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52 posts from February 2014


Ilya Somin Responds on Private Use Takings
Michael Ramsey

Ilya Somin responds to my post on his work on private use takings: Debating the Original Meaning of "Public Use".

I don't think we disagree as much as he thinks we do.  As he says, I agree that the Fifth Amendment bars private-use takings as a result of the original settled meaning of "public use."  The question is whether anything happened in the nineteenth century to unsettle that meaning.  What I found especially interesting about his paper is that courts apparently did begin to allow private-use takings (premised on indirect public benefit) in the early- to mid-nineteenth century -- much earlier than I had thought.  My question (and I only meant to raise a question) is whether that is enough to cast doubt on the meaning of the Fourteenth Amendment as applied to takings.

After reading his post, I'm more clear that Professor Somin takes the view that the privileges or immunities clause directly adopts the textual right expressed in the Ffith Amendment (as it was understood in 1867-68).  If that's right, then I think he is on strong ground in saying that the adoption of a different meaning by a minority of courts probably isn't enough to unsettle it (although I'd like to know more about the circumstances of those decisions and how they were received and defended).  My main point, though, is that that's not the only way to understand the privileges or immunities clause.

He has the following especially interesting paragraph in response:

Moreover, it is strange to interpret incorporation as only including those rights that were “deeply rooted” in the practice of all or the vast majority of state governments. The whole purpose of incorporation (and of the Fourteenth Amendment more generally) was to force states to change some of their deeply rooted practices. For example, the incorporation of the First Amendment’s Free Speech Clause was intended to force southern state governments to stop their longstanding policies of censoring abolitionist speech and speech advocating equal rights for African-Americans. Under Ramsey’s approach, the incorporation of the First Amendment would not include the a right to engage in abolitionist speech, because a significant minority of states had a longstanding practice of repressing such speech. Similarly, part of the purpose of incorporating the Takings Clause was to prevent states from abusing the property rights of African-Americans and southern whites who had supported the Union during the Civil War. Allowing states to take property for whatever reasons they want was incompatible with that objective.

To be clear, the "deeply rooted" approach is not my approach (in the sense that I think it's correct): I only think it is a plausible view of privileges or immunities that should be considered.  But he makes some good points against it, and raises the important question of the extent to which the clause was supposed to change state practices.  In this regard, his point connects with an argument Chris Green made in his paper at the conference (which I'll mention in a separate post) that perhaps the Amendment could be read to adopt the views of the Northern states on what rights were "privileges or immunties."

Stanford Law School Conference on Originalism
Michael Ramsey

Starting today, the Stanford Constitutional Law Center will be hosting a conference on "The Role of History in Constitutional Law."  Here is the program:

Friday, February 28, 2014

1:15 pm The History of the Use of History in Constitutional Law – SLS Room 190

What role has history played in previous debates about constitutional interpretation? Has that role changed over time? If so, why? Can this historical perspective inform contemporary debates about the use of history in constitutional interpretation?

Bob Gordon (moderator), Stanford Law School
Lawrence Friedman, Stanford Law School
Mary Sarah Bilder, Boston College Law School
Suzanna Sherry, Vanderbilt University Law School
Ted White, University of Virginia School of Law

3:15 pm Originalism: Theory, Techniques, and Problems – SLS Room 190

How is originalism defined and practiced? What are its justifications, its methods, its strengths, and its weaknesses? How can the theory and practice of originalism be improved? Is there, and should there be, hope of methodological consensus?

Michael McConnell (moderator), Stanford Law School
Helen Irving, University of Sydney Law School
Keith Whittington, Princeton University, Department of Politics
Michael Paulsen, University of St. Thomas School of Law
Saul Cornell, Fordham University, History Department


Saturday, March 1, 2014

8:45 am Liquidation: Theory, Techniques, and Problems – SLS Room 190

James Madison wrote in Federalist No. 37 that laws “are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” What role should precedent and longstanding practice play in constitutional interpretation? What are the justifications, methods, strengths, and weaknesses of “liquidation”?

Jenny Martinez (moderator), Stanford Law School
Bernie Meyler, Stanford Law School
Neil Siegel, Duke University School of Law
Steve Sachs, Duke University School of Law
Will Baude, University of Chicago Law School

10:30 am History and the 14th Amendment – SLS Room 190

How can and should history affect our understanding of the14th Amendment? Does interpreting the 14th Amendment raise unique questions about the use of history in constitutional interpretation?

