto. Had Congress said, in the statute, that “this penalty shall not be construed as a tax”; or had it included “findings” to that effect or even a statement of intent, the case might well have gone the other way: deference to Congress, and all that.  But Congress didn’t do that, and so there.  As for the statutory tax-versus-penalty argument: that would count in statutory  cases, where we divine the true intent of the Congress. It doesn’t count for constitutional  purposes, where the question isn’t intent but power.

Once again, I disagree.  Congress did put the penalty language in the statute and made that penalty a sanction for failing to purchase health insurance.  That was more than enough to let the world know, without any legislative history, that it was not exercising the tax power.  As for the claim that the language counts for statutory purposes, but not constitutional purposes, the question is why?  After all, the criminal fine/ civil penalty point doesn’t merely count for statutory purposes.

Mike Greve is right that the criticisms of Chief Justice Roberts that focus on his changing his vote or caving to political pressure are, in this context, beside the point.  But my criticisms of Mike Paulsen’s argument were not based on such matters.  They were based on the legal arguments.

(Cross posted at the Liberty Law Blog)

MICHAEL RAMSEY ADDS:  Mike Greve's post is worth noting as well for its skepticism about the "direct tax" point (scroll to near the end).  That is, Chief Justice Roberts' opinion only works if the mandate, construed as a tax, isn't a "direct" tax under Article I, Section 9 (because if it is a direct tax, that section requires that it be equally apportioned among the states).  But as Professor Greve says, the Chief Justice did not really engage the issue, and I've yet to hear a solid originalist defense of that aspect of the holding.

This point relates to the post by Michael Paulsen as well.  Professor Paulsen emphasizes the fearsome scope of the national government's taxing power.  But his view assumes that most taxes are not "direct" taxes.  If instead most taxes are direct taxes, the practical difficulty of apportioning them among the states means that the original national taxing power was actually much less formidable than he supposes.  While I haven't done the research necessary to have a definitive opinion here, it does strike me that there's an incongruity in Paulsen's view: if the national taxing power is truly "plenary," as he says, why were the framers so convinced that national power as a whole was defined and limited (as they repeatedly said)?  In contrast, a broader reading of "direct taxes" -- making Article I, Section 9 an important practical limit on national taxing power -- accords better with the framers' discussions of the limited scope of national authority.