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42 posts from July 2014


James Fleming: Are We All Originalists Now? I Hope Not!
Michael Ramsey

James Fleming (Boston University - School of Law) has posted Are We All Originalists Now? I Hope Not! (91 Texas Law Review 1785 (2013)) on SSRN. Here is the abstract:

In recent years, some have asked: “Are we all originalists now?” My response is: “I hope not!” In the Article, I explain why. But first, I show that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what I shall call “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation. Why so? Because originalism, rightly conceived, just has to be. By definition. In the nature of things — in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation! I will sketch some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms). Worse yet, raising the question “Are we all originalists now?” may presuppose that we all have come around to Justice Antonin Scalia’s and Robert Bork’s ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.

If I hope we are not all originalists now, what do I hope we (at least some of us) are? Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what I have called “constructivist.” I am interested in developing a constructivist account of the uses of history in constitutional interpretation. A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was. It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory. It would use history for what it teaches rather than for what it purportedly decides for us. In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers. We would understand that we — self-styled originalists no less than the rest of us — always read the past selectively, from the standpoint of the present, in anticipation of the future. We look to the past, not for authoritative answers, but for illumination about our experience and our commitments. Finally, we would understand that it dishonors the past to pretend — in the name of originalism — that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to abstract moral principles and ends. I argue that fidelity in interpreting the Constitution as written requires a philosophic approach to constitutional interpretation. No approach — including no version of originalism — can responsibly avoid philosophic reflection and choice in interpreting the Constitution.


Josh Blackman: State Judicial Sovereignty
Michael Ramsey

Josh Blackman (South Texas College of Law) has posted State Judicial Sovereignty on SSRN. Here is the abstract:

In our “dual sovereignty,” we have a dual judiciary. While the Constitution creates a single Supreme Court, and gives Congress the power to constitute inferior tribunals, predating our federal union were the courts of the states. Through concurrent jurisdiction, these courts, subject to the complete control of the states, were deemed parallel forums to adjudicate federal claims. Yet, in specific areas, Congress designated the federal courts as the exclusive forums of certain federal claims, depriving the state courts of that jurisdiction. In other areas, the Supreme Court has determined that state courts, with or without the consent of the state, are required to entertain certain federal causes of action.

Each of these well-known features of our judicial system — concurrent, mandatory, and exclusive jurisdiction — represents efforts by one sovereign, the federal government, to command and control the jurisdiction of another sovereign, the states. Though the power to mandate, and exclude state court jurisdiction has been construed broadly, certain limits have been placed on this authority based on a respect for the autonomy of each state to manage their courts. I refer to the basis of these constraints on federal power as state judicial sovereignty. State judicial sovereignty refers to the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, federal causes of action.

This article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’s efforts to use, or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents. First, state judge sovereignty refers to the constitutional obligations and state-law duties, of state judges with respect to federal causes of action. Second, state jurisdictional sovereignty, explains the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution. Third, state judge sovereignty, working under the auspices of state jurisdictional sovereignty, places a limit on the federal government’s power to regulate the state court, based on the anti-commandeering principle.

The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. This article aims to bring some clarity to those boundaries.


Evan Zoldan: The 'Professional' Meaning of the Ex Post Facto Clauses
Michael Ramsey

Evan Zoldan (University of Toledo College of Law) has posted The 'Professional' Meaning of the Ex Post Facto Clauses on SSRN. Here is the abstract:

Since its decision in Calder v. Bull, the Supreme Court has held consistently that the Ex Post Facto Clauses apply only to retroactive criminal, as opposed to civil, laws. Nevertheless, there continues to be significant scholarly debate over the original meaning of the clauses. Relying on sources contemporaneous with the framing of the Constitution, like treatises, newspaper articles, and notes from the debates in the Philadelphia Convention, some scholars conclude that the original meaning of the Ex Post Facto Clauses includes civil as well as criminal statutes; others, relying largely on this same evidence, conclude that the original meaning reaches only criminal statutes.

The key to resolving the dispute between these two camps of scholars lies in uncovering the “professional” meaning of the Ex Post Facto Clauses, that is, the meaning of the phrase “ex post facto” as it was used by the professional community of American judges and lawyers in the course of their work in the years leading up to the framing of the Constitution. The professional meaning of the phrase ex post facto has always been, and continues to be, the focal point for discussion of the original understanding of the Ex Post Facto Clauses; nevertheless, historical evidence of the professional meaning of the phrase ex post facto has been all but unexamined.

