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50 posts from March 2014


Ian Bartrum: Two Dogmas of Originalism
Michael Ramsey

Ian C. Bartrum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Two Dogmas of Originalism (Washington University Jurisprudence Review, vol. 7, iss. 2, forthcoming) on SSRN.  Here is the abstract:

In the early 1950s, Willard Quine mounted an influential attack on logical positivism and the effort to perspicuously distinguish “science” from “metaphysics.” Quine argued that positivism of this sort depends on two “ill-founded” dogmas: (1) Kant’s distinction between “analytic” and “synthetic” truths, and (2) the notion that meaningful linguistic statements must bear a logical relationship to sensory experience. Both dogmas, Quine argued, wrongly assume that we can successfully translate one linguistic term into another without semantic remainder. In short, there is more to language — and life — then logic.

In this piece, I argue that two similar — and equally ill-founded — dogmas underlie modern originalist interpretive theory. The New Originalists, particularly Larry Solum, have identified two essential commitments of modern originalism: (1) the “fixation thesis”, which asserts that constitutional text has a “semantic meaning”, which can be fixed empirically at the time of its ratification; and (2) the “constraint principle”, which asserts that this “semantic meaning” must constrain judicial efforts to construct the legal rules that will apply to modern controversies. Regarding (1), I argue that historical “fixation” (even if possible) is not in fact a significant part of the shared interpretive practice that gives the Constitution meaning. As to (2), I contend that reductionist efforts to legitimize constitutional interpretation in terms of a single foundational referent — history — tend to undermine the complexity and hard-won stability of our longstanding democratic traditions.


Will Baude on Originalism and Free Speech
Michael Ramsey

At Volokh Conspiracy, Will Baude: Should Free Speech Doctrine Use "Purely Historical Tests'? (responding to this post by David Han criticizing the Court's use of history in First Amendment law).  Professor Baude concludes:

... [A] test that looks to what the First Amendment “has permitted” “from 1791 to the present,” sounds like an attempt to at least approximate the original meaning of the constitutional provision. That has all of the usual benefits (and drawbacks) of versions of originalism. If the First Amendment struck a balance between the power to govern and the right to speak, neither Congress, nor Congress in cooperation with federal judges, should be the one to decide that the balance protects too much (creating new unprotected categories) or too little (eliminating traditional categories).

But at a broader level, it seems to me unlikely that the use of historical categories is doing nothing to restrain the Court’s ability to make broad normative judgments. I highly doubt that if asked to consider the “value” and “costs” of the speech itself — divorced from the historical rules of free speech — that most of them would vote in favor of dog-fighting videos, hateful funeral protests, or violent video games in the hands of children. That suggests that cases like [United States v.] Stevens actually function to express a value judgment of their own — that judges should faithfully implement constitutional law rather than making it according to their will. It seems to me our constitutional doctrine needs more of that, not less.

Andrew Kent: Citizenship and Protection
Michael Ramsey

Andrew Kent (Fordham University School of Law) has posted Citizenship and Protection (Fordham Law Review, Vol. 82, 2014) on SSRN.  Here is the abstract:

This symposium essay discusses the role of U.S. citizenship in determining who would be protected by the Constitution, other domestic laws, and the courts. Traditionally, within the United States both noncitizens and citizens have had more or less equal civil liberties protections (putting to one side the question of immigration law). But outside the sovereign territory of the United States, noncitizens have historically lacked such protections. This essay sketches the traditional rules that demarcated the boundaries of protection, then addresses the functional and normative justifications for the very different treatment of noncitizens depending on whether or not they were present within the United States.


More Statutory Originalism
Michael Ramsey

Following up on Chris Green's great post on statuory originalism in the Hobby Lobby argument, here's another example of statutory originalism in a recent case (by coincidence, also involving the Affordable Care Act).  In Halbig v. Sebelius, argued to the D.C. Circuit last week, the question is whether the Act allows tax subsidies on federally-established insurance exchanges when by its language it appears only to allow subsidies on exchanges established by the states.  (See discussion here).   As this report notes,

The Obama administration said Congress intended for everyone who qualified to get subsidies regardless of whether they were in state-run or federal exchanges.  [Full audio linked here, at How Appealing].

