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55 posts from May 2014


New Book: Jefferson Powell's The President as Commander in Chief
Michael Ramsey

This is from late last year but only now came to my attention: The President as Commander in Chief: An Essay in Constitutional Vision (Carolina Academic Press 2013), by H. Jefferson Powell (Duke Law School).  Here is the book description from Amazon:

The contemporary debate over the scope of the President's constitutional authority to protect national security reflects a seemingly unbridgeable gap between those who trumpet essentially unlimited executive power and those who seek to minimize the President's independent role. In The President as Commander in Chief, Powell proposes a different approach that begins with identifying the perspective that a conscientious President and his or her advisors should adopt in answering questions of presidential authority. Powell shows that the opinions of Robert H. Jackson as attorney general and associate justice outline a vision of the President's role in defending the Republic that is faithful to constitutional structure and history. Powell goes on to identify William H. Rehnquist's application of Jackson's vision at the Justice Department and on the Supreme Court, and to discuss the practical implications of his approach.

Legitimate disagreements will always exist about how to answer specific questions over the constitutional distribution of authority in the area of national security, in large measure because any plausible perspective must recognize the need to apply enduring constitutional principles to widely differing factual circumstances. But the current impasse over how to think about the issues is unnecessary. What Powell calls the Youngstown vision can guide executive decision making so that neither the claims of law nor the exigencies of national security is sacrificed.


New Blog on Religious Freedom
Michael Ramsey

The blog is called Cornerstone, from the Berkley Center for Religion, Peace and World Affairs at Georgetown, and judging from early contributions it will have some material of originalist interest: 

Richard Garnett (Notre Dame Law):  Religious Freedom in Early America: Complicating the Common Narrative

Thomas S. Kidd (Baylor History):  The American Founding: Understanding the Connection between Religious and Civil Liberties

(Both with responses from leading commentators).

Via Matthew Franck at NRO.


More on Kurt Lash’s Theory of the Privileges or Immunities Clause and the New Orleans Riot
Mike Rappaport

Recently, I blogged about Kurt Lash’s own blogging about his new book on the 14th Amendment. I wrote:

Kurt argues that the Privileges or Immunities Clause merely incorporates the Bill of Rights; it does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory).

Kurt wrote to me to clarify that in his view:

the Privileges or Immunities Clause protects all constitutionally enumerated personal rights, such as those listed in the Bill of Rights. It includes, for example, the equal protection rights of the Comity Clause as well as the enumerated right to habeas corpus.

Kurt is, of course, correct about his position, and I am happy to clarify his position.

That said, my claim that that Kurt’s interpretation “does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory)” is true. And while the other enumerated rights under the Comity and Habeas Clauses are important, as a matter of modern controversies it is here where the disagreements principally lie.

(I should note that the “equal protection rights of the Comity Clause” – if I understand Kurt’s position – forbid discrimination against out of state citizens, but do not provide general protection against racial or other similar forms of discrimination.)

In my earlier post, I had also noted that the Republicans might have been on stronger grounds if they had chosen to impeach Andrew Johnson for his role in the New Orleans riot, which Kurt had blogged about. I quoted a contemporary Harper’s Weekly article that had stated that “It is shown by that record that the riotous attack upon the Republican Convention, with its terrible results of massacre and murder, was planned and executed by the Mayor of New Orleans, and that it had the countenance of President Johnson, without which it would never have taken place.” Kurt helpfully and interestingly writes in his e mail that the Congress did mention the riot in the articles of impeachment. Unfortunately, though, the charge was for attempting to bring the Congress into disrepute rather than for his role in the riot.

(Cross posted at the Liberty Law Blog)

Ken Matsugi on Justice Thomas on the Establishment Clause
Michael Ramsey

At Liberty Law Blog, Ken Matsugi: Greece the Establishment Clause: Thomas’s Church-State Originalism.  It begins:

“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway

“Probably”? As if the May 5, 2014 Town of Greece v. Galloway decision, upholding prayers said at the beginning of legislative meetings, didn’t upset strict separationists enough, Justice Clarence Thomas’s radically originalist concurring opinion was enough to bring on shouts for an exorcism.  To the contrary, Thomas’s reasoning about the First Amendment establishment clause is the most rational way to preserve liberty, by recognizing the institutional principle of federalism as well as the individual right of religious free exercise. This becomes clear once we see this opinion in light of his earlier, lengthier establishment opinions.

