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48 posts from April 2015


Anita Krishnakumar: The Sherlock Holmes Canon
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) has posted The Sherlock Holmes Canon (64 Geo. Wash. L. Rev., forthcoming (2015)) on SSRN.  Here is the abstract:

Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a statutory interpretation would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend that interpretation. Failure to comment arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation is advanced that arguably would change the status quo. Surprisingly, this canine canon of construction has received little theoretical attention — and what little attention it has received has tended to be positive, assuming that the canon leads courts to follow congressional intent. But there are several practical and theoretical problems with the assumptions underlying the canon. This essay examines how courts employ the Sherlock Holmes canon in practice and explores the canon’s normative and theoretical implications in detail. Ultimately, it argues that the Sherlock Holmes canon should be invoked only in rare cases, when there is special reason for courts to expect or require Congress to comment on a change in the law.


Ernest Young: Federalism as a Constitutional Principle
Michael Ramsey

Ernest A. Young (Duke University School of Law) has posted Federalism as a Constitutional Principle (University of Cincinnati Law Review, forthcoming) on SSRN.  Here is the abstract:

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and institutional checks powered by political opportunism are important in maintaining the federal system, that system is unlikely to survive and flourish unless Americans continue to feel a meaningful degree of loyalty to their states as distinctive political communities.

Also from Professor Young:  The Volk of New Jersey? State Identity, Distinctiveness, and Political Culture in the American Federal System.  Here is the abstract:

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and psychological support to sustain itself.

This article is the first comprehensive effort to assess whether contemporary American states are meaningfully distinctive from one another and whether contemporary Americans identify with their states. The death of state identity is an empirical claim, but no proponent of that claim has ever marshalled empirical evidence to support it. It is also a claim unique to legal scholarship: Scholars in political science, history, economics, cultural psychology, and other disciplines have developed extensive literatures on state political cultures. This article surveys those literatures and collects evidence on the states’ geographic, demographic, and policy diversity, states’ impact on political preferences, relative trust in state and federal institutions, state’s distinct historical narratives, and the impact of individual mobility among the states. I conclude that reports of the death of state identity are greatly exaggerated — and that has important implications for American federalism.


Michael Stokes Paulsen & Luke Paulsen: The Great Interpreter
Michael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) and Luke Paulsen (Princeton University '14) have posted The Great Interpreter (First Things, 2015, forthcoming) on SSRN.  Here is the abstract:      

This essay examines the constitutional legacy of President Abraham Lincoln, the most important constitutional interpreter in our nation's history. The Civil War was -- in addition to so much else -- a defining act of national constitutional interpretation. The war was fought over fundamental questions of the Constitution's meaning, and over who would have final authority to determine that meaning. The most significant issues of antebellum constitutional dispute -- the present and future status of slavery; the question of who possessed constitutional power to determine that status; the nature of the "Union" and the question of whether a state lawfully could secede; matters of national-versus-state constitutional supremacy and "sovereignty" -- received their final "adjudication" not in any court of law but on the battlefields of the Civil War. It was the case of Grant v. Lee, reduced to final judgment at Appomattox Court House 150 years ago, that constituted the nation's determination of these issues, and that determined also the entire constitutional future of the United States. None of this would have happened had Lincoln not considered himself bound by his oath to advance his independent constitutional views concerning Dred Scott, slavery, Union, national constitutional supremacy, and presidential military powers -- views that frequently placed him at odds not only with the views of nearly half the nation, but often with the Supreme Court as well.


Two Questions on Congress' Power to Declare Natural Birth
Michael Ramsey

Jim Henderson (Just Sayin) sends these questions on the presidential eligibility clause:

If Senator Cruz’s eligibility depends upon his attaining “natural born citizen” status as the result of a grant of that status by Congress, what provision of the Constitution empowers Congress to do so?  

I realize the obvious answer should be the Naturalization Clause. The recent discussions [by Neal Katyal and Paul Clement] offer that the English parliamentary expansions of “natural born subject” status lend credence to a view that the Framers intended to afford to Congress, within the power to provide a uniform rule of naturalization, the power to declare persons not “natural born” by circumstance and common law, to be “natural born” by statutory status. This argument has an appeal, but as I contemplated the possibility that the Constitution extended such a power to Congress, additional questions arose. One I will refer to as the Presidentinator Question. The other is the more common limited powers question.

As to the limited powers question, we know, and should agree, that the general government set up under the Constitution is one of limited, donated, express powers. So given the more common and general understanding of “naturalization,” why isn’t the correct construction the obvious one? By obvious, I do mean the one limited to the power to make citizens of aliens.