(More detail on the argument here, from Bloomberg, to similar effect).  

The point, again, is that statutory cases conventionally take an approach that -- if taken in constitutional cases -- would be called (often derisively) "originalism."  People who don't like constitutional originalism need either to reject the conventional view of statutory interpretation or to explain why statutes and constitutions are different.  (The latter project, of course, can be undertaken, but it's not self-evident).

Erwin Chemerinsky et al.: Cooperative Federalism and Marijuana Regulation
Michael Ramsey

Erwin Chemerinsky (University of California, Irvine School of Law), Jolene Forman (American Civil Liberties Union of Northern California), Allen Hopper (ACLU of Northern California), and Sam Kamin (University of Denver Sturm College of Law) have posted Cooperative Federalism and Marijuana Regulation (UCLA Law Review, 2015, Forthcoming) on SSRN.  Here is the abstract:

The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. Since 1996 twenty states have legalized marijuana for medical purposes and, in November 2013, Colorado and Washington legalized marijuana for adult recreational use. In the fall of 2013, the federal Department of Justice (“DOJ”) announced it will not prioritize enforcement of federal marijuana laws in states with their own robust marijuana regulations, specifying eight federal enforcement priorities to help guide state lawmaking. This announcement has been widely interpreted to signal that the federal government will not enforce its stricter marijuana laws against those complying with the new Washington and Colorado laws so long as the new state regulatory regimes effectively prevent the harms the DOJ has identified as federal priorities. Yet even if the federal government voluntarily refrains from enforcing its drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound. Banks, attorneys, insurance companies, and potential investors concerned about breaking federal law are reluctant to provide investment capital, legal advice, or numerous other basic professional services necessary for businesses to function and navigate complex state and local regulations. And consumers face the risk of severe legal consequences.

The Article explains why, even if it wished to do so, the DOJ could not simply shut down all state marijuana legalization efforts using the federal government’s preemption power under the Supremacy Clause. We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states. The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria – criteria along the lines that the DOJ has already set forth – to opt out of the federal Controlled Substances Act (“CSA”) provisions relating to marijuana. In opt-out states certified by the Attorney General, state law would exclusively govern marijuana-related activities and the CSA marijuana provisions would cease to apply. Federal agencies could continue to cooperate with opt-out states and their local governments to jointly enforce marijuana laws, but state law rather than the CSA would control within those states’ borders. Equally important, nothing would change in those states content with the status quo under the CSA. This proposed approach embodies the best characteristics of federalism by allowing some states to experiment while maintaining a significant federal role to minimize the impact of those experiments on other states.


John Mikhail: The Necessary and Proper Clauses (with my comments)
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted The Necessary and Proper Clauses (Georgetown Law Journal, Vol. 102, No. 4, 2014) on SSRN.  Here is the abstract:

The Article's main purpose is to provide a new and more accurate account of the origins of the Necessary and Proper Clauses. I refer to the Necessary and Proper “Clauses” rather than to the Necessary and Proper “Clause” to emphasize that the relevant constitutional text is comprised of three distinct provisions, only the first of which concerns the enumerated powers in Article I, Section 8:

1.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

2.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States”

3.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in . . . any Department or Officer [of the United States]”

James Wilson was probably the most skilled and accomplished lawyer at the constitutional convention, and he appears to have devoted great care and attention to drafting these clauses for the Committee of Detail. Just why he drafted these clauses in this manner and how they influenced the subsequent development of American constitutional law are the primary subjects of this Article and of the broader research project of which it forms a part.

