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42 posts from February 2015


Richard Re on Standing’s Lujan-ification
Michael Ramsey

At Re's Judicata, Richard Re: Standing’s Lujan-ification. Here is an excerpt:

Now consider Lujan. Written by Justice Scalia, that most famous devotee of rule-like law, Lujan synthesized prior standing precedent into a compact passage with an explicitly tripartite enumeration, two demarcated sub-points, and an absolutist lead sentence. Here it is, with some cites and alterations omitted:

The irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.” Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

This was a statement meant to be quoted and cited—and it has been. Here is a quick metric of this passage’s influence. Chevron USA v. Natural Resources Defense Counsel (1984) is widely recognized as among the most influential Supreme Court cases in recent decades. Westlaw reports that Chevron has been cited about 69,000 times, and the Westlaw headnote for Chevron’s famous two-part deference test has been cited about 5,600 times. By comparison, Westlaw reports that Lujan has been cited about 50,000 times, and the headnote for the passage quoted above has been cited a staggering 7,400 times. And that’s despite the fact that Chevron has been collecting cites for eight years longer than Lujan.

What has been the upshot of standing’s evolution from Baker to Lujan?

Another data point rejecting the proposition that Scalia has not been influential.  But, is it originalist?


Chris Green Was Right to Criticize Something I Said About the Equal Protection Clause
Andrew Hyman

Late last year, Professor Chris Green was kind enough to critique a forthcoming article of mine about the Equal Protection Clause (EPC). 

Chris’s strongest point was in opposition to my argument for the existence of “states' obligation to obey antidiscrimination requirements analogous to those Congress imposes on the rest of the federal government.”  After researching the matter further, and discussing it with others, I have to admit that Chris has a good point.

Although I have come around to Chris’s thinking on that particular point, I still firmly believe that the EPC would have only been a requirement about equal enforcement of whatever laws a state may have on its books, if the EPC had merely forbidden states to deny “the equal protection of its laws.”  That penultimate word of the clause is very important. 

Moreover, I still firmly believe that the word “protection” is broad enough to cover protection against any unjust discrimination whatsoever.   Likewise, the EPC together with the Enforcement Clause are broad enough to support all of the equality provisions of the Civil Rights Act of 1866, without any need for the Privileges or Immunities Clause.

So, I am sticking to most of my thesis, for which there is plenty of support, including pre-enactment evidence.  But I do admit that Chris made a very valid point about the alleged “states' obligation to obey antidiscrimination requirements analogous to those Congress imposes on the rest of the federal government.”  Another commenter also objected that such a thing would “contort” the EPC.  Mea culpa. 

Fortunately, I have come around in time to revise the forthcoming article of mine.  I believe that the EPC and the Necessary and Proper Clause together authorize Congress to enact provisions of law declaratory of equal rights that people should have within the jurisdiction of the states, short of enforcing those equality rights.  Enforcement is covered separately under Section 5 of the Fourteenth Amendment.  That enforcement power does not allow Congress to enforce whatever declarations it has made about equal rights, but rather only authorizes Congress to enforce the “equal protection” that the courts determine is an essential aspect of those declarations.  I feel confident that this reflects the original meaning of the EPC.

Ashutosh Bhagwat: Posner, Blackstone, and Prior Restraints on Speech
Michael Ramsey

Ashutosh Avinash Bhagwat (University of California, Davis - School of Law) has posted Posner, Blackstone, and Prior Restraints on Speech on SSRN. Here is the abstract: 

Judge Richard Posner recently asserted that the original understanding of the free speech clause of the First Amendment was to prohibit “censorship” – meaning prior restraints – but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Justice Holmes, Joseph Story, James Wilson, and ultimately William Blackstone’s Commentaries on the Laws of England.

The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom for prior restraints. Most importantly, this is because during the Framing era, when speech meant in-person, oral communication, no system of prior restraints on speech was remotely possible or ever envisioned. So, if the Speech Clause only bans prior restraints, it bans nothing. A broader reading of the Speech Clause is also supported by its (admittedly sketchy) history, and by an examination of the political theory underlying the American Revolution. Indeed, not only is the Speech Clause not limited to banning prior restraints, a close examination of the historical evidence strongly suggests – though this issue cannot be definitively resolved – that a substantial portion of the Framing generation probably read the Press Clause more broadly.

What lessons can be learned from this? The first is a need for great caution in “translating” Framing era understandings into modern times, with our very different technological and cultural context. Second, when seeking “original understandings” of the Constitution, it is important to be aware that sometimes, no consensus existed. Indeed, the Framers may have given no consideration at all to specific issues. This indicates limits on the usefulness of the entire Originalist enterprise.


