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42 posts from May 2013


Mitchell Berman & Kevin Toh: Pluralistic Nonoriginalism and the Combinability Problem
Michael Ramsey

Mitchell N. Berman (University of Texas School of Law) and Kevin Toh (San Francisco State University) have posted Pluralistic Nonoriginalism and the Combinability Problem (Texas Law Review (Forthcoming)) on SSRN.  Here is the abstract:

The commonly-held assumption that there exists a genuine dispute between originalists and nonoriginalists can appear surprisingly infirm when closely scrutinized. Many contemporary originalists speak in terms of what the constitutional law is or consists of. Their claim (to a first approximation) is that the original public meaning of the constitutional text is our ultimate constitutional law. In contrast, most contemporary nonoriginalists tend to speak in terms of what constitutional interpreters should do. These nonoriginalists (often termed “pluralists”) urge that judges do and should decide cases based on a variety of considerations or facts, including: semantic facts concerning what the constitutional text means; historical facts regarding what courts and other state actors have said and done in the past; sociological and psychological facts about present-day Americans' behavior and thoughts; moral facts regarding what justice demands; prudential facts regarding what would make the legal system work better; and so on. In short, originalists seem committed to a theory of law, whereas nonoriginalists appear to advocate a theory of adjudication, and the two need not be construed as incompatible.

In order to determine whether originalists and nonoriginalists really do disagree with each other, it will be useful to translate nonoriginalist views about what judges should do into claims about what the constitutional law is. In this essay, produced for a symposium on “constitutional foundations,” we attempt to effectuate just such a translation — that is, we devise an explicit nonoriginalist conception of constitutional law that can serve as a clear competitor to the originalist conception. According to the conception of law that we deem faithful to the spirit of nonoriginalists' adjudicative prescriptions, the constitutional law consists of some combination of semantic, historical, sociological, psychological, moral, and prudential facts. Some influential originalists have already anticipated such a nonoriginalist conception of law by arguing that any such combination of different kinds of facts suffers from incoherence, impossibility, or some analogous fatal defect. “The combinability problem” is the name we give to this problem that allegedly ails all pluralist nonoriginalist conceptions of law. We disambiguate several versions of the combinability problem and disarm each in turn. Furthermore, with a view toward blunting what we consider the most potent version of the combinability problem, we offer an avowedly tentative and very partial enumeration of the ultimate legal norms of the American legal system.


Barry Cushman: NFIB v. Sebelius and the Transformation of the Taxing Power
Michael Ramsey

Barry Cushman (Notre Dame Law School) has posted NFIB v. Sebelius and the Transformation of the Taxing Power (Notre Dame Law Review, Vol. 89, 2013, forthcoming) on SSRN.  Here is the abstract:

In National Federation of Independent Business v. Sebelius, Chief Justice Roberts wrote for a majority of five justices in holding that the “shared responsibility payment” required by the Patient Protection and Affordable Care Act (“ACA”) constituted an imposition of a “tax” rather than a “penalty.” Thus, even though the Chief Justice and four other justices had concluded that the provision was not a legitimate exercise of the Commerce Power, the Court held that it was a valid exercise of the Taxing Power.

The origin of the distinction between taxes and penalties in Taxing Power jurisprudence is found in the 1922 decision of Bailey v. Drexel Furniture Co., more commonly known as the Child Labor Tax Case. There the Court invalidated a provision of the 1919 Revenue Act imposing an excise of ten percent on the net profits of all firms employing children under specified ages in various tasks, for longer than specified hours, or at night work. Bailey was followed in other, similar cases in the 1920s and 1930s, and the Court continued to treat those precedents as good law throughout the remainder of the 20th Century.

Chief Justice Roberts did not reject the authority of the Child Labor Tax Case. Instead, he reviewed the features of the Child Labor Tax that had prompted Chief Justice Taft and his colleagues to conclude that the measure imposed a regulatory penalty, and then offered several distinctions between the ACA and the earlier exaction. But a review of the reaction of child labor reformers to the 1922 decision suggests that contemporaries would not have regarded those distinctions as constitutionally significant. For child labor advocates in the 1920s did not believe that if they revised the measure to remove those objectionable features, the tax would then pass constitutional muster. Instead, they regarded the idea of such a constitutional excise as hopeless, and turned their attention to an unsuccessful effort to amend the Constitution to permit Congress to enact federal child labor legislation.