Among other things, the Article contends that the second Necessary and Proper Clause is particularly important for understanding the basic design of the Constitution. Unless it is treated as surplusage, this second clause indicates that the Constitution vests powers in the Government of the United States that are not merely identical or coextensive with the powers vested in Congress or other Departments or Officers of the United States. Because these additional powers are not specified or enumerated in the Constitution, they must be understood to be implied or unenumerated powers. The existence of implied or unenumerated powers is thus explicitly recognized by the precise text of the Constitution, much like the existence of unenumerated rights. Moreover, these “other powers” are distinct from the powers encompassed by the first Necessary and Proper Clause, which by its terms are limited to whatever instrumental powers are necessary and proper to carry into effect the “foregoing powers” vested in Congress by Article I, Section 8.

The second Necessary and Proper Clause was intended to achieve precisely this objective: to declare and to incorporate into the Constitution the doctrines of implied and inherent powers that Wilson, Robert Morris, Gouverneur Morris, Alexander Hamilton, and other prominent nationalists at the convention had advocated throughout the previous decade, and that Wilson, in particular, had defended on behalf of the Bank of North America in 1785. Recent scholarship on the Necessary and Proper Clause has tended to skip over this preconvention history, but it is essential for understanding why the nationalists were so committed to implied powers, and how they managed to ensure that the Constitution delegated both express and implied powers to the United States.

Part I introduces the central theme of the Article by distinguishing the main components of the Necessary and Proper Clause and by recalling some of the distinct roles these provisions played during the formative era of American constitutional law. Part II explores the intellectual origins of these provisions by examining the genesis of Resolution VI of the Virginia Plan and by tracing some of the important links between its key legislative proposal and the political philosophy of the nationalists. Part III takes a close look at the drafting history of the Necessary and Proper Clause in the Committee of Detail, focusing on the contributions of Wilson, which previous scholarship has frequently ignored. Drawing on extensive historical research, Part IV examines the eighteenth-century origins of the phrases “necessary and proper” and “all other powers,” demonstrating inter alia that these were familiar features of the sweeping clauses in corporate charters and other legal instruments with which Wilson and other framers were intimately acquainted.

In sum, the Article contends that the basic design of the Constitution and the influential debates over the scope of federal power that occurred during the founding era cannot be understood properly unless one recognizes that there are three Necessary and Proper Clauses, not merely one or two. The framers could easily have drafted a Necessary and Proper Clause that gave Congress the authority “to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other powers vested by this Constitution in any Department or Officer of the United States.” The fact that they did not do so requires us to come to grips with the exact language they did adopt, and to ask a simple but penetrating question that goes to the heart of the framers’ constitutional design: What powers are vested by the Constitution in the Government of the United States? Whatever answer is given to this question, it cannot be adequate or sufficient merely to point to the enumerated powers of Congress in Article I, Section 8; the other powers vested by the Constitution in the Departments or Officers of the United States; and the instrumental powers to carry all of these powers into execution, which are given to Congress by the Necessary and Proper Clause. To remain faithful to the text, structure, and history of the Constitution, one must also provide a convincing account of the “other powers” vested by that Constitution in the Government of the United States, to which the second Necessary and Proper Clause refers.

(Thanks to Seth Barrett Tillman for the pointer).

I heard an earlier version of this paper presented at last year's originalism works-in-progress conference in San Diego.  It's an interesting project that discusses some underemphasized history and raises an important textual point about the necessary and proper clause (or, as Professor Mikhail rightly observes, the three necessary and proper clauses).  But I had some doubts then, and I still do.  In particular:

(1) The claim that the second part of the clause is redundant without Professor Mikhail's explanation seems overstated.  Obviously there are powers given to the U.S. government that are not "foregoing powers".  To pick just a few examples, the President and the Senate together have the power to make treaties and appointments (Art. II); Congress has power to establish inferior courts (Art. III); Congress has power to make regulations regarding U.S. property (Art. IV); the "United States" has the obligation -- and thus one presumes the power -- to guarantee to each state a republican form of government (Art. IV).  So the second part of the clause isn't redundant of the first part.