Ilya Somin on the Islamic State AUMF
Michael Ramsey

At Volokh Conspiracy, Ilya Somin, Some details of the Obama administration’s proposed authorization for use of military force against ISIS [Updated with link to actual wording of the proposal].  With this comment:

However, as I explained in my post commenting on Obama’s call for an ISIS AUMF in the State of the Union, an after-the-fact AUMF does not cure the administration’s unconstitutional actions in waging war without congressional authorization for some six months, nor its previous similarly unconstitutional war against Libya in 2011. More will be needed to reestablish the constitutional norm that the initiation of war requires congressional approval. As a first step, Congress should at least couple its ISIS AUMF with a resolution indicating that the president acted illegally when he failed to get authorization in advance, and emphasizing that future interventions must have such authority. Otherwise, there is a danger that courts and future executive branch officials might use the wars against ISIS and Libya as a precedent for the proposition that Congress has acquiesced to unilateral presidential initiation of war. Giving presidents the power to start wars on their own initiative is both unconstitutional and likely to have dangerous consequences.

My view is that the administration's request is tantamount to a concession that it does not have independent  authority for the ISIS/ISIL/IS project.  That's an important precedent in the right direction, even if it does not go as far as Professor Somin would like (and even though I think the president might have authorization from prior AUMFs).

Victoria Nourse on Legislative History
Michael Ramsey

Victoria Nourse (Georgetown University Law Center) has posted two interesting articles on SSRN.

The first is Elementary Statutory Interpretation: Rethinking Legislative Intent and History (Boston College Law Review, Vol. 55, pp. 1613-1658, 2014) on SSRN. Here is the abstract:

This article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts — legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act — their procedures. Once one accepts this position, we must rethink the very concept of legislative history. Legislative history is not a search for a mental state, behind the words, but a search for decisional context. We should give up talking about legislative history, replacing it with the far more helpful notion of legislative decision and statutory context.

Also this one: The Constitution and Legislative History (University of Pennsylvania Journal of Constitutional Law, Vol. 17, pp. 313-363, 2014). Here is the abstract:

In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.

This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply — after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should be of greater concern to a variety of constitutional theorists, particularly those who embrace theories of popular and common law constitutionalism, but as well to originalists.

In part II, the author considers the textualist arguments against the constitutionality of legislative history. Article I, Section 7 provides that any bill must pass the House and the Senate and be presented to the President for veto or signature. As a number of textualists have argued, legislative history is not passed by both houses or signed by the President. Call this the “bicameralism argument.” Her answer to the bicameralism argument lies in a constitutional text that statutory textualists seem to have forgotten: Article I, Section 5 gives explicit power to Congress to set its own procedures, a power that gives legitimacy to legislative history created pursuant to those procedures. In fact, new developments in statutory interpretation theory (decision process theory) suggest that, in some cases, the only way to resolve textual conflict is to consider legislative procedure.

In part III, the author considers a second prominent argument against the constitutionality of legislative history: non-delegation. Critics argue that Congress may not delegate the “legislative power” granted under the Constitution to members or committees, as only the entire Congress may constitutionally exercise that power. Call this the “non-delegation” argument. Again, her response is based on constitutional text: Article I, Section 5 specifically sanctions delegation to less than the whole of Congress; more importantly, there is no general norm against self-delegation stated explicitly or even implicitly in the Constitution. Finally, the author suggests that there is a certain inconsistency in the assertion of these claims: the non-self-delegation and bicameralism arguments can both be used to indict canons of construction, which textualists offer as the leading alternative to legislative history, but which have no supporting text comparable to Article I section 5 in the Constitution.

In part IV, she considers arguments that judges’ use of legislative history violates the separation of powers because it allows the legislature to exceed the bounds of the “judicial power.” This argument can rather easily be turned on its head: in the quotations offered at the beginning of this article, members of Congress argue that judges are exercising the “legislative power” when they rewrite statutes without considering legislative history. As has been argued at length elsewhere, the use of “adjectival” argument in structural controversies — relying upon the terms “legislative, executive, and judicial” — perpetuates a weak understanding of the separation of powers, and one that the Constitution’s own text belies. The separation of powers does not prevent recourse to legislative history; in fact, as the article explains, blindness to legislative history may create different kinds of structural risks — risks to federalism, rather than risks to the separation of powers.

Finally, in part V, the author concludes by suggesting that we should retire the strong form of the legislative history unconstitutionality argument, by which she means the claim that the constitution bars any and all legislative history. Instead, we should far more actively interrogate serious questions about the use of legislative history in particular cases. Can it really be wise — or even constitutional — for a judge to impose a meaning on an ambiguous statute with reference to the statements of a filibustering minority, or privilege some texts in ways that violate Congress’s rules? Fidelity to Congress, and the importance of Congress’s constitutional rules — what Francis Lieber once called the “common law” of the Congress — has yet to be theorized within this more pressing, but particular, sphere.

