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60 posts from October 2013


Gordon Wood on History and Originalism
Mike Rappaport

Will Baude writes about Gordon Wood’s views on originalism. He quotes Wood as stating:

[I]t’s impossible for jurists, law professors, and Supreme Court justices — or judges anywhere — to really use history. It simply would not work. Judges have to invent another kind of history: we call it “law office history,” or “history lite.” It’s a necessary fiction, and I don’t consider that to be a bad thing. It’s a necessary fiction for judges and other jurists to get along with their work—they need some kind of history to work with. History is much too complicated to be used effectively by judges and the courts.

Will writes that “Gordon Wood’s remarks, while mixed, were much more accommodating than [Will] expected.” I agree with Will, that Wood was more accommodating than I expected, but still I have real problems with Wood’s remarks.

Most importantly, I can’t tell exactly what Wood is saying. One possibility is that he is saying that originalists (and law professors generally) use history to buttress their cases and therefore they can’t really be true to the history. But that’s ok, because the two enterprises differ.  Historians are after truth, but law professors seek to persuade for political and legal purposes.  For example, Wood criticizes Scott Gerber’s view that the Framers were committed to the separation of church and state, noting that there were many established churches and other interactions between church and state at the time of the Framing. But then Wood seems to excuse Gerber on the ground that law professors have different purposes.

Well, if that is what Wood means, I completely disagree. Good originalism should follow the actual history and the claim that the Framers were commited fully to the separation of church and state is simply bad history. Originalists are supposed to make accurate claims and I don’t want Wood making excuses for originalists on the ground, well, these lawyers have different purposes. Thanks, but no thanks.

But at other times, Wood seems to have something else in mind. He seems to believe that there is a division of labor and that law professors need to have a simpler understanding of history than historians do – history lite – but that is ok, because they can’t be expected to have the same full understanding and couldn’t use history for practical purposes if they did. This is a bit better than the first possibility. I agree that law professors can’t be both historians and lawyers, and they might have to sacrifice a bit of history. Still, I would resist this possibility.

Finally, at yet other times, Wood appears to recognize that original public meaning originalists are not interested in all aspects of history, but mainly the original meaning of the words. He recognizes that this greatly reduces the burdens that originalists must meet in order to have an adequate understanding of history. This is the closest to my view.

Originalism does not require too much of law professors. Originalist scholars can investigate the original meanings; they don’t need to fully understand the history the way that a historian needs to. Thus, they can practice, not really a form of history lite, but rather a subspeciality of history – an investigation of legal meanings. While this is hard, it does not require that originalists be superhuman or understand the past to the full extent that a historian needs to.

(Cross posted at the Liberty Law Blog)

Richard Fallon: Interpreting Presidential Powers
Michael Ramsey

In the current issue of the Duke Law Journal, Richard H. Fallon Jr. (Harvard Law School) has the article Interpreting Presidential Powers (63 Duke L.J. 347 (2013)). Here is the abstract:

Justice Holmes famously observed that "[g]reat cases . . . make bad law." The problem may be especially acute in the domain of national security, where presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates. On the one hand, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes. On the other hand, to credit the authority of executive precedent risks leaving the president dangerously unbound.

To address the conundrum posed by executive precedent, this Article proposes a two-tiered theory for the interpretation of presidential powers. Framed as an analogy to a position in moral philosophy known as "threshold deontology," two-tiered interpretive theory treats rules that restrict executive power as normally inviolable, not subject to a case-by-case balancing analysis. Analogously to threshold deontology, however, two-tiered theory also recognizes that when the costs of adherence to ordinary principles grow exorbitantly high, extraordinary interpretive principles should govern instead and should result in the upholding of broad presidential power. For reasons that the Article explains, resort to extraordinary reliance on second-tier justifications for assertions of sweeping executive authority involves a legal analogue to "dirty-handed" moral conduct and should be labeled accordingly. And executive precedents set in extraordinary, second-tier cases should not apply to more ordinary ones. Through its conjunction of elements, two-tiered interpretive theory furnishes analytical and rhetorical safeguards against executive overreaching, but also allows accommodations for truly extraordinary cases.  

I think it might be easier to just enforce the Constitution as written, recognizing that it is likely to be violated in extraordinary circumstances.