Is the second part of the clause redundant of the third part (powers given to a "Department or Officer")?  Perhaps.  But that conclusion depends on thinking that "Department" includes (a) the President; (b) the President combined with the Senate; (c) Congress acting with the President's approval; (d) the Supreme Court; and (e) in the guarantee clause, at least, "the United States."  It's not obvious, to me anyway, that "Department" unambiguously had such a broad sweep, although it was used broadly in some contexts.  "Department" is used twice in other parts of the Constitution -- in the opinions clause, where it appears as "executive Departments" and means subdivisions of a branch, and in the inferior officers appointments clause, where -- whatever it means -- it does not seem to refer to a combination of branches as would exercise, for example, the treatymaking power.

Thus, for example, it seems to me that if the necessary and proper clause had only its first and third provision and not the second, one could easily argue that it did not include the power to support the treatymaking power, because the treatymaking power is not (a) a "foregoing power" nor (b) exercised by any single Department or Officer.  As a result, I'm inclined to see the whole clause as a catchall -- akin to saying powers of individuals, of parts of the government, or of the government as a whole -- just to be sure all delegated powers are included, but not with any greater significance.

This is a crucial point, because the paper rests fundamentally on the proposition that the second part of the clause is redundant; I don't think it is (or at least, I think it is an understandable belt-and-suspenders provision).  I agree that the clause is awkwardly phrased, because presumably it could just have said "all powers granted by this Constitution."  But awkward phrases (or stylistic flourishes) don't amount to troubling redundancies.

(2) Even if the second part of the clause is redundant, I don't see how Professor Mikhail's argument solves the problem.  If the national government has inherent or implied powers, those powers must vest in some part (or parts) of the government -- just as delegated powers do.  For example, if there is an inherent power to pass legislation in the national interest (chartering a bank, for example), that power doesn't vest in the undifferentiated "Government of the United States," but rather in Congress (with the President's approval or by a veto override).  In that sense, it's no different from delegated powers of Congress that are not "foregoing power[s]" (for example, Congress' Article IV powers).  If Congress is a "Department," then the idea of inherent powers does not solve the redundancy.  (If Congress isn't a Department, then there isn't any redundancy in the first place).

(3) Professor Mikhail may be right that James Wilson thought that in drafting the clause he had done something clever to preserve the idea of inherent national powers.  I agree that Wilson likely believed in inherent powers (and perhaps Hamilton and others did as well).  The idea of inherent powers had enough currency that the antifederalists were openly afraid of it; these fears almost derailed ratification at several points and ultimately led to the Tenth Amendment.  But the question is not what Wilson subjectively believed -- it's whether the phrasing of the clause established a public meaning in support of inherent national powers.  

On that point, the evidence seems extremely thin.  Madison and others repeatedly argued that the national government had only defined and delegated powers.  By time the Tenth Amendment was proposed and adopted, it was regarded as stating a truism contained in the original document.  I'm not aware that anyone pointed to the second part of the necessary and proper clause in particular during any of this debate as a source of unenumerated powers.  So even if Wilson privately read it that way, I don't see how that establishes its public meaning.

In sum, it's an excellent and provocative paper, but I'm not persuaded.  (I am persuaded, though, that the phrasing of the clause is worth additional thought.)


Responding to Tim Sandefur
Mike Rappaport

Over at his blog, Tim Sandefur asks some questions about my new book with John McGinnis, Originalism and the Good Constitution. While I can’t answer all of his questions in a single post, let me address his first two basic points. Start with his first point:

What, then, do we do about existing precedent that diverges from the original meaning? A die hard Originalist might say, Jettison this precedent. But Rappaport and McGinnis don’t. They argue that where precedent diverges from the original meaning, we should continue to follow such precedent if overruling it would impose “enormous costs,” and where the existing precedent is “entrenched,” meaning that a strong consensus supports that precedent today.

My question is this: this escape hatch from the apparent requirements of Originalism is not based on anything intrinsic to the Originalist commitment. It’s ordinary cost-benefit analysis, and notably contemporary in its focus. What connection is there between the Originalist notion of fidelity to the original language, and this apparent permission to escape from that commitment?