A Further Exchange on Natural Born Citizens
Michael Ramsey

As I mentioned yesterday, a reader I am calling "TJ" sent a series of very interesting objections to the view I'm developing on the meaning of "natural born Citizen" in the eligibility clause.

My core contention, on the point in dispute, is that Blackstone emphatically described persons born in England, of alien parents, as natural born subjects.  In my view, this strongly indicates that Americans, relying on their English common law background, would have regarded persons borin the U.S. of alien parents as, in their terminology, natural born citizens.

One objection, which I'll address later, is that "citizen" should not be equated with "subject."  Another objection, which TJ makes, is that I am overreading Blackstone.  Here are his comments on this point:

I think that Blackstone equated those who were denizens and those who were called natural-born subjects because of what Coke wrote regarding Calvin's Case. (The Reports of Sir Edward Coke, Knt: In Thirteen Parts, Volume 4) 

Page 29 - Calvins Case "Every subject is either natus, born, or datus, given or made, and of these briefly in their order. "

Page 31 - Calvins Case "...   Now what a subject born is, appeareth at large by that which hath been said de ligeantia : and so likewise de subdito dato, of a donaison: for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee, one born within the obedience or ligeance of the King, then such a one should be all one with a natural-born subject [emphasis added]. And it appeareth before out of the laws of King W. 1. of what antiquity the making of denizens by the King of England hath been."

He equated natural-born subjects and denizens. Since both were subjects of the King, I understand his reasoning. Nevertheless, denizens did not have the same rights as natural-born subjects, and naturalized natural-born subjects did not have the same rights as "subjects born" who were also called natural-born subjects.

 Further down the page he defines who are "subjects born"

Page 31 - Calvins Case " 3) There be regularly (unless it be in special cases) three incidents to a subject born. 1) That the parents be under the actual obedience of the King. 2) That the place of his birth be within the King's dominion. And 3) The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom ..."

I think that the "special cases" were spelled out as Common Law, not statutory law. The "special cases" mentioned above appeared to be the children of ambassadors, and the children of the King. This link shows the children of ambassadors were natural-born subjects by common law. A New Abridgement of the Law  (1736)    I cannot currently find the citation that states that the children of the King are natural-born subjects by common law no matter where born, but it seems a self-evident conclusion.

The confusion about the definition of "natural born citizen" appears to have occurred because some have assumed that the statutory additions to those called "natural-born subjects" in England were part of the Common Law when they were not. The fact that naturalized foreigners were also called "natural-born subjects" supports this conclusion.

I found the following footnote interesting, and it supports the idea that statutory changes were considered exceptions to the Common Law, not part of the Common Law. 

"7 All these exceptions to the common law introduced by the legislature are in cases where the father or grandfather is a natural born subject; but there is no provision made for the children born abroad of a mother, a natural born subject, married to an alien." [page 373, footnote 7].  (from Commentaries on the Laws of England, in Four Books, Volume 1 - Blackstone (1793))

There's a lot to digest there, but here are some initial thoughts:

(1) I do not fully understand the first quote from Calvin's Case, but I don't think it's right to say that Blackstone (or Coke) conflated denizens and subjects.  A denizen was a special status, conveyed by the king, that had more rights and duties than an alien but less than a subject.  English common law did not treat people born in England of alien parents as denizens, nor did Blackstone.  Their status was different in two key respects: (a) the former did not need any affirmative act by the king to give them their status (unlike denizens) and (b) they had all the rights and duties of subjects (unlike denizens, who had somewhat lesser rights).

(2) Regardless, the second quote from Calvin's Case confirms my view.  The key phrase is "That the parents be under the actual obedience of the King."  Under English law (and generally under international law of the time) persons within the sovereign's jurisdiction (other than foreign ambassadors and invading armies) owed temporary allegiance to the territorial sovereign, even if they were aliens and thus also owed permanent allegiance to the sovereign of their place of origin.

(3) I agree it is wrong to say that "the statutory additions to those called 'natural-born subjects' in England were part of the Common Law."  The statutory additions (making natural born subjects of certain persons born abroad to English parents) were not part of the common law -- they were extensions by statute, which parliament had power to make.  A critical question is whether the Constitution gave Congress a similar power.   (I believe it did).

