The Originalism Blog

Jeffrey Pojanowski: Reading Statutes in the Common Law Tradition Michael Ramsey

Jeffrey Pojanowski (Notre Dame Law School) has posted Reading Statutes in the Common Law Tradition (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract: 

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters should no longer understand themselves as bearers of the common law tradition.

Contemporary debate in statutory interpretation thus offers a choice between continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. This neat frame, however, misses important parts of the picture. This Article argues that classical common law jurisprudence in fact offers substantial support for formal theories of interpretation like textualism. In fact, the formalist’s respect for legislative compromise and deference to text or original intent may represent the natural development of a common law tradition that has increasingly linked law with popular custom and consent. By contrast, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more complete understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation.

More broadly, we need not understand the debate between formalists and dynamic interpreters as a disagreement about the common law tradition’s continued validity; rather it is an argument over which interpretation of that tradition best suits a modern, complex polity. There are good reasons — reasons grounded in common law thought — for believing that statutory formalists have a stronger argument than their dynamic critics. Given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the common law tradition and its virtues to persist in our legal system.

Climate Change Negotations, Executive Agreements, and Treatymaking PowerMichael Ramsey

A number of posts have noted this report in the New York Times:  Obama Pursuing Climate Accord in Lieu of Treaty.

Josh Blackman: President Bypassing Treaty Clause For Climate Change Accord?

Jack Goldsmith (Lawfare): Behind the NYT Climate Accord Story

Julian Ku (Opinio Juris): Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

Greg Weiner (Liberty Law Blog): The Very Definition of Tyranny

Here's my quick assessment from an originalist perspective:

(1) The President can enter into any nonbinding agreement that he wants, on his own authority.    A nonbinding agreement (also called a "political commitment" -- see here for the definitive article by Duncan Hollis and Joshua Newcomer) is by definition not a treaty, because a treaty is binding (as a matter of international law).  As a result, a nonbinding agreement is not covered by the treatymaking clause, and instead falls within the President's executive diplomatic power.  (Note: this conclusion is different from Hollis and Newcomer's, but they do not adopt an originalist approach).  So, if as the NYT report hints, this is just a political commitment, or voluntary undertaking, the President is on firm constitutional ground. 

(2) The President has some limited independent power to enter into binding executive agreements (something Presidents have done since very near the founding).  That's because the founding generation apparently recognized some kinds of binding international agreements that nonetheless were not treaties, and thus not covered by the treatymaking clause.  (Note the different treatment of "Treat[ies]" and "Agreement[s] or Compact[s]" in Article I, Section 10).  It remains a bit unclear what these non-treaty agreements were, but the best evidence -- from Vattel and other eighteenth century international law writers -- suggests that they were minor, short term agreements.  It seems unlikely that anything contemplated by the current climate change negotiations fit this description, but it's possible.

(3) But, regardless, the President cannot unilaterally enter into any international agreement that has domestic effect in U.S. law.  Article VI lists the things that are the "supreme Law of the Land," and international agreements made by the President alone are not listed (only statutes, treaties, and the Constitution itself).  Relatedly, the President may be able to make political commitments and executive agreements through the grant of "executive Power"; but the core meaning of executive power is that it does not include its opposite, lawmaking (legislative) power.

(4) The Supreme Court has departed from point (3) to some extent, allowing executive agreements settling claims against foreign governments and foreign companies to have domestic effect in U.S. law.  Some people have read these decisions (U.S. v. Belmont, U.S. v. Pink, Dames & Moore v. Regan, and American Insurance Association v. Garamendi) to have broader application to executive agreements more generally.  But the Court in Medellin v. Texas described these prior cases as focused narrowly on settlements, and declined to extend them.  In my view, an originalist approach -- even if strongly inclined to respect precedent -- is not obliged to extend precedent to new situations.  As a result, an originalist approach would not accept executive agreements with domestic legal effect outside of settlement agreements (which are not part of the climate change negotiations).

As a result, my view is that the President has very broad power to make political commitments regarding climate change, but very narrow power to make binding commitments as a matter of international law and no power at all to alter U.S. domestic law.

I discuss the President's power in these areas, and outline an approach to originalism and precedent, in The Supremacy Clause, Original Meaning, and Modern Law (Ohio St. L.J. 2013). 

Lee Strang: Originalism's Promise, and Its Limits Michael Ramsey

Lee Strang (University of Toledo College of Law) has posted Originalism's Promise, and Its Limits (Cleveland State Law Review, Forthcoming) on SSRN. Here is the abstract: 

In this Symposium Essay, I summarize originalism’s promise and limits. Part II succinctly explains originalism’s promise. Part III briefly describes originalism’s limits. Part IV then suggests that originalism’s limits contribute to its promise.

More from Ilya Somin on Elitism and PopulismMichael Ramsey

At Volokh Conspiracy, Ilya Somin: Justice Scalia on elitist and populist versions of originalism (responding to posts by Mike Rappaport and me).