Nathan Chapman (moderator), University of Georgia Law School
Garrett Epps, University of Baltimore School of Law
John Harrison, University of Virginia School of Law
Kurt Lash, University of Illinois College of Law

12:00 pm Lunch – SLS Law Café

Keynote Lecture: Keith Whittington, Princeton University
A Critical Guide to Originalism

1:15 pm Case Studies in the Supreme Court’s Use of History – SLS Room 190

Focusing on several prominent historical controversies in the Supreme Court, how have the justices performed when using historical evidence? Are their methods and analysis faithful to the historical discipline? What do these case studies reveal about efforts to use history in constitutional law?

Elizabeth Magill (moderator), Stanford Law School
Eugene Volokh, UCLA School of Law
Jack Rakove, Stanford University, Department of History
Mike Ramsey, University of San Diego School of Law

2:45 pm History in the Future – SLS Room 190

How is the use of history in constitutional interpretation changing, and where might it be headed? Are scholarly views converging or diverging? How are others within and outside the academy likely to respond?

The Honorable Consuelo Callahan (moderator), Judge, U.S. Court of Appeals for the Ninth Circuit
Barry Friedman, New York University School of Law
Mike Rappaport, University of San Diego School of Law
Sai Prakash, University of Virginia School of Law

4:15 pm Closing remarks by Michael McConnell

Marc DeGirolami & Kevin Walsh: Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory
Michael Ramsey

Marc O. DeGirolami (St. John's University School of Law) and Kevin C. Walsh (University of Richmond - School of Law) have posted Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory on SSRN.  Here is the abstract:

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?

This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.

Josh Blackman comments: What do you mean Posner and Wilkinson have no legal theory?


Will Baude on Originalism and Accounting for Change
Michael Ramsey

Will Baude's post on this week's session of his course (with Eric Posner) on originalism: Originalism and 'Accounting for Change'.  He invokes this article by Originalism Blog co-blogger Chris Green: Originalism and the Sense-Reference Distinction.  Baude comments:

Green’s article remains one of the most important and underrated contributions to originalist theory. The key point is that in trying to figure out when changed circumstances can be accommodated by the text, we should look to what philosophers call the “sense” of the provision (as distinct from its “reference”). If the Constitution says that Congress can create “armies,” then those armies can be of all different sorts (including air units) even though there was no specific example of an aerial army at the time of the founding. If the Constitution refers to “property,” that can include cars, not just buggies. And if the Constitution refers to “cruel and unusual punishments,” then that depends on the test for cruel and unusual punishments, not simply a list of what punishments people might have thought flunked the test.

The result is that some change can be accommodated by the text and some cannot. It is a problem to be solved by looking at the text. As Green puts it, “The choice of language is a choice about what sorts of changes should make a difference to the set of future applications.”

Clarifying Originalism: A Response to Randy Barnett
Mike Rappaport & John McGinnis

We were surprised and puzzled by Randy Barnett’s post complaining that we had not fairly represented his views on originalism in our book Originalism and the Good Constitution.  His focus was on a few brief paragraphs in the introduction that could not comprehensively discuss these issues, but in any event we do not believe our comments were inaccurate or disrespectful.  We believe that Randy has misinterpreted our discussion.

1. Randy first objects that we refer to originalists who believe in construction as “constructionist originalists.”  Randy criticizes this as an “argument by labeling.”  Randy states: “I call myself an originalist (of the original public meaning variety).  Period.”  But there are many theories of originalism and not all of the original public meaning theories embrace construction.  A term was needed to refer to these theories and we do not believe there is anything derogatory about the term constructionist originalism.  Some people refer to these theories as the new originalism, but there are new theories of originalism, including ours, that do not embrace construction. Hence the need for a more specific term.

2. Randy also objects to our assertion that theorists who believe in contruction argue that interpreters are only bound by the original meaning when it is clear.  Randy writes that he “propose[s] no such ‘clear statement’ approach to constitutional interpretation.”  But we did not use the term “clear statement,” nor were we implying it.  One of the main differences between our original methods view and the view of advocates of construction is that original methods believes that close cases – where the evidence just slightly favors one interpretation (what we call a 51%-49% situation) – should be resolved based on the stronger interpretation whereas advocates of construction seem to believe that construction should resolve that situation.  Thus, in our view, advocates of construction apply construction rather than interpretation in cases where the evidence is close, thereby applying interpretation only when the evidence is clear.  Even those who adhere to construction have used the term “clear” in this sense.   