In this article, I seek to resolve the debate over the original understanding of the Ex Post Facto Clauses by examining undeveloped evidence of the professional meaning of the phrase ex post facto. I conclude that the professional meaning of the phrase ex post facto, and original understanding of the Ex Post Facto Clauses, includes retroactive civil, as well as criminal, laws. Finally, even leaving aside these historical arguments, the story of uncovering the professional meaning of the Ex Post Facto Clauses suggests that there are prudential, doctrinal, and structural reasons for reconsidering Calder’s limitation on the scope of the clauses.


Originalism and Positivism: The Problem of Interpretive Contestation
Mike Rappaport

I have written various posts about originalism and positivism.  Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles.  It is not a mistake I will make again.

I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably.  In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism).  He explores how various theories would address the issue, including natural law theory, positivism, and Dworkin’s interpretive theory.

At the end of the article, his discussion of positivism addresses what in essence is my solution to the problem.  In my view, certain forms of originalism and nonoriginalism are now accepted as law and therefore either can be employed.  The reason is that (1) there are a significant number of people or officials who accept these interpretive methods, (2) decisions reached according to them are disagreed with but not treated as illegal, and therefore (3) the rule of recognition appears to accept both interpretive approaches.

Matt has two objections to this solution.  First, he argues that this solution means that a large number of legal cases involve indeterminacy and therefore neither the majorities in those cases nor the dissenters “were determinately legally correct.”

The question is whether this is a bug or a feature.  I share the concern that such indeterminacy is undesirable as a normative matter, but as a descriptive matter it accurately captures our constitutional practice.  It is generally recognized that hard cases go to the Supreme Court, where the court will split as to the correct resolution.  It is accepted that the Supreme Court gets to decides these cases (so long as it uses acceptable methods).  We may not like it, but that is how our system functions.  If a description of our legal system did not acknowledge this legal indeterminacy, it would be problematic.

Matt’s second objection to the solution that both originalism and nonoriginalism are allowed is that it would suggest that judges and scholars who debate interpretive methods are confused about the law.  They are “confused” because they treat their solution as the legally correct one and other side’s solution as legally incorrect, even though “no method is determinately correct.”

I don’t buy this objection either.  There is nothing problematic in different judges each believing that their view is the better view – the one more likely to be correct.  When they say it is correct, they don’t deny that others believe otherwise.  Nor are they saying that it follows clearly from accepted premises.  Instead, they believe they are correct but recognize that others have a different view (and that different view cannot be ruled out in the same way that deciding cases based on astrology would be).  It is similar to the disagreement about a difficult case involving arguments based on text, structure, history, purpose, tradition and normative desirability.  Just as the justices disagree about the resolution of the case based on these various criteria, so to do the justices disagree about the appropriate interpretive approaches based on multiple criteria.

Finally, it is true that an individual case produces a precedent and therefore some stable resolution, whereas interpretive disagreements continue.  But that is the result of the fact that precedent is not applied to interpretive matters.  The Supreme Court decides case 1 based on originalism and then case 2 based on nonoriginalism.  But no one argues that it failed to follow precedent.  So the problem of interpretive disagreement continues.  But that does not mean that the Court’s disagreement about interpretive approaches is any less legal than its disagreements about particular cases.

James Fleming: Fidelity, Change, and the Good Constitution
Michael Ramsey

James Fleming (Boston University - School of Law) has posted Fidelity, Change, and the Good Constitution (American Journal of Comparative Law, Vol. 62, 2014, Forthcoming) on SSRN. Here is the abstract:

In thinking about fidelity and change in constitutional interpretation, many have framed the basic choice as being between originalism and living constitutionalism. Consider, for example, Jack M. Balkin’s Living Originalism, Robert W. Bennett and Lawrence B. Solum’s Constitutional Originalism: A Debate, and John O. McGinnis and Michael B. Rappaport’s Originalism and the Good Constitution. I shall argue for the superiority of what Ronald Dworkin called “moral readings of the Constitution” and what what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. By “moral reading” and “philosophic approach,” I refer to conceptions of the Constitution as embodying abstract moral and political principles – not codifying concrete historical rules or practices – and of interpretation of those principles as requiring normative judgments about how they are best understood – not merely historical research to discover relatively specific original meanings.

