The Originalism Blog

Equal Protection v. Privileges or Immunities in the Cato/Eskridge/Calabresi Obergefell brief Chris Green

Several of the Obergefell briefs touch briefly on sources relevant to the original meaning of the Fourteenth Amendment, but the most extensive treatment is probably the brief on behalf of the Cato Institute and professors William Eskridge of Yale and Steven Calabresi of Northwestern, co-authored by Eskridge and Ilya Shapiro from Cato. Other than Melissa Saunders's 1997 article (on which the brief itself relies at pp. 8 and 15), the brief is one of the few attempts to ground current equality doctrine on the meaning originally expressed in the language of the Equal Protection Clause, rather than in that of the Privileges or Immunities Clause, as advocated by John Harrison's pathbreaking 1992 article, my articles on the Equal Protection Clause (here and here), and my new book on the Privileges or Immunities Clause.

Much of the evidence of the brief, however, uses the concepts of the Privileges or Immunities Clause ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States")--especially the concepts of "citizens" and special "privileges"--rather than the those of the Equal Protection Clause ("nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws"). Elaboration after the jump.

David Moore: Constitutional Discretion to Violate International Law Michael Ramsey

David Moore (Brigham Young University - J. Reuben Clark Law School) has posted Constitutional Discretion to Violate International Law (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract.

Scholars have long claimed that the Constitution commits the United States to comply with international law. These claims come in various forms. Some find the commitment to comply in the Constitution as a whole; others derive obligations toward international law from specific constitutional provisions such as the Take Care Clause and the Supremacy Clause. These claims often proceed from historical premises. They rely on statements by leading figures from the Founding that extol international law compliance. These claims also rely on the conventional account of international law’s status during the period of Confederation. The conventional narrative emphasizes that state violations of international law during this period generated foreign affairs crises for the nation as a whole. In response, scholars claim, the Constitution obligated the new government to comply with international law.

The conventional narrative is true as far as it goes. State violations during Confederation did generate concerns that influenced the Constitution’s creation. Yet the conventional narrative is too narrow. The narrative’s unrelenting focus on state violations of international law has blinded scholars to the national government’s experience with international law during Confederation. Critically, this blind spot has in turn led scholars to overstate the Constitution’s substantive commitment to international law. Drawing on previously neglected historical evidence, this Article reveals the national government’s relationship to international law under the Articles of Confederation. This original research shows that the national government during Confederation deviated from both of the primary sources of international law: treaties and the law of nations. Notwithstanding the nation’s weakness internationally, the national government engaged in self-interested interpretations of the handful of treaties the nation had entered and departed from the law of nations requirement of mandatory ratification of negotiated agreements.

Tellingly, during the constitution making that followed Confederation, the Framers and ratifiers expressed concern for state, but not national, departures from international law during Confederation. This omission — previously unnoticed due to the conventional narrative’s unremitting focus on the states — suggests that the many Founding-era statements in support of international law reflect a general commitment to international law that yielded to concrete national interests. The lack of concern for national violation of international law during Confederation likewise underscores another critical contribution of this Article — the observation that the Constitution adopted not a substantive commitment to international law, but structural provisions that tend toward international law compliance.

In light of the national government’s violation of international law during Confederation, the absence of concern for this violation during constitutional creation, and the Constitution’s ultimate adoption of structural protections rather than a substantive mandate of national compliance, claims of a constitutional commitment to international law compliance are overstated. Together, the Confederation history of national noncompliance uncovered by this Article and the previously unrecognized fact that the Constitution adopts structural rather than substantive protections for international law compliance suggest that the Constitution preserves national discretion to violate international law.

Randy Barnett Responds to Joel AliceaMichael Ramsey

At Volokh Conspiracy, Randy Barnett: Am I “imperiling” originalism? A reply to Joel Alicea (responding to this essay in National Affairs).  From the conclusion:

So, as near as I can tell from our past conversations, the difference between him and me boils down to exactly how “clear” must the Constitution be before judges may protect the sovereignty of the people from abuses by today’s legislatures. To the extent he puts the burden on the individual rather than the legislature, at the end of the day, it is Alicea who privileges rule by today’s majority (or minority) over the generally-worded protections provided in the past by the Founders and by the Republicans who gave us the Thirteenth, Fourteenth, and Fifteenth Amendments. So too if he maintains, as did Footnote Four, that only the “specific prohibitions” of the text warrant judicial scrutiny of legislatures, not its more general statements.

New Book: "Equal Citizenship, Civil Rights, and the Constitution" by Christopher GreenMichael Ramsey

Co-blogger Chris Green's important new book on the privileges or immunities clause is now published: Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (Routledge, 2015).  Here is the book description from Amazon:

The Privileges or Immunities Clause of the Fourteenth Amendment is arguably the most historically important clause of the most significant part of the US Constitution. Designed to be a central guarantor of civil rights and civil liberties following Reconstruction, this clause could have been at the center of most of the country's constitutional controversies, not only during Reconstruction, but in the modern period as well; yet for a variety of historical reasons, including precedent-setting narrow interpretations, the Privileges or Immunities Clause has been cast aside by the Supreme Court. This book investigates the Clause in a textualist-originalist manner, an approach increasingly popular among both academics and judges, to examine the meanings actually expressed by the text in its original context. 