(4)  To sum up: (a) persons born in England to alien parents were natural born subjects under the common law; accordingly I think persons born in the U.S. to alien parents were natural born citizens, and (b) persons born abroad to English parents were not natural born subjects under the common law, but parliament had power to make them natural born citizens by its power of naturalization; so I think Congress was given a similiar power by Article I, Section 8, clause 4.  I don't see anything that undermines these conclusions (but I'm happy to have something pointed out).

Of course, this all does depend on equating "natural born" subject and "natural born" citizen, which is a separate topic.

Thanks again to TJ for encouraging me to re-think through all this.


Andrew Cohen on Bruce Murphy on Justice Scalia
Michael Ramsey

Andrew Cohen: Justice Scalia: Sometimes right, often wrong, never in doubt (commenting on Bruce Allen Murphy's new book Scalia: A Court of One, with a bonus swipe at Ed Whelan).  Ed Whelan responds here.

Natural Born Citizens and Minor v Happersett
Michael Ramsey

I had an interesting exchange by email with a reader I'll identify (at his request) just as TJ, an independent researcher, about the original meaning of "natural born citizen" and my views expressed in this post.  We've covered a lot of ground so I'm just going to pick out a part of it here, regarding the Supreme Court's 1874 decision in Minor v. Happersett.

Minor principally asked whether women who were U.S. citizens had the right to vote as a "privilege or immunity" of citizens of the United States guaranteed by the Fourteenth Amendment.  The Court of course decided they did not (because, it said,  voting was not a privilege or immunity of citizens of the United States).  But first it had to decide whether Mrs. Minor was a citizen, and it held she was, because she was born in the United States of U.S. citizen parents.  The question is, does this matter for the original meaning of "natural born citizen" in the eligibility clause?

TJ initially commented:

I tend to go with the definition of natural-born  citizen given in Minor v Happersett - "At common-law, with the nomenclature of which the framers of the  Constitution were familiar, it was never doubted that all children born  in a country of parents who were its citizens became themselves, upon  their birth, citizens also. These were natives, or natural-born  citizens, as distinguished from aliens or foreigners."

If we consider that all those born in the country who do not meet those conditions are aliens or foreigners until the operation of statute or man made law, that definition makes sense to me.

Later he elaborated:

Regarding the statement in Minor:
"The Constitution does not, in words, say who shall be natural-born  citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were  familiar, it was never doubted that all children born in a country of  parents who were its citizens became themselves, upon their birth,  citizens also. These were natives, or natural-born citizens, as  distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without  reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first."
[It] states who were citizens, and that "natural born citizens" are those  born in a country of  parents who were its citizens. I think that the court stated what the definition was, according to their understanding.
The reason there were doubts if the children born within the jurisdiction without reference to the citizenship of their parents were "citizens" or not was because some state legislatures had laws on the books that the children of aliens, or of transient aliens, were not citizens of the state. They were following the original meaning of "subject to the jurisdiction thereof" as debated in Congress at the time of the 14th amendment. They thought that it followed the original statute in the Civil Rights Act of 1866 which stated;
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any  foreign power, excluding Indians not taxed, are hereby declared to be  citizens of the United States; and such citizens, of every race and  color, without regard to any previous condition of slavery or  involuntary servitude, except as a punishment for crime whereof the  party shall have been duly convicted, shall have the same right, in  every State and Territory in the United States ..."
The rationale was that children of aliens were subject to a foreign power through their parents, and were thus not citizens at birth.
It appears that the Congress in 1845 also thought that the children of aliens were not citizens by virtue of birth in the US alone. Congressman Saunders, in his report on Naturalization said:
"First, the act of 1802, which repeals all former acts, ... It further provides for the children of aliens, whether born within or out of the United States ..." The Congressional Globe [Appendix., 28th Cong., 2d sess., House, p. 129].
I agree with most of this discussion, as far as it goes.  In particular, I agree that there was debate in the mid-nineteenth century on whether "natural born" included children born in the United States of alien parents; it's interesting and notable that some states had statutes specifically saying that such persons (or some such persons) were not citizens of the state.  On the other hand, as the Court in Minor acknowledged, there was plenty of authority the other way.  And the Court went on to say (immediately after the passage TJ quotes above):
For the purposes of this case, it is not necessary to solve these doubts.  It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.  The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last, they must be in the first.  That they are included in the last is not denied.  In fact, the whole argument of the plaintiffs proceeds upon that idea.
As a result, I don't think Minor has direct implications for the original meaning of the eligibility clause (it's more significant for the Fourteenth Amendment).  First, it was decided long after the clause was adopted.  Second, it (properly) did not purport to decide the question, and recognized that there were authorities on both sides; it limited itself to the wholly non-controversial proposition that persons born in the U.S. of U.S. citizen parents were citizens.  (Incidentally, the Court's argument for why this included women is very persuasive and well-argued on historical textualist grounds).  Third, it did not point to specific evidence from the founding era in support of either side.
I do think Minor, and TJ's comments above, raise an important question: when did the question (of the citizenship of  U.S.-born children of alien parents) become unsettled?  At least some of the state laws in question were from the 1840s or later, which do not seem very useful on the question of the original meaning of the 1789 Constitution.  (Moreover, state statutes in themselves do not suggest that the common law was unsettled; the states may well have had -- or thought they had -- the power to change the common law by statute).  My impression is that there is not evidence of material dispute in the immediate post-ratification period.  But this is an important research issue, and I'm not prepared to make any definite statement on it.
For me, though, the more important question is where the law stood prior to the Constitution.  In my response to TJ, I said:
Blackstone is very clear that persons born in England to alien parents were English subjects, and it seems fairly clear that this carried over to "citizens" after the revolution.
He had a response to that, which will be the subject of another post. 