3.  Randy also objects to our claim that constructionists believe that when a provision is ambiguous or vague, interpreters may resort to extraconstitutional materials.  Randy appears to largely accept the substance of our claim as to vagueness, which he says may sometimes require construction.  While he objects to our claim about ambiguity, he still acknowledges that there may be rare cases of “irresolvable ambiguity” where construction is needed.  

More importantly, when we refer to ambiguity and vagueness here, we are not discussing the situation where a term is ambiguous or vague upon initial examination, as Randy seems to interpret us to mean.  What we mean is that the term is ambiguous or vague after some analysis.  If the ambiguity can be resolved, then this is not what we mean by an ambiguity here.  Thus, we continue to believe that advocates of construction hold that terms that are ambiguous or vague (after analysis) require construction.   

4. Randy also complains about our characterization that constructionist originalists want to replace original meaning with construction. He says they merely want to supplement originalism.  We do not think we are drawing a contrast between replacement and supplement in the phrase he quotes.  But assume we are: If we are right that originalists should always choose the better meaning, those who adhere to construction are replacing a bit of the original meaning though the use of extra-constitutional material rather than simply relying on the original meaning.  To be sure, we are here describing construction from within our theory, not within his. But how can we be expected to do otherwise?  We would note that Randy and others often describe our theory of original methods originalism as containing a theory of original methods construction (which Randy does in this very post), which is true within their theory, but not within ours. 

We are saddened by this dispute, because we are obviously on the same side as Randy on the most important matters of constitutional theory and we have the greatest respect for Randy’s contributions.  

The Originalist: The Play
Mike Rappaport

Yes, you read that right.  Justice Scalia is going to be the subject of a play entitled, The Originalist.

Saikrishna Prakash: The Appointment and Removal of William J. Marbury and When an Office Vests
Michael Ramsey

In the Notre Dame Law Review, Saikrishna Bangalore Prakash (University of Virginia School of Law) has the article The Appointment and Removal of William J. Marbury and When an Office Vests (89 Notre Dame L. Rev. 199 (2013)).  Here is the abstract:

Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s delivery argument was a post-hoc rationalization, having nothing to do with his actions in March of 1801. John Adams’s midnight appointments incensed Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities. To Jefferson, the failure to deliver commissions to some of those appointees mattered not a whit. What seems to have been far more significant is his sense that the justices of the peace served at his pleasure. Acting on this belief, he simultaneously removed them all and recess appointed most of them, save for more than a dozen, including William J. Marbury. This Article also addresses whether William J. Marbury and the other midnight appointees who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of considering these theories, the Article discloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed the second theory, namely that appointments vest before the act of commissioning. Moreover, well before Marbury v. Madison, the Adams Administration likewise concluded that appointments could vest prior to any commission being issued or delivered. Despite this convergence, the Article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he appoints. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the grantee may decide the means of exercising it.

(Via Dan Ernst at Legal History Blog)


USD Originalism Conference -- Third Paper: Ilya Somin on Takings for Private Use
Michael Ramsey

The third paper at the USD originalism works-in-progress conference was by Ilya Somin (George Mason University Law School) on Kelo v. City of New London and takings for private use.   Its central claim is that takings for private use (e.g., giving blighted land to a private re-developer) are precluded by the original meaning of the Fifth and Fourteenth Amendments.  Michael McConnell (Stanford Law) was the commentator.

This is the second chapter in Professor Somin's forthcoming book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press).  I don't think it is publicly available yet, but as it is fairly well developed I feel comfortable saying a few words about it.

The chapter is notable in reviewing state court decisions applying state versions of the Fifth Amendment takings clause in the early to mid-nineteenth century.  This is an important contribution and points the way for much future scholarship -- I think we are only beginning to understand what was going on in the early state courts regarding individual rights, and what state courts had to say may shed light both on post-ratification views of the language of the Bill of Rights and on the legal culture that formed the backdrop of the Fourteenth Amendment.  It's somewhat unclear, though, what conclusions we can draw from Professor Somin's research.