Arguing for a revival of the Privileges or Immunities Clause, author Christopher Green lays the groundwork for assessing the originalist credentials of such areas of law as school segregation, state action, sex discrimination, incorporation of the Bill of Rights against states, the relationship between tradition and policy analysis in assessing fundamental rights, and the Fourteenth Amendment rights of corporations and aliens. Thoroughly argued and historically well-researched, this book demonstrates that the Privileges or Immunities Clause protects liberty and equality, and it will be of interest to legal academics, American legal historians, and anyone interested in American constitutional history.

Congratulations!

UPDATE:  Recommended by Larry Solum's Legal Theory Bookworm.

James Fox on Black OriginalismMichael Ramsey

At The Faculty Lounge, James Fox (Stetson Law) has a series called Black Originalism (see here for part 2 and here for part 3 [discussing the very interesting Syracuse Convention of 1864]).  Professor Fox describes the project in this way:

By the 1860s African Americans had built a well-established discourse and activist community in the North.  It developed with the abolitionist movement, but it also functioned as a support network for building African-American civil society in the Jim Crow culture of the North.  With the end of slavery, southern black communities immediately engaged in public discussions and debates about the meaning and implementation of freedom and citizenship.  And with Reconstruction, black representation in local, state, and national government was brief but substantial. The ideas discussed and advanced within the black public sphere provide an important source for how freedom and citizenship were being thought about at the time by the people for whom it meant the most.  And while historians have been exploring black history from this period for a number of years, very little of this has made its way into legal or constitutional analysis.

The main exception to this has been the use of African-American sources in the Second Amendment cases, Heller and McDonald, relying in part on work by scholars (Akhil Amar, Robert Cottrol & Raymond Diamond, and others), and in Justice Thomas’s opinions on affirmative action (e.g. Grutter).  Both the majority opinion and Justice Thomas’s concurrence in McDonald cite black newspapers and black conventions to support an individual rights reading of the amendment as incorporated through the Fourteenth Amendment.  I don’t know about you, but this struck me as odd. 

First, it seems strange that the main use of sources from Reconstruction-era black history is to support the right to bear arms and not more “traditional” civil rights such as access to public facilities.  This is especially so given that, from what I was aware, the writings and speeches of African Americans from the period barely touch on the right to bear arms, compared to questions such as voting, education, public accommodations, etc.  (Arms-bearing was important, it just was not front-and-center the way other issues were--more on that later.)  Second, it struck me as odd (and interesting) that it was the conservative wing of the court employing originalist analysis that has made the most use of these sources. Liberals have generally overlooked those sources, even when they use other historical materials.

This got me thinking about the possibilities of what could be called “Black Originalism.”  Originalism is generally seen as incompatible with, and even hostile to, the interests and concerns of African Americans, as Jamal Greene as so nicely shown.  Yet non-originalists (livingists, if you will) have not done a very good job of considering, let alone incorporating into constitutional interpretation, the sources and meanings of black history either.  Perhaps, then, it is worthwhile to look at sources from black orators and writers from the period surrounding the Reconstruction Amendments and see how they might speak to constitutional meanings.  If we do, what might we see?  What was the role of an individualist right to bear arms?  How important were ideas of suffrage, access to public facilities, education?  To what extent did these ideas map discussions in the dominant society, and in what ways did they differ for black Americans?  How did ideas of gender play out in discussions of freedom and citizenship?

"The Originalist" Playwright John Strand Interviewed at SCOTUSblogMichael Ramsey

At SCOTUSblog, Kali Borkoski has an interview with The Originalist author John Strand.  Here is the first question:

Question: You say that Justice Antonin Scalia intrigued you because he’s “kind of a lightning rod.  Half the country thinks of him as a monster and half thinks of him as a hero.” When you set out to write the play, was the goal to create a biographical story about Justice Scalia, or to write an allegory about deep divisions?

Strand: As a playwright, I was intrigued by the character of Justice Scalia, but not with an unauthorized biography in mind. The Originalist is not a bio play, or a documentary, or a law lecture (for which I am utterly unqualified and no theater audience would tolerate, anyway). I wanted to use this combative, almost operatic figure to explore how two people on opposite sides of a political, social, and even legal spectrum can take a step toward one another, begin to listen, learn to hear and respect the other’s argument. Is there still a political “middle” and what does it cost to meet there?

RELATED:  This review of the play at Slate thinks it is far too favorable to Scalia.