You've heard this before, but I can't help pointing out again that the squabble over text versus legislative history in statutory interpretation is an intramural argument among originalists (or, it would be so recognized if we were talking about the Constitution instead of statutes).  Legislative history is just another way to get at original meaning (or original understanding, if you prefer), as these articles make clear.

So, if you're not a constitutional originalist, you need either to explain why statutory originalism (which so many people just assume to be the right approach) is wrong, or you need to explain why constitutional originalism is different from statutory originalism.  I'm not saying that either can't be done, but they aren't done very often.


A Further Response to Richard Reinsch from Randy Barnett
Michael Ramsey

Randy Barnett continues this conversation with Richard Reinsch on originalism and natural rights: Protecting natural rights by policing the police power (with an excellent summary of his view of the police power and its limits).

Here is the rest of the chain (so far):

The Book of Judges (Reinsch)

Another defender of “judicial restraint” attacks a straw man (Barnett)

Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett (Reinsch)

We the People of the United States II: The Madisonian View
Mike Rappaport

In my last post, I argued that “We the People of the United States” is best understood as referring to a single people consisting of separate states.  It is not a single people in a single undifferentiated nation like France, but instead is a country that consists of individual states that are united together.

This interpretation of the preamble views it as adopting an intermediate view between the nationalist view of a single people in an undifferentiated nation and the states rights view of multiple peoples in multiple states.

If the preamble adopts an intermediate view, does it fit with the remainder of the Constitution and what specifically is that view?  The intermediate view of the preamble accords with the analysis of the Constitution adopted by James Madison in Federalist 39.  In that number, Madison was responding to critics who argued that the Constitution was a national document and should have been a federal one.  Madison wrote:

In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

After analyzing the Constitution as to each of these aspects, Madison concludes:

The proposed Constitution, therefore is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

(For example, Madison argued that the foundation of the Constitution is federal, not national, because the Constitution was adopted individually by the people of the separate states.)

Thus, according to Madison, the Constitution does not fit into the traditional categories of either national or federal.  Instead, it is a new, mixed form of government.

Under my analysis of the preamble, the preamble accords with Madison’s view of the Constitution as a mixture of national and federal features.  This view of the preamble then gains support from its congruence with the remainder of the Constitution.  And it is no surprise that the preamble and the other constitutional provisions would both have this mixture, since they were produced by a convention that had to compromise on these matters.  The claims of nationalists and states rights theorists are therefore problematic – they ignore the necessary compromises that led to a middle path.

Eric Segall on Originalist Defenses of Overturning Same-Sex Marriage Bans
Michael Ramsey

At Dorf on Law, Eric Segall: Originalist Defenses of Overturning Same-Sex Marriage Bans: Really? From the introduction: 

It is official. We are all originalists now, and interestingly, at the same time, there are no real originalists left. I know this because a number of prominent originalists have suggested that the 14th Amendment, as originally understood, prohibits bans on same-sex marriage. If that is true, originalism can mean anything and everything.

And from later in the post:

I would venture to say that when academics like Jack Balkin, Randy Barnett, and Steven Calabresi make “implausible” originalist arguments, and when other smart folks drain originalism of most interpretive and normative force, it is a hollow victory for those who believe that originalism means judges should follow the principles embraced by the people who ratified the text that is at issue. If it is possible for people to earn the label "originalist" by identifying broad principles like equality, liberty, fairness, and protection of speech, and then apply apply those vague aspirations according to modern norms to reach results that would have shocked the ratifiers, then they are definitely embracing what Balkin calls "living originalism." I am perfectly okay with that moniker as a description of these folks but I am pretty sure most self-identifying originalists would protest (perhaps too much).

And in conclusion:

But, my instinct is that the use of broad principles coupled with selective use of history (which almost always supports both sides, e.g., Heller), does not solve the real problem which is that, as Professor [Stephen] Sachs says, a sincere originalist can embrace virtually any use of those principles--which is exactly why noted liberal William Eskridge and noted conservatives can agree that same sex-marriage bans can be overturned by judges based on “originalism.” Since no one living in 1868 ever thought that could be true, I have no idea what that means other than we are all originalists now or none of us are. The difference won’t matter to the results judges reach (or likely to anyone outside academia) one bit.


We the People of the United States I: One People in a Country of Distinct States that are United
Mike Rappaport

One of the key arguments made by constitutional nationalists is that the Constitution provides that “We the People of the United States . . . do ordain and establish this Constitution.”  The idea is that a single people throughout the country as a whole established the Constitution and therefore sovereignty resides at the national level in that people.  Moreover, this national sovereignty negates any inferences that might otherwise follow from the idea that the Constitution consists of a compact of states.  While this is certainly one interpretation of this language, it is certainly not the only one.  And here I want to suggest an intermediate understanding – one that is in between national and states rights sovereignty.