As to federal takings, the Fifth Amendment's text ("nor shall private property be taken for public use, without just compensation") seems reasonably clear.  First, the language seems to build in an assumption that private property could only be taken for public use.  True, the text does not literally say that, but the contrary reading would be absurd (why require compensation for public use takings but allow uncompensated private use takings?).  An assumption so evidently underlying the text seems to become part of the text, if the text is to be given its full context.  So I think Professor Somin rightly rejects the literalist argument of Jed Rubenfeld (see 102 Yale L.J. 1077 (1993)) to the contrary.  Second, "public use" seems on its face to require, well, "use" by the "public":  if the people (or the government as representative of the people) aren't entitled to do things on or with the property, as is the case when the property is given to a private entity, the amendment is not satisfied.  The fact that the public might benefit indirectly from the new private use (because, for example, it helps remedy a blighted area) does not make the "use" one by the public.

As Professor Somin recounts, most states had public use takings clauses paralleling the Fifth Amendment from the eighteenth century, and early practice seemed to conform to the obvious meaning of "public use."  Although sometimes property was taken and given to private entities, it was in an context where the public would have a right to use it after the taking -- for example, mill acts, by which land was taken by damming a stream to work a privately-owned mill, but the mill was required to be open to the public.  At this time, though, there apparently was not much state court litigation, so the interpretation of the Fifth Amendment rests mostly on its plain text.

As Professor Somin further describes, later state cases diverged -- some adopted a "narrow" view holding that public use meant use by the public, but others adopted a broader view that public use could be satisfied by indirect public benefits.  The former appears to have been the majority view. But the problem remains what conclusion to draw from that, once we turn to the Fourteenth Amendment and state takings.

Although Professor Somin does not put it this way, I think it depends on what one thinks of the privileges or immunities clause (which is where I assume most originalists would find a federal constitutional limit on state takings).  If the clause directly incorporated the text of the Fifth Amendment, then I think the result is clear.  The Fifth Amendment text itself is clear (as I argue above) and the mixed practice of the mid-nineteenth century is not enough to overturn it.

On the other hand, if the clause only constitutionalized deeply rooted practices (having significant overlap with but no direct correspondence with the actual text of the federal rights), then I think Professor Somin's claim is more problematic.  The divided practice he identifies seems not to show a deeply rooted right, even if the "narrow" view commanded a majority.  It seems doubtful that the minority of states adopting a broad view would have understood the Amendment as requiring them to conform their land use law to the majority approach.

In sum, this was an unusual paper in that it made me more skeptical of its claim than I had been before I read it.  I don't mean that as a criticism -- actually it's a tribute to Professor Somin's careful research and forthright reporting of his results.

Adam MacLeod: Who's Afraid of Legislative Intent?
Michael Ramsey

At Liberty Law Reviews, Adam J. MacLeod reviews Richard Elkins' new book The Nature of Legislative Intent (Oxford 2012): 

The most contestable premise of the Scalia/Garner book [Reading Law] is the premise that all sides accepted uncritically, namely that the job of a judge is not to discern legislative intent because there is no such thing (except perhaps as a useful fiction).  Richard Ekins’ recent book, The Nature of Legislative Intent, makes that premise difficult to maintain. Ekins skillfully defends the ancient idea that a legislature can intend to change law, and the job of courts is to give effect to that intent. The law created by a statute is not merely the assemblage of signs of which the text is constituted. Rather, law is the set of propositions to which the text points. Positive law is a reason for the actions of judges (and others) even when the text by itself is not fully determinate.

And here is the book description from Amazon: 

Are legislatures able to form and act on intentions? The question matters because the interpretation of statutes is often thought to centre on the intention of the legislature and because the way in which the legislature acts is relevant to the authority it does or should enjoy. Many scholars argue that legislative intent is a fiction: the legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent group intention. 

This book argues that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. The book argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation. 

Developing a robust account of the nature and importance of legislative intention, the book represents a significant contribution to the literature on deliberative democracy that will be of interest to all those thinking about legal interpretation and constitutional theory. 


Tom Bell: The Third Approach to the Constitution
Michael Ramsey

Regarding this post on alternatives to originalism, Tom Bell (Chapman Law) writes:

You wrote of constitutional interpretation, "there is no third way.  Academic attempts to find one are illusions.  You can try to figure out what the original meaning is, or you can try to figure out what the best result is. The question is which one judges should be doing."

With all due respect, my friend, I think you commit the error of the excluded middle.  See The Constitution as if Consent Mattered.  The third -- and better! -- way is to read the constitution as if it were a contract between the federal government and its living subjects, giving the text its plain, present, public meaning.  This we do not for results but because it maximizes the consent, and thus the justifiability, supporting the exercise of governing power.