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59 posts from September 2013


Aaron Knapp: James Wilson and the Birth of American Jurisprudence
Michael Ramsey

Aaron T. Knapp (Boston University - Department of History) has posted Law's Revolutionary: James Wilson and the Birth of American Jurisprudence (Journal of Law and Politics, forthcoming) on SSRN.  Here is the abstract:

This intellectual history of oft-forgotten founder James Wilson contends that as an outgrowth of his peculiar anti-Publian constitutionalism, Wilson’s post-ratification jurisprudence endeavored conceptually to reconcile American Law with the American Revolution in ways that even his ablest commentators have failed to appreciate but which boast a significance in the history of American legal thought that should command the attention of legal and constitutional historians alike. Spanning the period from 1774 to 1798, the Article’s historical analysis of Wilson’s ideas over time complicates prevailing literature on popular sovereignty’s origins and influence in post-Revolutionary America, revises influential scholarship interpreting pre-Marshallian Federalist jurisprudence in the 1790s, and sheds new light on the role of civic virtue in early American constitutional culture.


Sasha Volokh on the Revival of the Contracts Clause
Michael Ramsey

At the Reason Foundation website, Alexander Volokh: The Revival of the Contract Clause.  From the introduction:

Faced with public pension crises, many states have recently enacted pension-reform laws—increasing the rates at which their employees must contribute to their pension funds, reducing or eliminating cost-of-living adjustments, increasing the retirement age, or even converting to an entirely different type of pension system. Public employees and retirees have aggressively challenged these reforms, arguing that the makeup of their pension plans was part of the employment contracts they agreed to years ago. One of their main weapons is a relatively forgotten part of the constitution: the Contract Clause.

(Via Volokh Conspiracy).


Greg Weiner: Reading Madison in Damascus
Michael Ramsey

At Liberty Law Blog, Greg Weiner: Reading Madison in Damascus.  From the introduction:

In the series of debacles that is the situation in and reacting to Syria, one emphatic triumph ought not go unheralded. The antique apparatus known as the Philadelphia Constitution works, which is to say the machinery—when, as rarely, cleaned, oiled, wound and deployed—operates precisely as advertised. In this case, it inhibited a war the people did not support through the mechanism—the House of Representatives—intended to register their views.

That vindicates one Madisonian theory, penned under the pseudonym “Helvidius” and demanding a long-since foregone seat for Congress at the grown-up table when foreign policy is formulated. Another theory of the Virginian proved correct was his post-constitutional observation that the people might sometimes be necessary to control the passions of the governors rather than the other way around.


Andrew Hyman on Natural Born Citizens
Michael Ramsey

Andrew Hyman writes:

I've noticed some discussion recently (http://originalismblog.typepad.com/the-originalism-blog/2013/08/is-ted-cruz-a-natural-born-citizen-againmichael-ramsey.html) about whether Ted Cruz would be eligible for the presidency, given that he was born in Canada, and only his mother was then a U.S. citizen.  My answer is "yes" (though that's not an endorsement!).

To understand what a "natural born citizen" is under the U.S. Constitution, it seems like four texts are essential.  First, consider this British statute of 1708:

"The children of all natural born subjects born out of the ligeance [i.e. allegiance] of Her Majesty Her Heirs and Successors shall be deemed and adjudged to be natural born subjects of this Kingdom to all intents, constructions, and purposes whatsoever."

Second, consider this British Statute of 1730:

"[A]ll Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty [i.e. 1708], and of this present Act, be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever."

The third text is the U.S. Constitution of 1789:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

And, the fourth text is this U.S. statute of 1790:

"And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed."

Looking at these four texts, some conclusions are obvious.  First and foremost, you don't have to be born in the United States to be a "natural born citizen"; that is clear from both the 1708 and 1730 Acts.  Second, the 1730 statute required that the father rather than the mother had to be a citizen in order to convey natural born citizenship to a child born abroad, but both the Constitution and the 1790 Act tellingly avoided such a requirement.  Third, the words "natural born citizen" in the Constitution do not, by themselves, seem to suggest anything about gender.  And, lastly, the four words "of the United States" in the constitutional clause do not refer to the words "natural born citizen" in that same clause, which strongly suggests that the word "natural" serves a similar function to those four words ("of the United States"); indeed, an archaic meaning of the word "natural" is "native".


An interesting hypothetical (suggested by Mike Ramsey) is that Congress declares everyone henceforth born in Cuba to be a citizen of the United States from birth.  So would that mean each of them would be qualified to one day become President of the United States?  My answer would be "no" because of the word "natural"; they would be neither native born citizens nor citizens born to natives.

(Related note:  For those interested in the issue, I recently came across this scholarly post at Red State from a year or so ago that covers the post-ratification sources well, although it does not directly take up the Ted Cruz issue:  On this “Natural Born Citizen” Issue, Part I: From Alexander Hamilton to Lynch v. Clarke).