This article, a version of which was delivered as the Constitution Day Lecture at the University of Notre Dame in September of 2012, proceeds as follows: Part I provides an overview of the relevant twentieth-century Taxing Power precedents. Part II reviews the decisions of the lower federal courts concerning the construction and constitutionality of the ACA as a taxing measure. Part III canvasses the arguments made in the briefs submitted to the Court, observing that the decisive Taxing Power issue received scant attention from the parties. Part IV scrutinizes Chief Justice Roberts’s efforts to distinguish the Child Labor Tax Case, concluding that if the assessment of that decision by contemporary observers was accurate, each of those distinctions is insufficient. Part V draws on the contemporaneous analysis of Professor Thomas Reed Powell to isolate the core principle emerging from the Child Labor Tax Case and its progeny: that a nominal tax is in fact a regulatory penalty where it imposes an exaction triggered by departure from a detailed and specified course of conduct, and the exaction is sufficiently onerous to induce those engaged in the targeted conduct generally to alter their behavior. Part VI presents an argument, not considered by the Court, that the ACA might be understood to impose a regulatory penalty so defined. If that understanding is correct, then the Court may have effectively overruled the Child Labor Tax Case and its progeny sub silentio, thereby substantially transforming Taxing Power doctrine. Part VII explores an alternative, albeit considerably less likely possibility: that contemporary child labor reformers misunderstood the Child Labor Tax Case, and could have successfully revised and defended a new Child Labor Tax by altering one or more of the distinguishing features identified by Chief Justice Roberts. If that is so, then that unfortunate generation of social activists squandered fifteen years in fruitless pursuit of a constitutional amendment authorizing Congress to regulate the labor of children, when a much easier and more expeditious solution lay right before their eyes.


A Response on Presidents Signing Constitutional Amendments
Michael Ramsey

Sopan Joshi (author of this article) responds to these comments by Andrew Hyman:

Thanks to Andrew Hyman for his thoughtful post.

Hyman first argues that a constitutional amendment does not “take effect” when passed by Congress and it is thus outside the scope of the Presentment Clause in Article I, Section 7. Although the amendment itself does not immediately take effect, the constitutional amendment proposal certainly does. Consider a hypothetical: suppose each of the legislatures in all 50 states “ratify” a constitutional amendment banning abortion (or, if you prefer, legalizing gay marriage). Further suppose, however, that Congress did not first adopt the amendment proposal by two-thirds votes in each chamber. Would the amendment be valid? I think the clear answer is “no,” and I suspect that Hyman agrees. A congressional proposal is the necessary first step in the amendment process; without it, subsequent state “ratification” is constitutionally meaningless. But that means that the congressional proposal itself has some legal effect. And if it has legal effect, then it must have “take[n] effect,” no?
Alternatively, Hyman argues that Article V’s use of the word “whenever” somehow grants Congress a freewheeling license to bypass presentment. This strikes me as a bit of a stretch. I read “whenever” as simply saying that Congress may initiate the amendment process at its sole discretion, just as it can, say, create lower federal courts “from time to time.” But it by no means follows that Congress has the power to unilaterally control the process once initiated. By way of analogy, when I tell my four-year-old daughter that we can go to the park to play “whenever she wants,” I most certainly do not mean that she may leave the house by herself and without informing me. Parental accompaniment, like presidential presentment, operates as a default background rule; only explicit language to the contrary can overcome it. “Whenever” falls far short.
Finally, Hyman argues that the phrases “application by the legislatures” and “ratified by the legislatures” in Article V somehow imply that the executive is not involved. This argument proves too much. As I discuss in my article, the President is not mentioned in any of the grants of congressional power. Yet nobody could seriously argue that congressional exercise of those powers is immunized from presentment. In short, the quoted phrases tell us nothing about whether the President is or is not involved in the amendment process. Hyman is correct that the natural consequence of my position is that the President must also have the power to veto a congressional resolution calling for a constitutional convention. Contrary to Hyman’s assertion, though, the President’s exercise of that power would not “thwart Congress in doing its constitutional duty.” Rather, it would be keeping in line with constitutional separation of powers. After all, if the convention were truly meant to be “automatic,” then the Framers could have simply bypassed Congress altogether. They did not. And by requiring bicameral action of Congress to call a convention, the Framers necessarily incorporated the presentment requirement as well.