Is the Origination Clause a Technicality?
Michael Ramsey

At Forbes, Trevor Burrus: No Taxation Without Representation: How A Fundamental American Principle Is A Technicality To The New York Times (responding to this editorial in the New York Times).  From the introduction:

The Origination Clause was included in the Constitution to ensure that the body that taxed the people, the House of Representatives, was also the most accountable to the people. It was so important to the Convention that its exclusion would have “unhinged the compromise,” in the words of George Mason of Virginia. It was also included because the Founders firmly believed that taxation was illegitimate unless it came from the people’s direct representatives.

Plus this:

During the Constitutional Convention, all or part of seven days, or 8 percent of the 89 total session days, were devoted to the Origination Clause. In James Madison’s notes on the Convention, which are famously incomplete, he devoted nearly 8000 words to debates over the Origination Clause.

Via Randy Barnett at Volokh Conspiracy, where there's an interesting exchange in the comments:

[comment by Bernard11]:  Neither here nor on the other recent thread has anyone offered an explanation as to why the House could not stop the Senate from imposing onerous taxes if there were no Origination Clause.    The House can always vote down a bill it doesn't like, no matter where it originated.     Burrus' article may have some interesting history, but his logic is nonsense. ... Origination Clause or not, no tax can be imposed without the approval of the House, where the people are presumably represented. And of course this was true even when Senators were chosen by state legislatures.


[response by commenter Tenth Justice]: The Origination Clause is less about giving the House the power to stop revenue bills (which they already have), and more about giving them an advantage in negotiations. The House decides when the Senate will be able to take up the question, and what the bill they'll debate initially looks like. That's not a huge advantage, but isn't small either. Basically, the Framers always saw the House as the one that should drive revenue debates, and that's still true today to a large extent.  ...

The response seems correct to me, and it connects with political science theory on the significance of agenda setting.  Suppose, for example, that the country faces a deficit crisis; the Senate thinks an immediate massive tax increase coupled with spending cuts in the future is the right solution.  The House is opposed to all tax increases.  Is the House in a stronger position if the tax increase must originate in the House?  I think so, although as "Bernard11" says, that's not obvious.  With an origination clause, the House can refuse to initiate a tax bill; without an origination clause, the House can vote down a tax bill approved by the Senate.  The result is the same.

But practically it may be much easier to refuse to initiate a tax bill than it is to vote down one that has already taken full form and passed the Senate (and, let's suppose, has the President's support as well).  In the latter case, the Senate has set the agenda with a proposal that "solves" the crisis.  The House will appear obstructionist and "extremist" in refusing to go along; further deterioration in the nation's financial situation will be blamed on House members who prevented the proffered solution.  In contrast, if the Senate cannot pass a tax bill to begin with, the debate over using taxes to solve the crisis will remain abstract.  No one will know what the Senate might approve, if anything.  There will not be a specific proposal around which momentum might build, and the House's obstructionist role will be less apparent.