I shall argue that Dworkin’s and my conceptions of fidelity and change are superior to those of originalism in its many varieties. For our moral readings enable us to see what originalisms (besides Balkin’s) obscure or deny: that one of the main purposes of the Constitution is to exhort us to change in order to honor our aspirational principles and affirmatively to pursue good things like the ends proclaimed in the Preamble. Thus, the aspiration to fidelity requires rather than forbids change. But it does so in the name of honoring our commitments and building out our framework of constitutional self-government with coherence, integrity, and responsibility, rather than in the name of “updating” a “living” constitution. It aims for something better than preventing “rot,” as Scalia famously put it. I shall attempt to make good on these claims by arguing that moral readings help us better understand the Constitution as both a framework for change and a charter of aspirations to which we owe fidelity. They enable us to see how the multiple modalities of argument in constitutional interpretation (including original public meaning and precedent), rather than preventing change, are sites in which we argue about, and sources through which we justify, change: in particular, how best to realize and thus to be faithful to our constitutional aspirations. Or, as Dworkin put it, how to interpret the Constitution so as to make it the best it can be.

In sum, my topic is fidelity without originalism and change without living constitutionalism. I also ponder the reasons for the grip of originalism in our constitutional culture as contrasted with its rejection elsewhere. I shall suggest that the reasons commonly offered in fact demonstrate the grip of the aspiration to fidelity, not the grip of originalism itself. And I shall contend that those reasons in fact show the need for a moral reading or philosophic approach that conceives fidelity as redeeming the promise of our constitutional commitments, not an authoritarian originalist conception of fidelity as following the relatively specific original meaning (or original expected applications) of the Constitution.


Andrew Hyman: The Substantive Role of Congress Under the Equal Protection Clause
Michael Ramsey

Andrew Hyman  (The Institute for Intermediate Study) has posted The Substantive Role of Congress Under the Equal Protection Clause on SSRN.  Here is the abstract: 

The authors of the Fourteenth Amendment deliberately wrote that no state may deny the equal protection “of the laws” rather than “of its laws.” This may seem nowadays like a small difference, but it was important in that era, because it meant that the word “laws” includes both state and federal laws. Hence Congress has a substantive role under this clause that applies against the states. This meaning conflicts with recent U.S. Supreme Court cases like City of Boerne v. Flores, 521 U.S. 507 (1997) which have largely shut Congress out. The emphasis here is on the original meaning of the Equal Protection Clause, and especially on the public understanding of its text when it was enacted.


Seth Barrett Tillman Comments (Harshly) on Jack Balkin
Michael Ramsey

Seth Barrett Tillman comments on this post

Professor Jack Balkin writes: "The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them." (emphasis added)

 Foisted? That's a very strange passive construction. Exactly who does Balkin think did the "foist[ing]"? 

 If it was the law schools and the academic class, starting at Yale Law School, it was most certainly the liberals themselves. In those circumstances, the term "foist[]" becomes more than odd. It is a direct effort to disclaim any shared responsibility among liberals. If mistakes were made, Balkin should identify -- by name -- which liberals have made and continue to make them. How else should persons interested in a reformed liberal constitutional agenda, one with constitutional fidelity to text and history, identify those operating outside his new and improved interpretive framework? 

On the other hand, Balkin may be suggesting that liberals adopted an anti-originalist discourse because Scalia and 1960s & 1970s movement conservatives put forward a conservatives-are-faithful-to-constitutional-text-and-history-but-liberals-are-not vision. That explanation is pure bilge. Since when do liberals do what Scalia & Company say? Liberals are responsible for what they choose to believe. Liberals are responsible for what they themselves publish. Not Scalia and not movement conservatives -- whose views liberals regularly reject with scorn, contempt, and abuse. Again, this is an obvious effort to deflect blame from those liberals who are responsible for their own anti-originalist world-view, statements, and publications to others who are not. 

 Shameful. Just shameful.

The Meaning of "Natural Born": What if Blackstone Was Wrong?
Michael Ramsey

In thinking about the phrase "natural born Citizen" in the Constitution's eligibility clause, I have assumed (1) that it follows from the English law phrase "natural born subject" and (2) that "natural born subject" at minimum meant anyone born within sovereign territory (apart from children of invaders and diplomats).  The latter point seems clear from Blackstone, who says as much, quite clearly.  (The first point is contested, as some people think the phrase derives not from English law but from the Swiss writer Vattel).

But suppose Blackstone was wrong?  A reader and correspondent I identify (at his request) as TJ (see here and here) has sent me this additional material:

The Law dictionaries have said :

"...that if one born out of the king's allegiance come and dwell in England, his children, begotten here, are not aliens, but denizens."