As to the Presidentinator Question, what principle that can be justified in the law, in the history of the law, that would confer a power on Congress to create statutory “natural born citizen” status for certain categories of individuals, sufficient to meet the Qualifications Clause requirements of Article II, but that would not also empower Congress to pass this amendment to the Naturalization Act:

”Any naturalized citizen of the United States, having been elected to serve as the Governor of one of the States, shall have the status of, and in all respects be considered,  a ‘Natural Born Citizen.’”

(Note: here is his initial post on the Cruz question, and a followup here).

On the first point, Parliament's power to convey "natural born" status on those who were not natural born subjects under the common law was understood as part of its naturalization power.  The acts that conveyed that status were called acts to "naturalize" certain persons or groups of persons.  As a result, the founding generation in America likely understood the power to make a "Rule of Naturalization" as including the power to declare by statute who might be a citizen (naturalized) by birth.  And, as confirmation, the 1790 Act that made such a declaration was called a "Naturalization" act. 

The second question is a whole lot harder.  I suppose one could say that Congress does have this power (that is, to declare someone with no connections to the United States at birth to be, retroactively, a natural born citizen).  But that would be highly problematic in terms of how we understand the purposes of the presidential eligibility clause.  If the purpose of the clause was to prevent European noblemen (including, perhaps, specific European noblemen) from scheming to become President, that purpose would not be served if Congress could declare them natural born citizens retroactively.  They would just need to scheme to obtain the requisite declaration from Congress.  So I accept the premise of the question, which is that the clause should not be read to give Congress such a power.

One possibility is to say that the power to declare natural birth cannot be exercised retroactively. Unfortunately, there is no historical basis for that proposition.  The English statutes declaring natural-born status for persons born abroad were frequently retroactive (e.g., 4 Geo. II, ch. 21 (1731)).  That is, they said that persons born in specified circumstances were declared to be natural born subjects, whether already born or born in the future.  (The statute of 4 Geo. II, ch. 21 conveyed natural-born status on persons "born ... or which shall hereafter be born" abroad to an English father).   And some of the statutes conferred natural born status on specific living people.  Since the whole basis for Congress' power to declare natural birth stems from Parliament's power to declare natural birth, I see no way to say Congress' power can't be retroactive when Parliament's power obviously was.

My answer instead is this: Congress is limited to recognizing natural-born status for people with some connection to the United States at birth.  That limit is established by Parliament's practice, which was only to convey natural born status upon persons born abroad whose parents (or at least one of them) were English subjects.  Parliament never passed a naturalization statute anything like the one posed in the hypothetical above (with one exception).

The exception is significant and confirms the general practice.  In the 1708 naturalization statute (7 Anne, ch. 5 ), Parliament gave natural born status to all European protestants who would move to England and take allegiance to the English monarch.  But this grant was repealed three years later because of “divers Mischiefs and Inconveniences,” see 10 Anne ch. 9 (1711), and was not repeated.  I think it plausible to conclude that the 1708 Act was regarded as in excess of Parliament's proper naturalization power, and that the general view saw Parliament's (and thus Congress') power to declare natural birth as limited to persons with connections through their parents at birth.

So my answer to the second question is that the hypothetical statute is unconstitutional because it conveys natural born status on someone who had no connection to the United States at birth -- a power not generally exercised by Parliament and thus not included in Congress' naturalization power.

Cass Sunstein: How Star Wars Illuminates Constitutional Law (and Authorship)
Michael Ramsey

At the New Rambler, Cass Sunstein (Harvard) has this review of  How Star Wars Conquerer the Universe: The Past Present, and Future of a Mulitbillion Dollar Franchise, by Chris Taylor (Basic Books 2014): How Star Wars Illuminates Constitutional Law (and Authorship).

(Thanks to Michael Perry for the pointer).


Taking Raisins at the Supreme Court
Michael Ramsey

Today the Supreme Court hears oral argument in the raisin taking case, Horne v. Department of Agriculture.  George Will comments (harshly) here, beginning: 

In oral arguments Wednesday, the Supreme Court will hear the government defend its kleptocratic behavior while administering an indefensible law. The Agricultural Marketing Agreement Act of 1937 is among the measures by which New Dealers tried and failed to regulate and mandate America back to prosperity. Seventy-eight years later, it is the government’s reason for stealing Marvin and Laura Horne’s raisins.

Additional comments, quotes and links here from Elizabeth Price Foley.  Some earlier thoughts on this blog here.  Also, video from Ilya Somin and the Daily Show (via Eugene Volokh) (really).

Originalism bonus: Michael McConnell (Stanford) is counsel for the petitioners.