Ronald Krotoszynski: A Constitutional Analysis of the Enactment of Bills by Implication
Michael Ramsey

Ronald J. Krotoszynski Jr. (University of Alabama - School of Law) has posted Deconstructing Deem and Pass: A Constitutional Analysis of the Enactment of Bills by Implication (Washington University Law Review, Vol. 90, No. 4, 2013) on SSRN.  Here is the abstract:

Since 1933, the U.S. House of Representatives has maintained a procedure, the self-executing rule, that permits a single floor vote to pass multiple independent bills. Using this procedure, the House can pass a bill and, at the same time, “deem passed” entirely separate bills via a single floor vote. Some legal scholars have argued that this procedure is constitutionally unobjectionable, provided that members of the House clearly understand the legislative effects, whether singular or plural, of a particular vote. Others, however, have argued that the device violates the Constitution because the House and Senate do not vote on same question. Careful consideration of the relevant constitutional text and legislative history reveals that the question does not have an easy or obvious answer. Perhaps surprisingly, the Constitution does not speak with clarity on whether a single floor vote may pass multiple, separate bills, nor does the Constitution’s legislative history provide any clear guidance on this question. Instead, the answer depends on whether one generally embraces formalism or functionalism in one’s separation of powers analysis. From a formalist perspective, the House and Senate must not only adopt the same identical text, but must also vote on the same question. From a functionalist perspective, however, the precise procedure used to approve the text should not matter so long as both the House and Senate take political responsibility for adopting a particular statutory text. Given the relatively weak reasons that undergird the House’s use of the deem and pass procedure — namely a desire to avoid political responsibility for unpopular legislation by rendering electoral accountability more difficult — the formalist position has much to recommend it.


Does Colorado Have a Republican Form of Government?
Michael Ramsey

At the Excess of Democracy blog, Derek Muller (Pepperdine Law) has an interesting post on Kerr v. Hickenlooper, the case claiming that Colorado lacks a republican form of government, as required by Article 4, Section 4 (the guarantee clause).  As he explains:

In 1992, Colorado voters, by initiative, enacted a "Taxpayer Bill of Rights" (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.

The district court rejected defendant's argument (at least as an initial matter) that claims under the guarantee clause are non-justiciable.  The Tenth Circuit heard oral argument last Monday.

Professor Muller thinks that the case is a non-justiciable political question.  I agree, but on somewhat different grounds.  He argues:

The second prong [of Baker v. Carr, a key political question precedent] ... is salient: "a lack of judicially discoverable and manageable standards for resolving it." Defining a "Republican Form of Government" is not an easy task, and certainly not one the judiciary has undertaken in over 200 years. 

Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sit[u]ations in which it might be justiciable--such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.

I disagree.  The fact that a question is hard should not make it non-justiciable.  Muller quotes a law professors' amicus brief (written by some people with whom I often don't agree, including Erwin Chemerinsky):

The briefs submitted by the State and their amici, for example, present arguments about how to interpret the language of the Guarantee Clause. The Response brief provides a set of counterarguments on the same question. Both sides support their arguments with historical evidence and judicial precedent. These arguments are precisely the type that courts regularly consider in interpreting the Constitution. 

That seems right to me, and it is reinforced by the Supreme Court's opinion in Zivotofsky v. Clinton, which appeared to cut back on Baker quite a bit and emphasized the Court's core role in resolving questions of constitutional meaning.  The difficulty in finding the original meaning of "Republican" seems no different in kind from the difficulty in finding the original meaning of a host of clauses whose meaning is not apparent on their face.  A non-justiciability claim cannot arise wherever a provision's meaning is obscure -- or else many clauses, including maybe the whole Fourteenth Amendment, would be non-justiciable.  To be sure, if a clause is, upon close investigation, found to be completely meaningless (as in Robert Bork's "ink blot" example) it would be rightly found non-justiciable.  But where there are arguments over competing meanings, the court's job is -- ordinarily -- to pick the best meaning, not to abdicate.

Muller responds:

That, flatly, cannot be the test. The parties in Nixon [v. United States] disputed whether a court could interpret the word "try," and the parties, of course, each had their own set of arguments about what it means to "try" a party for purposes of impeachment. The Court--while recognizing that the task was left "sole[ly]" to the House--refused to entertain a question of the definition and usurp the role of Congress, and this question of judicially-manageable standards "strengthen[ed] the conclusion" that the matter was left to another branch other than the judiciary.

Although I think the Chemerinsky brief is right in the general case, I think Muller is right here -- and the key precedent is not Baker (a thoroughly non-originalist and ad hoc decision) but Nixon.   A proper textually founded political question doctrine arises not from some vague idea that the case is too hard (or too embarrassing, or too controversial) but -- as in Nixon -- the idea that the decision is textually committed to another branch (that is, committed by the particular phrasing of the clause at issue).