Christina Mulligan et al.: Founding-Era Translations of the United States ConstitutionMichael Ramsey

Christina Mulligan (Brooklyn Law School),  Michael Douma (James Madison University), Hans Lind (Yale University) and Brian Patrick Quinn (Independent) have posted Founding-Era Translations of the United States Constitution on SSRN.  Here is the abstract:

Before its ratification, the United States Constitution was translated into German and Dutch for the German- and Dutch-speaking populations of Pennsylvania and New York. Although copies of both the German- and Dutch-language translations have been preserved, they have largely escaped analysis — and public awareness — until now. This paper provides historical context for these translations and analyzes how they might aid our interpretation of the U.S. Constitution in the present day.

Supplemental to this article is an appendix containing the German and Dutch translations, as well as extensive commentary on the translations, available at http://ssrn.com/abstract=2486282.

Will Baude comments here: What do we learn from the Founding-era translations of the Constitution?

Gerard Magliocca on Halbig and Originalism (and Larry Solum's Response) Michael Ramsey

At Concurring Opinions, Gerard Magliocca: Halbig and Originalism: 

At issue [in Halbig, the Obamacare subsidies litigation] is a major provision in the most visible statute passed by Congress in years (if not decades).  And we cannot agree what that provision was trying to accomplish just four years after it was enacted.  Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case?  Was there a drafting error, or was this intentional?  If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?

Larry Solum responds (persuasively, from my perspective) at Legal Theory Blog.  A number of good points, including this one:

First, I don't know of any originalist who claims that we can know with certainty the original meaning of each and every provisions of the constitutional text.  Some provisions, e.g., the privileges or immunities clause of the 14th Amendment, are textually opaque.  This does not mean we can or should give up.  And there may be a preponderance of evidence on a disputed provision, but thoughtful originalists certainly know (better than most) that some originalist work is very difficult.

Professor Magliocca has further thoughts in response here.

Michael Dorf Responds to Eugene Volokh on the Perry Indictment Michael Ramsey

At Dorf on Law, Michael Dorf: Separation of Powers Does Not (Necessarily) Immunize the Veto Power -- Wherein I Respond to Eugene Volokh's Reply to My Analysis of the Rick Perry Indictment.

Professor Volokh's post is noted here (the question being whether the legislature can ever criminlaize the use of a veto).

Professor Dorf poses this hypothetical, which seems like a good one:

Imagine a scenario ... [in which] U.S. intelligence learns of a foreign terrorist plot that would exploit a key vulnerability in domestic defenses; Congress acts swiftly to pass a bill appropriating funds for an emergency fix; but the President, secretly acting on behalf of the terrorists, allows the bill to sit on his desk for nine days, and then vetoes it, during which time the devastating terrorist attack occurs. Isn't this a pretty clear case of Presidential treason via the veto power?

But I say no.

Justice Scalia and United States v. SpragueMichael Ramsey

Where does Justice Scalia stand on the question (recently debated here and elsewhere) whether originalism should seek the original legal meaning of the Constitution (that is, as understood by legal experts) or simply the original meaning as understood by non-experts?

Ilya Somin argues, on the basis of a passage in District of Columbia v. Heller, that Scalia favors a "populist" meaning.  But Mike Rappaport shows that in other cases, Justice Scalia relies on legal meaning.

Here is the key passage from Heller:

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Sprague itself is an interesting if largely forgotten case, unanimously picking textualism over unexpressed purpose and living constitutionalism.  The defendant, convicted of alcohol-trafficking during Prohibition, claimed that the Eighteenth Amendment was invalid because it had been approved by state legislatures instead of by a constitutional convention.  As the Court described:

The appellees ... say that it was the intent of its framers, and the Constitution must therefore be taken impliedly to require, that proposed amendments conferring on the United States new direct powers over individuals shall be ratified in conventions, and that the Eighteenth is of this character.  They reach this conclusion from the fact that the framers thought that ratification of the Constitution must be by the people in convention assembled, and not by legislatures, as the latter were incompetent to surrender the personal liberties of the people to the new national government.  From this and other considerations hereinafter noticed, they ask us to hold that Article V means something different from what it plainly says.

Amazingly, the district court agreed (albeit on somewhat different grounds) and held the Eighteenth Amendment invalid.  As the Supreme Court further described:

[The District Court] quashed the indictment not as a result of analysis of Article V and Amendment X, but by resorting to "political science," the "political thought" of the times, and a "scientific approach to the problem of government."  These, it thought, compelled it to declare the convention method requisite for ratification of an amendment such as the Eighteenth.

But the Court had no sympathy for either view.   In a crisp opinion by Owen Roberts, it followed the plain language:

The United States asserts that Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.  A mere reading demonstrates that this is true.  It provides two methods for proposing amendments.  Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the states, must call a convention to propose them.  Amendments proposed in either way become a part of the Constitution

"when ratified by the legislatures of three-fourths of the several states or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . ."

The choice, therefore, of the mode of ratification lies in the sole discretion of Congress ...

If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler that so to phrase Article V as to exclude implication or speculation.  The fact that an instrument drawn with such meticulous care and by men who so well understood now to make language fit their thought does not contain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidence  that no qualification was intended.