Is Marco Rubio a Natural Born Citizen?
Michael Ramsey

Recently-announced presidential candidate Marco Rubio was born in the United States but his parents were not U.S. citizens.  Does that make him a natural born citizen under the presidential eligibility clause?

My answer is, in a word, yes.

As I (and others) have argued in connection with Ted Cruz's candidacy, the most likely source of the "natural born" phrase in the eligibility clause is English law -- specifically, English law's designation of "natural born subjects."  Rubio's case is easier than Cruz's because English common law was clear that birth within sovereign territory was sufficient to make one "natural born."  (Cruz's case depends -- although I think convincingly -- on the treatment in English statutory law).

As Blackstone explained (Commentaries, vol. 1, pp. 354-55):

The first and most obvious division of the people is into aliens and natural-born subjects.  Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligence, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.  Allegiance is the tie, or ligament, which binds the subject to the king, in return for that protection with the king affords the subject.  The thing itself, or a substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

Because the status was "founded in reason and the nature of government" it arose from natural law -- hence "natural" born subject.  Later he emphasized that this rule encompassed children of aliens: “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." (Commentaries, vol. 1, pp. 361-62).  An exception existed for children of foreign diplomats, but that exception only confirmed the general rule that children of non-diplomat aliens were natural born English subjects if born in England.

A later commentary confirms:

By the common law all persons born within the power or protection of the Crown owe natural allegiance to the King, and are natural-born subjects of the realm, while all born out to the allegiance or protection of the King are aliens born, and remain aliens unless they are subsequently made denizens or naturalized.  For the law of England had always adopted to feudal or territorial principle of determining nationality by the place of birth alone.

Henry S.Q. Henriques, The Law of Aliens and Naturalization, p. 29 (1923) (and further, at p. 63: “the general effect [of the common law rule] is, that persons born within the dominions of the King, whether of English or foreign parents, are natural-born subjects, and that persons born without his dominions are aliens.”

There are, as I understand it, two possible counterarguments.  First, as discussed in an earlier post, perhaps Blackstone was wrong (that is, wrong about English common law).  He might have been (he was wrong about a number of aspects of English law).  But I also think that's probably irrelevant.  Blackstone is very clear on the point, and to the Framers Blackstone was a definitive account.   The meaning of the eligibility clause arises from the way "natural born" was understood in late eighteenth century America, not from what it actually meant in earlier English history.

A second counterargument is that we should not look to Blackstone or English law at all, but rather to continental understandings of natural law, and specifically to Emer de Vattel's 1758 treatise Law of Nations.  (See, for example, this law review note, relying on Vattel, and also here).  Vattel adopted the common European view (going back at least to Rome) that citizenship turned on ancestry not on the place of birth.  The key passage is this one (book I, ch. XIX, § 212) (1797 translation):

The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages.  The natives, or natural born citizens, are those born in the country, of parents who are citizens.  As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. … The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. .. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.  [Note that an earlier translation of Vattel, although to the same effect, did not use the phrase "natural born".]

If this is the source of the Framers' understanding, it would be problematic for Rubio; but the evidence tying Vattel to the eligibility clause is thin.  It's true that the Framers read Vattel and that he influenced their thinking about the law of nations.  But I'm not aware of any surviving evidence of anyone at the time referencing Vattel in connection with the eligibility clause or the phrase "natural born." (Of course, records might have been lost -- in any case there does not seem to have been a broad understanding in this direction.)  Further, post-ratification commentary seems instead generally to adopt the Blackstone view.  For example, St. George Tucker' s 1803 treatise observes:

Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration.

While some doubts did seem to persist regarding, for example, children born in the United States whose parents were only temporarily present, it seems clear that children whose parents had moved permanently to the United States were broadly considered "natural born" if born there.  As a result, the tie to Vattel seems speculative at best, and contrary to the apparent common view in the immediate post-ratification era.

So Rubio's case seems clear to me (but I'm open to counterarguments).

Eugene Volokh on Reading Madison
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh has another post on the challenges of reading eighteenth-century language, in this case James Madison (supposed) quote form Federalist 51:  "What is government itself, but the greatest of all reflections of human nature?"

Actually, as Professor Volokh points out, the quote is "What is government itself, but the greatest of all reflections on human nature?" -- and that likely meant something different from what it appears to mean to the modern ear.


Michael Paulsen on Justice Scalia's Worst Opinion
Michael Ramsey

At Public Discourse, Michael Paulsen (St. Thomas): Justice Scalia’s Worst Opinion.  He goes with Employment Division v. Smith:

Smith produces a strangely ironic reading of the Free Exercise Clause. According to this view of the Constitution’s protection of the “free exercise” of “religion,” there is nothing constitutionally special about the free exercise of religionReligion is just one other thing that might get in the way of government’s ordinary powers, no different in kind from any other set of beliefs or preferences that might be opposed to government policy. The right to the free exercise of religion is not a substantive freedom.  It confers no constitutional immunity from government interference. The Free Exercise Clause is merely a non-discrimination rule. Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.