Greg Weiner on Judicial Restraint and Originalism
Mike Rappaport

I enjoyed Greg Weiner’s post on the Judicial Dilemma of Originalism, which has received some attention. Greg does a strong job of describing the conservative case for judicial restraint (as the competitor to conservative originalism). My problem, however, is that I don’t really understand the conservative case for judicial restraint.

Greg writes:

It arises from man’s status as a political animal. It elevates to the status of constitutional principle the conservative’s dispositional distaste for whining, which is not to stigmatize all objections to losing positions as whining. Some objections are legitimate. It is, rather, to say that not all losses before legislatures are to be retried before courts, that part of the price of living in a political community is that one must accommodate oneself to the needs, preferences and tastes of others. One wins some battles but also loses others and one is not entitled simply to stomp off the playground—still less to shutter the playground for others—in the latter case.

Fair enough.

Here is the problem. Majority rule – especially majority rule at the national level – is not really a conservative principle, unless it is significantly cabined by other principles. But judicial restraint toward Congress by federal courts will allow Congress largely to do as it pleases.

I understand why conservatives reacting to the Warren and Burger Courts would have favored judicial restraint. At a time before originalism had become popular, judicial restraint was a powerful way of criticizing an activist court based on a theory that made sense in a democracy. But the fact that judicial restraint made sense at a particular time for conservatives does not mean it is a principled or long term approach when it comes to constitutional interpretation.

Let’s remember that the New Deal – which was a profoundly unconservative movement – was made possible through judicial restraint. Congress could do it as it pleased, departing from the traditional limitations on the federal government, undermining the role of the states and the rights of individuals.  In fact, judicial restraint was advocated by the progressives -- by for example Brandeis and Holmes -- and I don't think they were pursuing a conservative constitution.  Modern advocates of judicial restraint, like Judge Bork, are ironically the descendants of these progressives.

That majority rule often leads to bad and unconservative results would have been no surprise to traditional conservatives. Aristotle and Burke both understood the dangers of majority rule. Instead, traditional conservative employed majority rule as a portion of a wider set of governing principles.

If one wanted to pursue a conservative constitutional jurisprudence that was distinct from originalism, then it would look much like the following. It would involve limits on the legislature (limits that were stronger than conferring deference on the legislature). It would involve constitutional provisions that incorporated traditional principles, and that changed their meaning only gradually in accordance with popular and customary understandings. It would involve a balance between the federal government and the states, and would employ a significant role for local governments. It would involve an attempt to govern as much as possible through consensus. And finally it would involve majority rule as a part of this wider scheme of governing principles.

Judicial restraint in the United States would not lead to the above arrangement.

(Cross posted at the Liberty Law Blog)

Joel Alicea (and Mark Tushnet) on Intellectual Diversity in Law Schools
Michael Ramsey

In the Washington Times, Joel Alicea (Harvard Law School '13): The Academy's War on Free Thinking.  From the introduction:

"One cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections," said Harvard Law School Dean Martha Minow at a recent Federalist Society conference on intellectual diversity in law schools . Unfortunately, this foundational tenet of legal education is not realized in the nation’s leading law schools, including Ms. Minow‘s, where students learn a narrowly progressive view of the law from a predominantly leftist faculty. Our nation’s top law schools are failing their students, and in a country whose future will be shaped by those students, it is an urgent problem that we should demand law schools address.