"Bernard11" responds to "Tenth Justice":

That's the closest thing to an exp[lana]tion I've heard, but it's pretty unconvincing. Bills don't just spring from the foreheads of legislators. The ideas are usually much discussed beforehand and there is nothing barring Senators or Presidents from participating. Indeed, they often propose legislation which will be first formally introduced in the House, without having, in any substantive way, "originated" there.     Indeed, many revenue bills have both Senate and House sponsors. Bradley-Gephardt anyone? And common usage supports this. We often refer to changes in the tax laws by the name of the President who proposed them, and rightly so, since whatever the formalities they reflect the policy of the President, not the House. Reagan tax cuts, Bush (1)  tax increase, etc.     So in fact the House does not set the terms of the debate. The Origination Clause really is just a formality. ...

I agree it's a formality when there's broad agreement, but when there's not broad agreement is when it matters.  To be sure, it is a relatively modest enhancement of the House's power, but in my deficit crisis hypothetical I'm confident the House would be happy to have it

Here's another way to think about it.  Suppose the Constitution provided instead that tax bills were the sole responsibility of the House, and the Senate had no role in them at all.  Of course this would make it easier for the House to pass a tax bill -- but would it also make it easier for the House to prevent a tax bill from being passed (as compared to a situation in which it could vote down a tax bill passed by the Senate)?  I think clearly yes, because the power to set the agenda regarding taxes is now so strongly controlled by the House.  The origination power can be seen as just a milder version of the sole-control structure.

And if origination power would give the House some meaningful leverage in tax matters, one should not read the Senate's power to "concur with Amendments" to wholly undo it (as is argued in the current litigation).   The origination clause really would be a technicality if its only effect is to sometimes require the Senate, when originating a tax bill, to embed it in the shell of a non-tax bill that previously passed the House.  If there's a way to read a constitutiounal clause that gives it some (albeit limited) practical force and a way that gives it no practical force at all, the former should be preferred.


Thomas H. Lee: International Law and Institutions and the American Constitution in War and Peace
Michael Ramsey

Thomas H. Lee (Fordham University School of Law) has posted International Law and Institutions and the American Constitution in War and Peace (Berkeley Journal of International Law, Vol. 31, No. 291, 2013) on SSRN.  Here is the abstract:

This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.


Richard Fallon: Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation
Michael Ramsey

In the current issue of the Cornell Law Review, Richard H. Fallon, Jr. (Harvard Law School) has the article Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation—And the Irreducible Roles of Values and Judgment Within Both (99 Cornell L. Rev. 685).  Here is the abstract:

This Article illuminates an important, ongoing debate between “textualist” and “purposivist” theories of statutory interpretation by identifying three separate stages of the interpretive process at which textualists, as much as purposivists, need to make value judgments. The Article’s analysis, which reveals previously unrecognized symmetries between the two theories, is consistent with, but does not depend upon, empirical studies indicating that judicial ideology matters more than methodology in determining interpretive outcomes. It rejects the frequent claim of textualists that their theory much more stringently restrains value-based decision making than does purposivism.

Of the three interpretive stages at which textualists rely on value-based judgments as much as purposivists do, one stands at the threshold when “interpretive dissonance”—reflecting a partly value-based experience of discordance between what a statute at first blush seems to mean and an interpreter’s expectations concerning what well-written legislation would likely direct—triggers an initial resort to interpretive theory. Then, symmetrically, both textualists and purposivists need to specify the context within which a statute should be interpreted. Although textualists emphasize a statute’s “semantic context” and purposivists its “policy context,” making specific determinations of what is contextually relevant and irrelevant frequently draws values into play. Finally, after an interpretive context is specified, textualist as much as purposivist interpreters must make judgments of “reasonableness.” Purposivists inquire what reasonable legislators would have intended. For textualists, the comparable question involves how a reasonable person would understand statutory language in context. The construct of a reasonable interpreter is inherently value laden.

Because both textualist and purposivist theories require partly value-based decision making, there is no escaping the conclusion that good judging requires good judgment—even when reasonable disagreement exists about what good judgment requires. Normative debates about theories of statutory interpretation will remain incomplete until textualists, in particular, reckon adequately with this reality.