Whelan on McGinnis and Rappaport’s Originalism and the Good Constitution: Part II -- Precedent

(This post is written jointly by John McGinnis and Mike Rappaport)

Ed Whalen objects to the treatment of precedent in our book Originalism and the Good Constitution. First, he questions our conclusion that Article III’s grant of judicial power provides authority for judges to apply precedent rules in constitutional decisionmaking. While he does not dispute our evidence that at the time of the Framing judges routinely applied rules of precedent in decisions interpreting legal texts, he says that this is no reason to suggest that this power encompasses constitutional precedents, because the legislature cannot overrule erroneous constitutional precedents, as it can erroneous statutory precedents.

But our book provides substantial evidence that the Framing generation, including many of its greatest figures, assumed that precedent would apply in the constitutional context as well. No one to our knowledge ever distinguished precedent in the statutory and constitutional context. While Ed correctly notes that constitutional precedent and statutory precedent have different consequences in some respects, the job of the originalist is not to determine for himself the best legal principles but to recover the content of the principles as they were understood at the time of enactment. And while undoubtedly errors can be more costly in the constitutional context, overruling them can also be more costly. Thus, the Framers’ recognition of precedent in the constitutional context cannot be said to be obviously foolish.

Second, Ed describes what he sees as alternative to our rules for reconciling precedent and originalism. Instead of respecting settled precedents, like those approving paper money, which it would be enormously costly to overrule, Ed suggests that the Court overrule such precedents while staying the effect of its decision to give the nation time to pass a constitutional amendment. With respect, we do not think this radical innovation is at all plausible. Courts lack any rule or indeed any legal calculus to decide the length of such an unprecedented stay. Moreover, forcing people to pass an amendment to enact what settled principles with enormous support would be at best annoying and would hardly advance originalism. Perhaps most worryingly, the time limit Ed introduces would encourage holdouts. The need to pass an amendment confirming paper money might well make the battle over the debt ceiling look like the deliberations over National Mothers Appreciation Day.

Our book shows how originalism is compatible with precedent and yet permits originalism to have a generative force that precedent does not. That is not only the Framers vision but the best way to make originalism a winning theory of interpretation.

(Cross posted at the Liberty Law Blog)

Steven G. Calabresi & Michael W. Perl: Originalism and Brown v. Board of Education
Michael Ramsey

Steven G. Calabresi (Northwestern University - School of Law) and Michael W. Perl (Northwestern University - School of Law) have posted Originalism and Brown v. Board of Education (Northwestern Law & Econ Research Paper No. 13-26) on SSRN.  Here is the abstract:

This article offers an originalist justification for the Supreme Court’s landmark decision almost sixty years ago in Brown v. Board of Education. We examine the thirty-seven State constitutions that were in effect in 1868, when the Fourteenth Amendment was ratified, and we conclude that three-quarters of the States in 1868 recognized access to a public school education as being a fundamental right at that time. Since the Fourteenth Amendment forbids racial discrimination with respect to fundamental rights, i.e. privileges or immunities of national and state citizenship, Brown v. Board of Education was correctly decided using the original public meaning approach of Justices Antonin Scalia and Clarence Thomas. We show that by 1954 fifteen of the Forty-Eight States had added clauses to their State constitutions specifically providing for racial segregation in public schools. A three quarters consensus about access to a desegregated education which existed in 1868 thus had vanished by 1954. We therefore suggest that Brown v. Board of Education finds more support in State constitutional law from 1868 than it does from State constitutional law in 1954. Contrary to the received understanding, Brown v. Board of Education is better justified using an originalist approach to constitutional interpretation than it is using a living constitution, evolutionary approach. The conventional wisdom about Brown v. Board of Education is thus shown to be completely and totally wrong.


Whelan on McGinnis and Rappaport’s Originalism and the Good Constitution: Part I -- The Normative Justification
Mike Rappaport

(This post is written jointly by John McGinnis and Mike Rappaport)

Ed Whelan has read our book and is kind enough to describe it as “an impressive work, rich with interesting and intelligent arguments.” And he writes, “Their book will surely play a prominent role in the ongoing debate over originalism.”

Ed does, however, offer some criticisms in his two posts on our book. In this and the next post, we will respond to some of his arguments.