And from the conclusion:

If our elite law schools are to serve their students and the country well, they must actively seek out the best minds representing all points of view. That does not imply giving conservative candidates preferential treatment when making hiring decisions; all candidates must be held to the same academic standards. It does mean, though, that law schools should be eager to hire scholars who represent perspectives that are absent from their faculties. Law school campuses would have a richer and more vibrant intellectual life as a result, and the country would be the primary beneficiary.

(Via Nick Rosenkranz at Volokh Conspiracy).

As a counterpoint, here and here is Mark Tushnet (Harvard) at Balkinization (last month) commenting on the intellectual diversity conference Alicea's op-ed mentions.  From the first post,

Remarkably, the other participants [in the conference] appear to believe that the market for legal education doesn’t work, and that students have to be paternalistically protected against the bad consequences of their choices. My comments were directed to the existence of a market across institutions. The idea is that institutions offer bundles of attributes to consumers (applicants), and each consumer chooses the bundle that, from her point of view, maximizes the achievement of her preferences as she understands them at the moment of choice. I used Pepperdine as my primary example, because it’s a school with a strong public law faculty that leans more conservative than other institutions (but I could have offered others – San Diego and St. Thomas in St. Paul, for example). So, consider a conservative student applying to Harvard and Pepperdine. If she gets in to Harvard, she’s certainly going to get into Pepperdine, and the LSAT and GPA numbers suggest pretty strongly that she’ll do better at Pepperdine than at Harvard. So, her choice is between (a) a liberal-leaning school where she’ll probably do all right but might not be at the top of the class, and the job opportunities associated with having a Harvard degree and (b) a conservative-ish law school where she’ll probably do quite well, with the job opportunities available to a student at the top of Pepperdine’s class. It’s not at all clear to me that, given across-institution diversity, there’s a problem with the market in legal education. ...
Alicea and Tushnet focus on the student side of this issue -- a related and potentially more serious problem for law schools, I would suggest, is on the scholarship side.  If law faculty aren't exposed to the full range of thinking on the issues that interest them, their thinking will remain underdeveloped and unpersuasive to those who don't already share their views.


Greg Weiner Responds on Originalism and Judicial Restraint
Michael Ramsey

At Liberty Law blog, Greg Weiner has these further thoughts on originalism and judicial restraint, in response to comments by me and Chris Green.

In general I think there's a good bit of agreement among the three of us.    But here is a further suggestion (more in response to Chris Green):

There are different ideas of restraint.  One, I agree, operates on the dimension of how much proof a judge needs to intervene against the political branches.  As Chris says, this is not so much in tension with originalism (or with any other philosophy of interpretation) as it is a method of implementation.  Thus a judge could be a restrained originalist (requiring very high proof of the original meaning before intervening) or an activist originalist (requiring only very slight confidence in the original meaning in order to intervene).  And, as he says, this also works as a description of implementing non-originalist interpretive methods.

I think, though, that there is also another dimension to restraint that makes it more of an independent theory of adjudication.  It holds that judges should not (or should very rarely) intervene against a considered decision of the political branches on issues of major social and economic legislation regardless of the level of confidence the judge has in the original meaning (or whatever approach to interpretation the judge is using).  For this type of restraint, the key lies in the consequences of the decision: if the consequences are far-reaching, the judge should be especially hesitant to act.   This approach draws strongly on the idea of democratic legitimacy that Greg Weiner discusses.  Its core principle is that unelected judges should not be making major policy decisions, period.  This core principle I think best captures the restraint argument in, for example, both NFIB v. Sebelius and in the same-sex marriage cases.  In both cases, and others like them, the concern is not so much that the legal argument in favor of judicial intervention is not as strong as it could be; rather, the concern is that these decisions should be made democratically.

As Greg Weiner recounts, this appeal to democracy was a central argument of the anti-Warren Court originalism.  But the problem (as he says) is that even "restrained" originalism -- that is, in Chris Green's sense, originalism that requires very high proof of original meaning to intervene against the political branches -- will still find many occasions to intervene.  The modern political branches want to do many things that have broad consequences and are fairly clearly unconstitutional under the original meaning.  In those cases, the tension between originalism and restraint is most manifest.