Nomo-lexikon: A Law-dictionary : Interpreting Such ...
Thomas Blount - 1670
Nomo-lexikon Link

Nomothetēs, the Interpreter: Containing the Genuine ...
John Cowell, ‎Thomas Manley - 1684
Nomothetes Link

A Law Dictionary: or the interpreter of Words and Terms,1708
Law Dictionary link

Cyclopaedia, Or an Universal Dictionary of Arts and ...
Ephraïm Chambers - 1741
Cyclopedia link

A New Law Dictionary Containing the Interpretation and ... - Page iii
Giles Jacob - 1750
New Law Dictionary Link

Lex Mercatoria Rediviva: Or, The Merchant's Directory: ... - Page 276
Wyndham Beawes, ‎Jacques Savary des Brûlons - 1773
Lex Mercatoria Link

The sources appear to check out (the phrasing is similar in each, suggesting a common origin).  And it's clear that a "denizen" in English law was not a natural born subject, but rather an intermediate status between alien and subject.

This possibility raises a puzzle not just for the eligibility clause, but for originalist methodology more generally.  Blackstone was by far the framers' most important source for the content of English law.  But what if Blackstone was wrong?  That is, suppose the framers took a phrase from English law which they knew Blackstone defined in a certain way, but suppose also that Blackstone defined it incorrectly (as a matter of what English law actually was).  What is the original meaning of that phrase in the Constitution?  What Blackstone said it meant (and so what the framers likely thought it meant), or what it "really" meant?

I confess to not having an immediate answer.


Mike Rappaport: The Ascent of Originalism
Michael Ramsey

Co-blogged Mike Rappaport is apparently too modest to put this up, so I'll do it:

At Liberty Law Forum,  The Ascent of Originalism: A Conversation with Michael Rappaport (podcast).  Here is the summary:

The many schools of originalism all face the same questions: does it merely perpetuate the dead hand of the past? What about the exclusion of women and blacks at the Founding? What does one do with the mountains of non-originalist precedent? This next podcast with our own Mike Rappaport, prompted by his new book that he co-authored with co-blogger John McGinnis entitled Originalism and the Good Constitution, focuses on the rise of originalism as an intrepretative methodology for Constitutional Law and attempts to answer these and other questions with a new framework called original methods originalism.

Our discussion thus focuses on the central claim of original methods which is that the enactment of the Constitution and the approval of its subsequent amendments were achieved under supermajority requirements. So we have an enduring Constitution because it has been built to satisfy more than mere majorities. As such, we discuss this important rationale for why its original meaning should be preserved.


George Leef on John Compton's "The Evangelical Origins of the Living Constitution"
Michael Ramsey

In Forbes, George Leef reviews (favorably) The Evangelical Origins of the Living Constitution (Harvard Univ. Press 2014) by John W. Compton (Chapman Political Science).  From the introduction to the review:

The “living Constitution” theory amounts to saying that Supreme Court justices should be allowed to rewrite the foundation of our government as they see fit, sometimes adding ideas that weren’t included, sometimes ignoring ideas that were.

Where did this ruinous idea come from? When and how did it arise? My supposition had always been that it was a creation of the “progressives” in our legal system early in the last century, exemplified by Justice Oliver Wendell Holmes, and liberal intellectuals who favored FDR’s vast expansion of federal authority.

That view is not exactly right, argues John Compton, Assistant Professor of Political Science at Chapman University, in his new book The Evangelical Origins of the Living Constitution. Compton contends that the “living Constitution” idea arose much earlier in our history, an outgrowth the moral reform movement that swept across the United States from the 1820s until the early decades of the 20th century.

And here is the book description (from Harvard Univ. Press):

The New Deal is often said to represent a sea change in American constitutional history, overturning a century of precedent to permit an expanded federal government, increased regulation of the economy, and eroded property protections. John Compton offers a surprising revision of this familiar narrative, showing that nineteenth-century evangelical Protestants, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century.

Following the great religious revivals of the early 1800s, American evangelicals embarked on a crusade to eradicate immorality from national life by destroying the property that made it possible. Their cause represented a direct challenge to founding-era legal protections of sinful practices such as slavery, lottery gambling, and buying and selling liquor. Although evangelicals urged the judiciary to bend the rules of constitutional adjudication on behalf of moral reform, antebellum judges usually resisted their overtures. But after the Civil War, American jurists increasingly acquiesced in the destruction of property on moral grounds.

In the early twentieth century, Oliver Wendell Holmes and other critics of laissez-faire constitutionalism used the judiciary’s acceptance of evangelical moral values to demonstrate that conceptions of property rights and federalism were fluid, socially constructed, and subject to modification by democratic majorities. The result was a progressive constitutional regime—rooted in evangelical Protestantism—that would hold sway for the rest of the twentieth century.