So, first, Sprague wasn't about legal meaning versus populist meaning; it was about textual meaning versus implications from non-textual sources.  The full quote from Sprague adds the point that "where the intention is clear [from the text], there is no room for construction and no excuse for interpolation or addition."  Second, Sprague's approach tracks Scalia's position in Heller, which was that the text should prevail over the purpose/intent arguments pressed by Justice Stevens in dissent.  Indeed, in Heller itself Scalia relied on legal meaning and interpretive conventions -- most notably that a preamble cannot alter the unambiguous meaning of the text's operative clause.

I think the key to both opinions is that the meaning is found in the text, not in hidden and unexpressed intents.  This is what both opinion authors surely had in mind.  To read either opinion as taking a position on the legal meaning/populist meaning is to go well beyond what was at stake in the cases.

Ironically, though, the plain language Justice Roberts wrote in Sprague and Justice Scalia repeated in Heller does appear to take such a position.  It's hard to read "normal and ordinary [meaning] as distinguished from technical meaning" as anything other than contrasting popular meaning and legal meaning. 

My view is that this re-affirms the importance of not taking dicta too seriously.  People (including Justices) repeat attractive phrases without thinking closely about their implications, so long as the implications are not concrete and immediate.  As a result, I don't think the Heller/Sprague quote necessarily reflects what Justice Scalia thinks of the specific issue of legal versus popular meaning.

As an aside, US v. Sprague is interesting for a different reason.  The Court of the 1930s is criticized (rightly) for not being originalist or textualist.  But Sprague shows its Justices could unite behind a  strong bit of textualist originalism -- refusing even to engage purposive or normative arguments -- when there was no political pull in the other direction.

RELATED:  John McGinnis comments on the legal meaning/popular meaning debate: The Constitution as Law Nested in Other Law.  Jon Roland also comments: Lay vs. legal versions of originalism, including this point:

The alternatives are misframed by use of the terms "elitist" and "populist", which are distinctly modern terms, not 18th century terms. The proper distinction is between (legally) "learned" and "unlearned", and that is the way even lay persons would have distinguished the two approaches. We find no significant evidence that any laypersons in the founding era insisted on "unlearned" use of what are legal terms because they are used in a law, which makes them legal terms by definition. The average man in the street in 1787, if asked for the meaning of a term he didn't know, and told it was being used in a law, would either ask someone he trusted who was learned in the law, or look it up in a copy of Blackstone. I find not a single instance of anyone in the era insisting on his own lay meaning over that of legally learned person. That just is not the way the people of that era thought.

I would add that the term "elitist" distorts the role of the legal meaning.  The legal meaning of the text was (and is) available to those who investigate it, whether they are lawyers or laypersons, ordinary or elite.  Appealing to it does not hide or unsettle the meaning.  The key distinction (what was really at issue in Sprague) is between legal meaning of the text -- which can be looked up -- and unexpressed intent or purpose, which can only be speculated about and invoked by elite decisionmakers when convenient.

Justice Scalia, Ordinary Meanings, and Legal MeaningsMike Rappaport

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge.  I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment.  Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document.  These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.  

It might seem that Justice Scalia supports the ordinary public side of this issue.  In DC v. Heller, Justice Scalia wrote that: 

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Thus, Scalia seems to side with the view that legal meanings are not followed.  But Scalia seems on weak ground here.  First, Sprague is a 20^th century case, which is no evidence of the original meaning, and Gibbons does not really support him.  

Second, Scalia himself has regularly relied on the legal meanings of terms in the Constitution.  For example, in Crawford v. Washington, one of Scalia’s premier originalist opinions concerning the Confrontation Clause, he quotes with approval that 

the “right … to be confronted with the witnesses against him,” Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. . . . As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine.  The Sixth Amendment therefore incorporates those limitations. 

The common law is the legal meaning.  One cannot assume that the general public understood that meaning and therefore Scalia here seems to be contradicting his methodological statement in Heller. 

In Giles v. California, another originalist Confrontation Clause opinion written by Scalia, Scalia does it again.  The issue is whether a witness who is rendered unavailable to testify by the defendant can have his testimony excluded based on the Confrontation Clause.  Scalia writes that 

the manner in which the [common law] rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded.

Once again, the content of the Confrontation Clause turns on technical questions under the common law – knowledge that the ordinary public would not have know.  I am confident that I could produce numerous other examples of Justice Scalia interpreting texts in accordance with technical legal meanings. 

Perhaps Justice Scalia is just being inconsistent.  But there is another possibility.  Perhaps when he says that the Constitution’s “words and phrases were used in their normal and ordinary as distinguished from technical meaning,” he does not mean to exclude legal meanings.  Perhaps he had “hypertechnical constructions” in mind. 

But Justice Scalia’s statement in Heller is curious and, given this other evidence, is only used problematically as evidence against legal meanings.  

(Cross posted at the Liberty Law Blog)

Mark Graber: Constructing Constitutional Politics Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment on SSRN. Here is the abstract: 

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.