Stephen J. Lubben: The Bankruptcy Clause
Michael Ramsey

Stephen J. Lubben (Seton Hall University - School of Law) has posted The Bankruptcy Clause (Case Western Reserve Law Review, Vol. 64 (Forthcoming)) on SSRN.  Here is the abstract:

In the contest for least studied part of Article I, section 8, the Bankruptcy Clause certainly might win. We have lived with a permanent bankruptcy law since the end of the Nineteenth Century, yet efforts to understand the Clause typically extend little further than an assumption that the Clause is the bankruptcy counterpart to the much better-known Commerce Clause.

To the extent the Bankruptcy Clause is given any thought at all, the modern conception of the Clause is to assume it part of a larger Hamiltonian effort to federalize the economy: the Commerce Clause, the Bankruptcy Clause, and the Contracts Clause, combined perhaps with the Supremacy Clause and the Necessary and Proper Clause, working together to provide that the most important aspects of commerce are federalized, and kept from piecemeal regulation by the states. Indeed, this conception has probably been the most common understanding for almost a century.

That may have been the framers intentions, and it works well in explaining the recent past, particularly since the New Deal, but struggles as an explanation once we remember that Congress only rarely exercised its powers under the Bankruptcy Clause for almost a century after the Nation’s founding.

It also neglects the understanding of the Bankruptcy Clause that developed shortly after ratification: namely, that Congress’ powers with regard to insolvency were simply to impose uniformity, and that the states continued to enjoy full power to enact bankruptcy legislation that would apply to debtors within their realm.

The Supreme Court’s 1819 decision in Sturges v. Crowninshield, striking down a New York bankruptcy law under the Contracts Clause, upended this. But the issue remained contested – and thus the need for a national bankruptcy law debated – until the Gilded Age. By this time, relations between the states and the federal government had been hugely revamped by the Fourteenth Amendment, which made the original “Hamiltonian” project more consistent with the overall conception of the Constitution.

In this article I argue that the only way to really understand the Bankruptcy Clause is to relearn its history. Central to the new understanding of the Clause I suggest is understanding the ways in which American bankruptcy law as enacted by the colonies and the states diverged from that of England. This divergence was well-established by the revolution, and helps to explain why the federal 1800 Bankruptcy Act, which was heavily reflective of English bankruptcy practice, was so ill-received.


James Pfander & Nassim Nazemi: Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Nassim Nazemi (Northwestern University School of Law) have posted Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793 (Northwestern University Law Review (Forthcoming)) on SSRN.  Here is the abstract:

Adopted in 1793, the Anti-Injunction Act (AIA) has come to symbolize the early republic’s concern with protecting state court autonomy from an overbearing federal judiciary. Most modern observers encounter the AIA and its seemingly absolute prohibition of “writs of injunction” to stay state court proceedings as an absolute barrier to federal interposition. Whatever their view of the rise of judge-made exceptions to the AIA, all agree that the origins of the Act were, as the Supreme Court itself observed, “shrouded in obscurity.” In an effort to peel back the obscuring shroud, we return to an eighteenth century world in which separate courts of law and equity exercised concurrent jurisdiction over the same dispute and courts of equity secured their role through the almost-routine issuance of injunctions to stay proceedings at law. An excellent example of such stay litigation, and the likely trigger of the AIA’s adoption, unfolded in the North Carolina state and federal courts, as the Pennsylvania-based financier and founder Robert Morris attempted to stay the enforcement of an adverse state court judgment. Far from obscure, we find that the language of the AIA was likely drafted to address the specific problem of federal-state concurrency laid bare in Morris’s case, Morris v. Allen. By limiting its restriction to “writs of injunction,” the AIA barred original federal interposition but left the federal courts free to issue ancillary stays to protect federal jurisdiction and federal decrees. Reclaiming this lost distinction between original and ancillary injunctive relief calls for a fundamental reconsideration of the place of the 1793 Act in the legislative output of the early republic. Far from the absolute bar that it later became in the hands of twentieth century jurists such as Felix Frankfurter, the 1793 Act was drafted to provide a nuanced solution to a very real problem of federal-state judicial relations that the merger of law and equity has since obscured from view.