In our view, the original meaning of the Constitution allows precedent. It does not, for the most part, specify what that precedent is. Instead, it treats precedent rules as a matter of common law that is revisable by congressional statute. Since precedent rules can be enacted by statute, we discuss what we believe would be the best precedent rules based on our preferred normative approach – welfare consequentialism (a form of utilitarianism). We do not justify this precedent approach based on the Framers’ values, but there is no need to do so. Ordinary legislation today does not have to follow the Framers’ view about what is good legislation (so long as it is constitution). Similarly, precedent rules do not have to follow the Framers’ view about precedent.

Now consider his second question. He writes: In a Northwestern Article, McGinnis and Rappaport

argue in favor of Originalism, not from the premise that we’re obligated to follow the original meaning, but because doing so produces the best results, overall. They are therefore not really categorically distinct from their Living Constitution opponents, but instead stand in relation to those opponents as the Rule Utilitarian stands in relation to the Act Utilitarian. The Living Constitutionalist says to reach a decision based on the best outcome—like the Act Utilitarian—while Rappaport and McGinnis say to follow an interpretive methodology that will tend to reach the best outcomes—like the Rule Utilitarian. They aren’t really normative originalists at all. My question: is that correct?

The answer is that we are originalists, but we seek to justify that originalism with a normative argument. I don’t really understand what Sandefur means by being a real “normative originalist.” You might favor following the original meaning, because you believe it is the law; or because you believe it promotes justice; or for a variety of other reasons. But then you favor the original meaning for a reason, and that reason is your normative premise. For us, our normative premise is welfare consequentialism and that is how we justify following the original meaning.

(Cross posted at Liberty Law Blog)

Lexmark v. Static Control: The End of Prudential Standing?
Michael Ramsey

In Tuesday’s Supreme Court decision in Lexmark v. Static Control – largely overlooked amid the Hobby Lobby coverage – Justice Scalia (for a unanimous Court) struck a major blow against the nebulous and ill-grounded doctrine of “prudential standing.”  The case is a federal statutory (Lanham Act) claim for false advertising between two makers of printer ink cartridges; the district court and the court of appeals differed on whether plaintiff Static Control was within the “zone of interest” of the Lanham Act, a question that both courts thought implicated the doctrine of prudential standing.  Justice Scalia set them straight:

The parties’ briefs treat the question on which we granted certiorari as one of “prudential standing.” Because we think that label misleading, we begin by clarifying the nature of the question at issue in this case.

From Article III’s limitation of the judicial power to resolving “Cases” and “Controversies,” and the separation­-of-powers principles underlying that limitation, we have deduced a set of requirements that together make up the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). … Lexmark does not deny that Static Control’s allegations of lost sales and damage to its business reputation give it standing under Article III to press its false­advertising claim, and we are satisfied that they do.

Although Static Control’s claim thus presents a case or controversy that is properly within federal courts’ Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static Control’s claim on grounds that are “prudential,” rather than constitutional. That request is in some tension with our recent reaffirmation of the principle that “a federal court’s obligation to hear and decide” cases within its jurisdiction “is virtually unflagging.” Sprint Communications, Inc. v. Jacobs, 571 U. S. ___, ___ (2013) …

In recent decades, however, we have adverted to a “prudential” branch of standing, a doctrine not derived from Article III and “not exhaustively defined” but encompassing (we have said) at least three broad principles: “‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalizedgrievances more appropriately addressed in the representative branches, and the requirement that a plaintiff ’s complaint fall within the zone of interests protected by thelaw invoked.’” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 12 (2004) …

 … [However,] [w]hether a plaintiff comes within “the zone of interests” is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff ’s claim. …

In sum, the question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under §1125(a). In other words, we ask whether Static Control has a cause of action under the statute. That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control’s suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001), it cannot limit a cause of action that Congress has created merely because “prudence” dictates.