Smith’s rule is not completely implausible, but it is wrong. The text of the Free Exercise Clause protects the “free exercise” of religious faith. That rather plainly makes religious freedom a substantive liberty, not a mere nondiscrimination requirement.

The text singles out religion for unique protection. Constitutionally, this means that religious exercise is not a category of conduct to be treated the same way as anything else. In addition to the text itself, there is considerable historical evidence to suggest that this was the original understanding of the Free Exercise Clause. As the distinguished religious liberty scholar Michael McConnell has demonstrated, the framers’ understanding of religious liberty prominently included the idea that such a liberty could, and often would, require exemption from the application of the ordinary laws of the secular state.

My focus is separation of powers and federalism, so my pick is Whitman v. American Trucking  -- among majority opinions, that is; for all opinions, how about the concurrence in the judgment in Gonzales v. Raich?  (I'm open to other nominations ....).

Also forthcoming from Professor Paulsen (with his son Luke Paulsen): The Constitution: An Introduction (Basic Books, May 2015).  Here is the book description from Amazon: 

From war powers to health care, freedom of speech to gun ownership, religious liberty to abortion, practically every aspect of American life is shaped by the Constitution. This vital document, along with its history of political and judicial interpretation, governs our individual lives and the life of our nation. Yet most of us know surprisingly little about the Constitution itself, and are woefully unprepared to think for ourselves about recent developments in its long and storied history.

The Constitution: An Introduction is the definitive modern primer on the US Constitution. Michael Stokes Paulsen, one of the nation’s most provocative and accomplished scholars of the Constitution, and his son Luke Paulsen, a gifted young writer and lay scholar, have combined to write a lively introduction to the supreme law of the United States, covering the Constitution’s history and meaning in clear, accessible terms.

Beginning with the Constitution’s birth in 1787, Paulsen and Paulsen offer a grand tour of its provisions, principles, and interpretation, introducing readers to the characters and controversies that have shaped the Constitution in the 200-plus years since its creation. Along the way, the authors provide correctives to the shallow myths and partial truths that pervade so much popular treatment of the Constitution, from school textbooks to media accounts of today’s controversies, and offer powerful insights into the Constitution’s true meaning.

A lucid and engaging guide, The Constitution: An Introduction provides readers with the tools to think critically and independently about constitutional issues—a skill that is ever more essential to the continued flourishing of American democracy.

(With strong blurbs from, among others, Robert George and Steven Calabresi).


Jack Balkin: Constitutional Interpretation and Change in the United States
Michael Ramsey

Jack Balkin (Yale University - Law School) has posted Constitutional Interpretation and Change in the United States: The Official and the Unofficial on SSRN. Here is the abstract:

This lecture, given at the Institut Villey in Paris, describes the processes of constitutional change in the American political and legal system.

The first part of the lecture briefly summarizes the theory of framework originalism featured in Living Originalism.

The second part of the lecture explains how the American constitutional system actually changes in practice, emphasizing two kinds of contributions to constitutional development. The first are the official contributions of laws and judicial doctrines. The second are the unofficial contributions of political parties and civil society, expressed through political mobilization, social influence, and cultural change.

American constitutional development features a dialectic of legitimation. Efforts by the political branches to build out state functions, and efforts by civil society groups to make constitutional claims spur constitutional controversies. These controversies, in turn, may generate judicial doctrine that legitimates or holds illegitimate what political actors have done. Even when courts strike down particular laws or practices, their decisions may lead to other pathways for achieving political goals that will later be declared legitimate.

The dialectic of legitimation explains the point of judicial review in the American constitutional system. Judicial review does not simply constrain or limit state power; rather judicial review legitimates, shapes and redirects political power. Indeed, modern democracies with judicial review are able to project power in ways that earlier states could never have imagined.

The third part of the lecture explains why American constitutional theory appears to feature an opposition between living constitutionalism and originalism, an opposition which is actually illusory. Both calls for a return to original meaning and assertions that Americans have a living constitution are responses to the same phenomenon—the recognition that the world that produced the ancient constitution has dissolved. This is the experience of constitutional modernity.

Constitutional modernity generates equal and opposite responses, which have been offered by both liberals and conservatives in the twentieth and twenty-first centuries-- the need to cleave to the past and its symbols and concrete manifestations, and the need to transcend the past through pragmatic adaptation to a changed world.