First, Ed questions whether our consequentialist defense of originalism – as involving a good Constitution that should be enforced – is really the best normative defense of originalism. He first notes that we reject the notion that following the law is the best defense of originalism. He then states:

To state my point more affirmatively: I find much more appealing the normative argument for originalism that law professor Lawrence B. Solum makes in his long law-review article “Semantic Originalism” (pp. 149-160). That argument, at its essence, is that in a “reasonably just society” like ours, it’s wrong to lie about the meaning of the Constitution. . . . Even in the collapsing state of our culture, the proposition that it’s generally wrong to lie seems to me to retain broad appeal.

We are not exactly sure what Ed is proposing as the best normative defense of originalism. On the one hand, he might be arguing that we should follow the original meaning, because it is the law. If that is his argument, then we would point to Mike Rappaport’s earlier post rejecting this argument. In particular,

another problem with the argument that the original meaning of the Constitution is the law that it is not clear that it is true. What does it mean to say that the Constitution’s original meaning is the law? Certainly, people are in jail in the U.S. – lots of them – for violating laws that are inconsistent with the Constitution’s original meaning. More generally, nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.

But perhaps Ed means something else – perhaps he is basing his argument simply on the obligation not to lie. We have a couple of concerns about this.

First, if it turns out that the original meaning is the not the law – or at least not the only reasonable take on the law – because let’s say that the rule of recognition treats the nonoriginal meaning as the law, then judges need not be lying by enforcing a nonoriginalist constitution. They are enforcing the law and the law allows nonoriginal meaning. So long as they don’t say that the nonoriginal meaning is the original meaning, no lying need be occurring.

Second, even if judges are mistaken that the nonoriginal meaning can be the law, that does not mean they are lying about the matter. They could simply be mistaken. Now, one might say that judges should not be mistaken – of course, they shouldn’t – but they don’t know that they are being mistaken and so it is not clear how helpful that guidance would be.

Third, telling judges not to lie is not the same as telling them to enforce the original meaning. A judge might respond by admitting that he is not enforcing the original meaning. He then is not lying and is still not enforcing the original meaning. Of course, one might wonder whether the judges would be willing to admit this (and what the public reaction would be), but it is quite possible that they would admit it and then “the do not lie argument” would have no traction.   In fact, some judges now seem to come pretty close to admitting as much, such as Judge Richard Posner.  

(Cross posted at the Liberty Law Blog)

More on the Anti-Corruption Principle
Michael Ramsey

Rob Natelson comments (favorably) on this post by Seth Barrett Tillman: Rebutting the Claim that an “Anti-Corruption” Principle Should Re-Write the First Amendment.  (Via Instapundit.)

Zephyr Teachout comments (unfavorably): Parchment Barriers: Why Tillman and Natelson Are Wrong about the Anti-Corruption Principle.  (Thanks to Seth Barrett Tillman for the pointer.)


Jenny Lynn Sheridan: Copyright's Knowledge Principle
Michael Ramsey

Jenny Lynn Sheridan (Drexel University - Earle Mack School of Law) has posted Copyright's Knowledge Principle on SSRN.  Here is the abstract:

This Article argues that copyright jurisprudence has lost sight of the knowledge principle at the heart of the Constitutional justification for copyright. The Framers envisioned the objective of copyright as promoting the advancement of knowledge for a democratic society by increasing access to published works. Under what is best termed the "knowledge principle," access to existing knowledge is a necessary condition for the creation of new knowledge. Copyright jurisprudence has largely protected the interests of producers – from early booksellers to modern Hollywood film companies – failing to notice the central role of access to works as a necessary pre-condition to the creation of new works. The realities of the digital era further hinder the functioning of this mechanism. Ownership of copies of texts has morphed into a limited right of possession of digital files. Public libraries can no longer fulfill their mission of maximizing the circulation of materials in order to spread available knowledge among citizens. This Article proposes an alternative model to the conventional copyright theories, focusing on the critical role that access to knowledge resources plays in the dynamic processes at work in the production of knowledge and the creation of new works. In this model, public libraries would exercise non-waivable "fair access" rights on behalf of the public for the purposes of learning and education. These "fair access" rights serve to realign copyright with its Constitutional justification, and more importantly to support the knowledge creation process for the future of our democratic society.