That seems to be the case with the guarantee clause.  It provides:

"The United States shall guarantee to every State in this Union a Republican Form of Government . . . ."

This reads like an obligation placed on the political branches of the U.S. government, not the judiciary.  It would be a different matter if the clause had used language parallel to Article I, Section 10, whose prohibitions on the states, expressed as direct legal commands, are clearly justiciable; it might have said: "no State shall have anything but a republican form of government."  That would sound too like an ordinary legal command, and it would not become any less so simply because there might be some ambiguity in the word "republican."  But the awkward and indirect phrasing of the guarantee clause suggests that it is not an ordinary legal obligation placed on the states for the courts to enforce.   Rather, it is a guarantee effectuated through political action of "the United States" as a whole -- and a potentially powerful one: as a result of the clause, for example, Congress could overturn non-republican aspects of state governments (and courts would enforce such laws).

(On the merits, Rob Natelson argues powerfully that the Colorado initiative is consistent with a republican form of government as the founding generation understood that term.)



Joel Alicea on Real Judicial Restraint
Michael Ramsey

In the Fall 2013 issue of National Affairs, Joel Alicea has this essay: Real Judicial Restraint -- posing the question:

What is judicial restraint? And should the conservative legal movement affirm it? The answers to these questions must be understood through the prism of originalism, which for better or worse is the default theory of legal conservatism. The principal contenders for control over the movement's future all claim as their foundation the conviction that judges must enforce the original meaning of the Constitution. So does originalism demand judicial restraint, or is originalism undermined by such restraint?

(With a tour through the philosophies of Robert Bork, James Bradley Thayer, Keith Whittington and Randy Barnett, among others).


William Jacobson on Natural Born Citizens
Michael Ramsey

From earlier this month, William A. Jacobson (Legal Insurrection) has this impressive post -- actually a long scholarly essay -- on the eligibility clause: natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz.  Short version: he thinks there is not a clear case for ineligibility of any of the three.  (Quite an impressive set of comments too, although the vitriol runs pretty high).

My thoughts are here (regarding Cruz). 

As to Jindal and Rubio, I think there is no substantial textualist/originalist argument against their eligibility, as they were both both in the United States (although to non-citizen parents).  Whatever else it did, English law considered a "natural born subject" to be anyone (other than the child of a foreign ambassador or invader) born within English territory, without regard to the citizenship of the parents.  Absent evidence to the contrary, it seems appropriate to read the constitutional language in light of its English predecessor.  True, the Constitution did not always follow the English law background (and in some cases aggressively departed from it); and true also the framers saw a substantial difference between "subject" and "citizen".  But as Professor Jacobson says, there isn't any material evidence that the founding era had a different view of what it meant to be "natural born" than the background English use.

The problem I have with Professor Jacobson's analysis (with which on the whole I agree) is that he seems to equate "natural born citizen" with "born citizen" (omitting the "natural").  As discussed in my post on Senator Cruz, I think it requires a bit of work to get to that conclusion.

Jean Galbraith: International Law and the Domestic Separation of Powers
Michael Ramsey

Jean Galbraith (Rutgers, The State University of New Jersey - School of Law-Camden) has posted International Law and the Domestic Separation of Powers (99 Virginia Law Review 987 (2013)) on SSRN.  Here is the abstract:

This Article uncovers the forgotten role that international law has played in shaping the separation of foreign affairs powers between Congress and the President. Although the use of international law in constitutional interpretation is viewed today with deep skepticism, historically international law shaped how constitutional actors, especially ones outside the courts, understood the allocation of foreign affairs powers between the political branches. Importantly, international law did not play a neutral role in the power struggle between the branches. Rather, it bolstered the President’s expansive foreign relations powers vis-à-vis Congress in ways that continue to affect the distribution of powers today. This history holds lessons for contemporary constitutional interpretation, including the extent to which international law should constrain the President.


More on the Equal Protection Clause and the Federal Government
Mike Rappaport

My post on the fact that the equality requirement did not apply to the federal government, which was expanding on Mike Ramsey's post, has generated some discussion.   See these two posts on the Volokh Conspiracy by Will Baude and by Ilya Somin.

One last point.  One way that the equality requirement might apply against the federal government is through due process.  The Due Process Clause was applied against the federal government in the 5th Amendment in 1791 and against the states in the 14th Amendment in 1868.  Thus, if one can find an equality requirement in due process, one might have an equality limit on the federal government.

But the leading articles on due process claim that the 1791 Clause does not impose an equality requirement.  Chapman and McConnell in the Yale Law Journal claim that the 5th and 14th Amendments both impose the same requirement and that requirement does not establish a general equality requirement.  Ryan Williams, also in the Yale Law Journal, argues that the 14th Amendment may impose an equality requirement, but denies that the requirement exists in the 5th Amendment -- and therefore it would not apply against the federal government.