This is a welcome clean-up of standing doctrine that’s exactly right on rule-of-law grounds.  A constitutional statute is by Article VI the supreme law of the land, binding on the courts.  If such a statute authorizes a claim, the courts must apply the statute.  The Court’s invention of nebulous non-statutory “prudential” barriers to a congressionally authorized suit lets the Court pick and choose which claims to hear without any basis for such a power in either the Constitution or laws made “in Pursuance thereof.”

Is Lexmark the end of prudential standing?  Quite possibly.  Justice Scalia added this footnote:

The zone-of-interests test is not the only concept that we have previously classified as an aspect of “prudential standing” but for which, upon closer inspection, we have found that label inapt. Take, for example, our reluctance to entertain generalized grievances—i.e., suits “claiming only harm to [the plaintiff ’s] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574 (1992). While we have at times grounded our reluctance to entertain such suits in the “counsels of prudence” (albeit counsels “close[ly] relat[ed] to the policies reflected in” Article III), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982), we have since held that such suits do not present constitutional “cases” or “controversies.” See, e.g., Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–346 (2006); Defenders of Wildlife, supra, at 573–574. They are barred for constitutional reasons, not “prudential” ones. The limitations on third-party standing are harder to classify… This case does not present any issue of third-party standing, and consideration of that doctrine’s proper place in the standing firmament can await another day.

After losing both generalized grievances and zones of interest, prudential standing seems at most to contain limits on third-party-standing, which I think (and Scalia seems here to hint) are properly Article III questions as well.  (Perhaps we can now get this malign and confusing doctrine out of the Constitutional Law casebooks.)

Lexmark parallels the Court’s similarly welcome cut-back of the political question doctrine in Zivotofsky v. Clinton (discussed here).  Again, the political question doctrine (in its pre-Zivotofsy version) allowed courts to invent reasons not to hear a case – reasons that lacked foundation in either a statute or the Constitution but instead arose from the court’s own intuitive sense of whether hearing the case would be a bad idea.

Judicial conservatives tend to like these doctrines, but they shouldn’t.   Doctrines that overtly allow courts to dismiss claims on grounds of judicial convenience undermine the rule of law, even if (in a particular case) they might allow a court to get rid of a claim judicial conservatives don’t like. And these doctrines are inconsistent with the Constitution’s original meaning, which grants no power to the courts to limit the effect of Article VI’s supreme law.


Statutory Originalism in Hobby Lobby
Chris Green

Mike Ramsey noted a couple of months ago that the Supreme Court has repeatedly and unanimously explained that the touchstone for statutory interpretation was how Congress used the statute's language at the time of enactment: exactly the same approach to statutes that originalists advocate for the Constitution.  I was struck reading the Hobby Lobby transcript from yesterday how deeply originalist Solicitor General Verrilli's argument was. His explanations on behalf of the administration of the task of statutory interpretation repeated a nearly-identical mantra five times:

p. 46: "[T]he relevant question is what did Congress think it was doing when it enacted RFRA in 1993?"

p. 48: "I think the relevant question here is what did Congress think it was doing in 1993?"

p. 51: "[Hobby Lobby's view] would be such a vast expansion of what Congress must could have thought it was doing in 1993, when it enacted RFRA..."

p. 74: "[T]he question here is what Congress thought it was doing in 1993."

pp. 82-83 (Verrilli's  closing): "Congress can't have thought it was authorizing [Hobby Lobby's view] when it enacted RFRA in 1993."

Steven Calabresi & Gary Lawson: The Rule of Law as a Law of Law
Michael Ramsey

Steven G. Calabresi (Northwestern University - School of Law) and Gary Lawson (Boston University School of Law) have posted The Rule of Law as a Law of Law (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, and indeed the entire scheme of enumerated powers are all infused with standards, largely through the Constitution’s implicit incorporation of fiduciary norms as a background principle of interpretation. The Constitution often prescribes rules, but it often does not. The law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law.