We the People of the United States has two concepts in it: (1) the People and (2) the United States.  Each of those ideas has two possible interpretations.   The People might refer either to a single people of the nation or to the separate peoples of the different states.  Similarly, the United States might refer to a single national country – as France does – or it might refer to a country that consists of multiple states.  In the latter case, the meaning of the United States would be similar to the meaning of United Nations – an organization that consists of multiple different nations.

The nationalist view works best if both of  these concepts have the nationalist interpretation – if it is one people and a single national country.  The states right view works best if both of these concepts have the compact between states interpretation – if it is multiple peoples and a country consisting of multiple states.

While it is possible to view both concepts in either way, I believe that the stronger interpretation of people is the national view and the stronger interpretation of the country is the states view.

We the People of the United States is best understood as referring to a single people.  After all, if the Framers had intended for the Constitution to reflect the actions of multiple peoples, it could have easily provided “We the Peoples of the United States.”  But it does not say that.  The better reading is that it establishes a single people.  Also supporting this conclusion is the Tenth Amendment, which says that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The United States, however, is best understood as referring to a country consisting of multiple states.  The Constitution uses the term as a plural noun.  The Constitution provides that “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”  This suggests that the United States was referring to a group of individual states that were united together.

It is sometimes said that it matters that the Constitution used the term the United States rather than listing the 13 states in the way that the Articles of Confederation did.  An early draft of the Constitution, produced by the Committee of Detail, provided "We the people of the States of New Hampshire, Massachusetts . . .  do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”

While this language was changed, it is likely that it was not changed for a substantive reason.  Instead, listing the individual states would have been a problem if some of the original 13 did not ratify (as was the case initially with both North Carolina and Rhode Island).   Under the plural understanding of the United States, We the People of the United States pretty much means the same thing as “We the People of the States of New Hampshire, Massachusetts, etc.”  In both cases, there is a single people consisting of individual states that are united together.

In my next post, I will discuss some of the implications of this analysis of the Constitution’s language.

Ronald Turner: A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education
Michael Ramsey

Ronald Turner (University of Houston Law Center) has posted A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education (62 UCLA L. Rev. Disc. 170 (2014)) on SSRN. Here is the abstract:

How would Justice Antonin Scalia, an avowed and prominent originalist, have voted if he were a member of the U.S. Supreme Court at the time of the Court’s seminal 1954 decision in Brown v. Board of Education? In a public appearance Justice Scalia stated that he would have voted with Justice John Marshall Harlan, the lone dissenter from the Court’s 1896 validation of the separate-but-equal doctrine in Plessy v. Ferguson. Additionally, in his recently published book, Justice Scalia stated that Justice Harlan’s dissent in Plessy is “thoroughly originalist” and, in a 1990 dissenting opinion, noted that Plessy was “upheld only over the dissent” of Justice Harlan, “one of our most historically respected Justices.” This Essay examines and criticizes Justice Scalia’s reliance on Justice Harlan as iconic authority for the proposition that Brown can be squared with Justice Scalia’s original public meaning variant of originalism.

And from the core of the argument (footnotes omitted):

"[L]ike most of his contemporaries, Harlan believed in the centrality of race and in the legitimacy of racial thinking. . . . Although Harlan was highly unusual in the courage, integrity, and decency he showed in racial matters, he nonetheless remained a person of his time.” He joined the Court’s pre-Plessy decision holding that a state criminal law’s penalty enhancement for adultery and fornication engaged in by black-white couples did not violate the Equal Protection Clause. And, three years after Plessy, Justice Harlan wrote the Court’s opinion in Cumming v. Richmond Board of Education.  In that case, the Court held that a county school board did not violate the Equal Protection Clause when it closed an all-black high school and continued to operate a high school for whites. The school board’s “separate and unequal scheme” was deemed to be reasonable and therefore constitutional.

In light of Harlan’s views on white superiority and his prior rulings, what does Justice Scalia mean when he says that he would have voted with Justice Harlan in Plessy and characterizes the Harlan dissent as “thoroughly originalist”? What is originalist about Justice Harlan’s dissent? One possibility is that Justice Scalia agrees with Justice Harlan that the issue of the constitutionality of state mandated racial segregation in railway cars concerned the civil but not the social rights of African Americans. If Justice Scalia does not recognize the Reconstruction-era distinction between civil rights and social rights, the originalist ground for disregarding the views of that day and time remains unclear. If he is cognizant of and accepts the civil-social distinction, he must conclude that attending a desegregated school is a social, and therefore not a constitutionally protected, right.

UPDATE:  The article is also available on the UCLA Law Review website, here.

Thanks to Michael Perry for the pointer.