John Elwood on the Recess Appointments Case: "Battle is Joined"
Michael Ramsey

At Volokh Conspiracy, John Elwood: Noel Canning Recess-Appointments Case: Battle Is Joined (reporting that the respondents have filed their response to the cert petition in NLRB v. Noel Canning, available here).

Elwood comments:

The Noel Canning brief doesn’t address the existence of a circuit split or that this case presents an adequate vehicle for resolving the issue.  Instead, it basically focuses on the merits, giving a preview of its merits brief.  Within the strictures of the relatively low word count of cert.-stage filings, it sets forth a full-throated originalist rejoinder to the arguments in the petition.

On timing he observes:

If the government files its reply brief by June 4, this case will be considered at the June 20th Conference, the last scheduled Conference before the summer recess (although the Court routinely holds an unscheduled “mop up” Conference after that one).

RELATED: Rob Natelson emails:

I have just submitted a revision of the Recess Appointments Clause article to SSRN. [Ed:  The Origins and Meaning of 'Vacancies that May Happen During the Recess' in the Constitution's Recess Appointments Clause.]  This revision takes into account the recent New Vista (Third Circuit) decision ... It also takes into account some reviewer suggestions. 

I recently was able, with the help of the Denver Public Library, to access a substantial new body of Founding-Era legislative proceedings, and these have been added to the footnotes.

Finally, the new version examines the government's claims in the Noel Canning and New Vista litigation that three Founding-Era Vermont, Pennsylvania and congressional references to "the Recess" were to intra-session recesses. As it turns out, those claims are factually incorrect; all three recesses were inter-session. (The New Vista court, unfortunately, made the same mistake as to the Vermont and Pennsylvania recesses.)

AND: In the Washington Post, George F. Will: Appeals Court Limits Labor Board's Lawlessness.


More on Weiner on Restraint and Originalism
Chris Green

Mike notes below Greg Weiner's argument that originalism is in tension with judicial restraint. But as I explain here, I don't think that's the right picture. Originalism is a theory about what the Constitution is--to wit, that it is unchanging and fixed, as to important attributes, at the time constitutional provisions are adopted. But restraint is a theory about what standards should be used to assess the Constitution, and the distribution of authority to enforce it. Those standards and that distribution of authority can be applied to either an originalist or a non-originalist constitution.

We might think of the originalist controversy as a debate about what to put under a microscope--something dead, or something living. But issues regarding restraint concern what kind of microscope to use to look at that something: what standards of fuzziness we will demand, for instance, to generate adequate experimental data. We might use the same microscope with different objects, or look at the same object with different microscopes.

Weiner notes, "The question for the restrained judge is ... not whether he or she believes a law enacted by majorities is constitutional. It is whether there is any reasonable interpretation according to which it might be." (The any-reasonable-interpretation understanding of judicial restraint is Level 2 on the activismometer, though a moment later he refers to a willingness to act in "clear-cut cases," suggesting Level 3.) 

Originalism does not entail such a restraint principle, to be sure, but neither is it in tension with it. Originalism (and non-originalism) are ways of filling in the meaning of "constitutional"--e.g., either as "consistent with the original meaning" or as "consistent with the evolving principles of the common-law constitution."

So, a restrained originalist would say, "The question for the restrained judge [like me] is ... not whether he or she believes a law enacted by majorities is [consistent with the original meaning] . It is whether there is any reasonable interpretation according to which it might be." The restrained living constitutionalist would say, "The question for the restrained judge [like me] is ... not whether he or she believes a law enacted by majorities is [consistent with the evolving principles of the common-law constitution]. It is whether there is any reasonable interpretation according to which it might be."

Likewise, the non-restrained originalist would say, "I don't care what a reasonable person could think about the original meaning; I want to enforce the actual original meaning." The non-restrained non-originalist would say, "I don't care what a reasonable person could think about the evolving principles of the common-law constitution; I want to enforce the best interpretation of those principles."

Weiner is definitely right that originalism and restraint are "not coterminous," but neither are they necessarily in tension, I think, such that conservatives must "take sides" with respect to them. There are two controversies with two sides (at least) each.