Joseph Blocher: Firearm Localism
Michael Ramsey

In the current edition of the Yale Law Journal, Joseph Blocher (Duke Law School) has the article Firearm Localism (123 Yale L.J. 82 (2013)).  Here is the abstract:

Second Amendment doctrine is largely becoming a line-drawing exercise, as courts try to determine which “Arms” are constitutionally protected, which “people” are permitted to keep and bear them, and in which ways those arms and people can be regulated. But the developing legal regime has yet to account for one potentially significant set of lines: the city limits themselves. In rural areas, gun crime and gun control are relatively rare, and gun culture is strong. In cities, by contrast, rates of violent gun crime are comparatively high, and opportunities for recreational gun use are scarce. And from colonial Boston to nineteenth-century Tombstone to contemporary New York City, guns have consistently been regulated more heavily in cities—a degree of geographic variation that is hard to find with regard to any other constitutional right. This Article argues that Second Amendment doctrine and state preemption laws can and should incorporate these longstanding and sensible differences between urban and rural gun use and regulation. Doing so would present new possibilities for the stalled debate on gun control, protect rural gun culture while permitting cities to address urban gun violence, and preserve the longstanding American tradition of firearm localism. 


Katharine Roller: The Constitutionality of Using Eminent Domain to Condemn Underwater Mortgage Loans
Michael Ramsey

In the current edition of the Michigan Law Review, Katharine Roller (J.D. Candidate, May 2014, University of Michigan Law School) has the Comment The Constitutionality of Using Eminent Domain to Condemn Underwater Mortgage Loans (112 Mich. L. Rev. 139).  Here is the abstract:

One of the most visible and devastating components of the financial crisis that began in 2007 and 2008 has been a nationwide foreclosure crisis. In the wake of ultimately ineffective attempts at federal policy intervention to address the foreclosure crisis, a private firm has proposed that counties and municipalities use their power of eminent domain to seize "underwater" mortgage loans-mortgage loans in which the debt exceeds the value of the underlying property-from the private securitization trusts that currently hold them. Having condemned the mortgage loans, the counties and municipalities would reduce the debt to a level below the value of the property and then sell the new loans to private investors. This Note contends that while the condemnation of "underwater" mortgage loans is likely constitutional under the Takings Clause of the Fifth Amendment to the U.S. Constitution, it would likely not survive an Article I Contracts Clause challenge, despite the moribund nature of Contracts Clause jurisprudence over the last half-century.


Jonathan Adler on Textualism and Lawmakers' Errors
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler has this update on the tax-credit piece of Obamacare litigation:  Judge Rejects DoJ Motion to Dismiss Second Suit Against IRS Tax Credit Rule.  This is a statutory interpretation case but it has interesting broader implications; as Professor Adler explains:  

The IRS rule [giving tax credits for purchases on federal exchanges] contravenes the plain text of the PPACA, as the statute only authorizes tax credits (and subsidies) for the purchase of insurance in an exchange “established by a state” under Section 1311 of the law.  Federal exchanges are neither “established by a state” nor authorized by Section 1311. Further, as I detailed in an extensive article with Michael Cannon, there is no legislative history or other evidence to support the federal government’s interpretation of the law.  Supporters of the IRS rule claim that Congress could not have intended that Americans in dozens of states would be unable to obtain tax credits to help them purchase insurance. They’re right. Congress intended for every state to create its own exchange, as PPACA supporters said time and again, but states refused. Now that their assumption has been proven wrong, this does not provide an excuse to rewrite the plain statutory text.

This is an example of a common situation that textualist-originalists need to be able to deal with confidently.  The short of it is that lawmakers make mistakes.  When they do, the resulting text (law, Constitution, etc.) may lead to odd or even "absurd" results.  The question -- a core question for text-based originalism -- is when (as Professor Adler puts it) those results "provide an excuse to rewrite the plain statutory text."  The answer, I think, must be (again as Professor Adler indicates) not very often.  Otherwise judges would be able to claim a roving commission to rewrite statutes that seem (to them) odd or misconceived, and the text would lose its central place in interpretation.  The problem, though, is that indeed sometimes the lawmakers' error will be so colossal and obvious that not even the toughest textualist would enforce it.  (Consider the example, mentioned in Scalia & Garner's Reading Law [p. 236], of the Arkansas law that -- written to repeal all laws in conflict with a newly-passed statute -- instead repealed "all laws and part of laws" without limitation.)

Whatever the right rule (generally discussed as some version of the absurdity doctrine), I think the tax-credit cases show one category where the text should not be rewritten: where the lawmaker makes a mistake of fact or a mistaken prediction of consequences.