James Fleming: For Moral Readings and Against Originalisms Michael Ramsey

James Fleming (Boston University - School of Law) has posted Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms (J. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, Oxford University Press, 2015) on SSRN. Here is the abstract:

In recent years, some have asked, “Are we all originalists now?” In this book, I put forward a sustained critique of originalism — whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a “moral reading” of the United States Constitution or what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. 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. In the book, I argue that a moral reading or philosophic approach, as a conception of fidelity to the Constitution as written, is superior to originalism, however conceived. Furthermore, through examining the spectacular concessions that originalists have made to their critics, the book shows the extent to which all now acknowledge that constitutional interpretation requires normative judgments. I also ponder the reasons for the grip of originalism in this constitutional culture as contrasted with its rejection elsewhere. The reasons commonly offered demonstrate the grip of the aspiration to constitutional fidelity, not that of originalism itself. And those reasons in fact show the need for a moral reading or philosophic approach that conceives fidelity as honoring our constitutional commitments to abstract aspirational principles, not an authoritarian originalist conception of fidelity as following the relatively specific original meanings of the founders. If we aspires to fidelity to our imperfect Constitution, we should be moral readers.

Richard Re on Justice Alito and Constitutional Oath in American Railroads Michael Ramsey

At Re's Judicata, Richard Re: Justice Alito on the Constitutional Oath in American Railroads. Here is an excerpt: 

Last week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.

Michael Dorf on Libertarianism and the US Constitution Michael Ramsey

At Dorf on Law, Michael Dorf: How Biased Towards Libertarianism is the US Constitution? Here is an excerpt:

My latest Verdict column [Ed.: titled Economic Liberty Never Really Died] discusses  a recent Harvard Law Review essay by Suzanna Sherry, in which she reviews Richard Epstein’s book, The Classical Liberal Constitution. Sherry says (correctly) that Epstein defends a view of economic rights as no less fundamental than “personal” rights such as contraception, abortion, and marriage. She also says that liberal progressives have failed to respond adequately to the argument by offering a full-throated defense of personal liberty that excludes Lochnerian economic liberty. I argue that this charge is unfair. I point to constitutional theories by the likes of John Hart Ely and Jim Fleming that draw just this distinction. I might have pointed to any number of others. Indeed, it is practically a cliche that liberal constitutional theory of the last four-plus decades has been obsessed with distinguishing Roe from Lochner. 

The main point of my column is not, however, to defend liberal constitutional scholars against Professor Sherry. My chief aim is to examine an unspoken premise that she and Epstein share: namely, that implementing economic libertarianism in the name of the Constitution would require a substantial change to our existing constitutional regime. I challenge this assumption in two ways. I note that: (1) while the SCOTUS has not accepted the invitation of the economic libertarians to revive Lochner as a matter of substantive due process, the Court has in fact been very friendly to the deregulatory agenda of economic conservatives while using other doctrines; and (2) the main contribution of the American Constitution to economic libertarianism comes not from judicial enforcement of the Constitution or courts more generally, but from the hard-wired features of the U.S. Constitution—its multiple “veto players”—that tend to stymie efforts to adopt progressive policies.

Ted Cruz and Originalism as (Part of) Our LawMichael Ramsey

At Opinio Juris, Peter Spiro comments: 

[The natural born Citizen clause] is a terrific case study for demonstrating constitutional evolutions outside the courts. No court will ever touch the question at the same time that particular cases show us where the law is.

One recent addition to the mix: [Neal] Katyal and Paul Clement have this piece on the Harvard Law Review Forum arguing that Ted Cruz qualifies as “natural born”. If Katyal and Clement say he is natural born, then he is natural born, merits aside. Bipartisan pronouncements from legal policy elites become a source of the law.

But in my view the Katyal and Clement essay says more about originalism than it does about evolving constitutionalism.

Katyal and Clement are not originalists; they are advocates (former Acting Solicitor General under President Obama and former Solicitor General under Bush 43).  Yet their argument is almost entirely originalist.  They begin by saying:

While some constitutional issues are truly difficult, with framing-era sources either nonexistent or contradictory, here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings.

They then rely on:

(1) British statutes from the eighteenth century (adding "The Framers, of course, would have been intimately familiar with these statutes and the way they used terms like “natural born,” since the statutes were binding law in the colonies before the Revolutionary War. They were also well documented in Blackstone’s Commentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.");

(2) Immediate post-ratification practice in the 1790 Naturalization Act (adding "The actions and understandings of the First Congress are particularly persuasive because so many of the Framers of the Constitution were also members of the First Congress.").

(3) The Framers' purpose, based on the likely intent of John Jay, who apparently first suggested the clause; and ...

... that's it, except for a passing reference to the Senate's unanimous resolution that John McCain was eligible despite birth in the Panama Canal zone.

In sum, Katyal and Clement make an almost purely originalist argument.  To be sure, it's not novel to do so -- many people have made originalist arguments about the clause (including me).  What's noteworthy, though, is that Katyal and Clement are acting not as constitutional theorists or originalist bloggers but as advocates trying to persuade the greatest number of people of Senator Cruz's eligibility.  As Professor Spiro says, they are speaking as members of the "legal policy elite," putting a stamp of constitutional approval on the candidacy.  And in that capacity, their judgment is that originalist arguments are persuasive and sufficient.

Now this does not necessarily show that originalism is our law (as Will Baude has argued), but it does strongly suggest that originalism is at least a part of our law -- enough that leading members of the "legal policy elite" think it makes their case on this subject.