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45 posts from May 2015


New Book: "The Grasping Hand" by Ilya Somin
Michael Ramsey

Forthcoming from Ilya Somin: The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain (Univ. of Chicago Press 2015).  Here is the book description from Amazon: 

In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for  "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution - even if the government cannot prove that the expected development will ever actually happen. The Court's decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and "blight" condemnations are unconstitutional under both originalist and most "living constitution" theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them.  Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. 
The Supreme Court's unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed. 
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.

(With blurbs from, among others, George Will, Richard Epstein and James Ely; also recommended by Larry Solum's Legal Theory Bookworm).

Although the book is not all about original meaning, it has substantial sections of originalist interest, as Professor Somin has extensive material on the way "public use" was understood in the eighteenth and nineteenth centuries.  (He presented these sections of the book at the originalism works-in-progress conference last year).


We Can Make Decisions Like the Irish
Andrew Hyman

Before the recent Irish vote on same-sex marriage fades away in our collective memory, a few things ought to be said.  For starters, the Irish have laudably utilized the democratic process to deal with this subject, whatever one thinks of the outcome. That same ability may imminently be taken away from the American people, on the theory that five judges are better positioned and better informed to decide this issue for 300 million people, than those 300 million people ourselves.

Some readers of this blog may claim that the Equal Protection Clause forbids us from handling the issue as the Irish have done, i.e. democratically or through republican legislation.  To which my answer is: there are many reasons to reject that claim.  
One could start with the fact that intermediate scrutiny does not apply to this sort of classification, because it obviously does not involve discrimination against either men, or against women, as a class.  But perhaps the Court could recognize a new suspect class, which brings me to deeper reasons for rejecting the claim.
The EPC plainly does not refer to the "equal protection of equal laws".  It would have been very easy for the framers to have included the latter word "equal" had they wanted to.  And those who advocate a reading of the EPC that guarantees "protection of equal laws" have never explained why they prefer that formulation to "protection of THE equal laws" which is closer to the actual text.
These points become doubly obvious when you consider that the "protection of equal laws" formulation essentially renders the last three words of the EPC superfluous.  The clause could then just as well say that no state shall "deny equal protection to any person within its jurisdiction", which would automatically require equal laws.
This is all elementary textual interpretation, and I hope my friend Mike Ramsey will take a moment to explain why he thinks it is unconvincing, if indeed it is unconvincing.  I have only encountered one remotely plausible objection to this elementary analysis, and it is not based at all upon the clause's text but rather upon the consequences of that text.
The objection is this: if we interpret the EPC as allowing unequal laws, then cases like the great Brown v. Board of Education would be impossible.  However, that objection can easily be countered by looking, once again, at the clause's text.  To the extent that the EPC imposes a limitation upon state laws, that is because the framers deliberately required states to comply with the equal protection of federal laws (i.e. "of THE laws") rather than merely equal protection of the state's own laws (i.e. "of ITS laws").  That wording was a deliberate decision, explicitly discussed repeatedly by the 39th Congress.  Looked at in this way, Brown v. Board of Education was entirely justified by the Civil Rights Act of 1866, which was reenacted in 1870 pursuant to the Fourteenth Amendment, and which forbade most (if not all) racial discrimination.
According to the original meaning of the Equal Protection Clause, the American people have no less right than the Irish people to decide the issue of same sex marriage.  And on this Memorial Day, I am more than a little concerned that the right of self-government that the founders of this country tried so hard to secure, is being dissolved by people who do not see its central role in our history, and its central role in what has made the country worth fighting for.

The Failure of Originalism to Preserve the Civil Jury Trial
Mike Rappaport

Recently, the Center for the Study of Constitutional Originalism at the University of San Diego hosted the presentation of a paper on the constitution right to a jury trial by Renee Lettow Lerner.  Lerner’s paper is entitled: The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial and here is the abstract:

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.

Lerner’s paper does a great job of reviewing the history and decline of these jury trial clauses.  She shows that the courts, both at the federal and state level, have generally been willing to undermine or narrowly construe the jury trial rights.  This does not seem all that surprising, since the lesser the jury right, the more power judges have.  In this way, the paper is similar to papers that have been written about other constitutional clauses that have been interpreted in nonoriginalist ways by judges who have not liked the original meaning of the clauses.

But what is the original meaning of the Jury Trial Clause in the Seventh Amendment of the Federal Constitution?  In my next post, I will address some of the issues.

Michael Dorf on Congressional Powers and the Dormant Commerce Clause
Michael Ramsey

At Dorf on Law, Michael Dorf: Congressional Power to Authorize Dormant Commerce Clause Violations. From the introduction:

My most recent Verdict column discusses the dissents of Justices Scalia and Thomas in Monday's SCOTUS decision in Comptroller of the Treasury of Maryland v. Wynne. They argue there that the Dormant Commerce Clause (DCC) "is a judicial fraud." As I explain in the column, this claim is quite overstated. One might reasonably think that the DCC is on balance a bad idea or has taken a wrong turn or something of that sort, but the notion that it is a "fraud" rests on the further supposition that textual extrapolation and structural inference are illegitimate, indeed fraudulent, means of constitutional interpretation or construction. But Justices Scalia and Thomas do not make that further supposition in other contexts--e.g., with respect to federal commandeering of the states and state sovereign immunity--so it is hard to take seriously their invocation of it in this context.

 Here I want to address another argument made by Justice Scalia in his Wynne dissent. He says: "The clearest sign that the negative Commerce Clause is a judicial fraud is the utterly illogical holding  that congressional consent enables States to enact laws that would otherwise constitute impermissible burdens upon interstate commerce. [Citation]. How could congressional consent lift a constitutional prohibition?" This is another example of Justice Scalia substituting adamant rhetoric for analysis.

 To begin, Justice Scalia is right that as a matter of doctrine, Congress may authorize states to enact regulations that, absent such authorization, would violate the Dormant (or negative) Commerce Clause. But that is not "utterly illogical." Quite the contrary, it follows very logically from the core purpose of the DCC.

I agree -- of the arguments one could make against the dormant commerce clause, Justice Scalia's point doesn't seem the most compelling.  From a while back, here are my textualist arguments against the dormant commerce clause; note that Justice Scalia's argument on congressional authorization isn't one of them.

To take a somewhat analogous situation, most people think that the declare war clause means that Congress exclusively has the power to declare war, and thus that the President does not have that power.  But Congress routinely authorizes the President to initiate hostilities, which (as I argue here) is in effect authorizing the President to declare war.  Most people do not find a constitutional problem with that (again subject to non-delegation issues), and I agree.  Similarly, even if you think the Constitution gives Congress exclusive decisionmaking power over (some types of) regulations of interstate commerce, it would still be quite plausible to argue that Congress, pursuant to that power, could delegate some of it back to the states.

The problem with the dormant commerce clause is, rather, that there simply is no textual basis for it.  It is a "judicial fraud," in Scalia's words, because its very name creates a false impression of textual foundations.  It is a false claim to a negative implication.  The declare war clause, as noted, both grants a power to Congress and -- by negative implication -- denies that power to the President.  This approach to interpretation was well understood in the founding era, and it is basically undeniable that the framers understood the declare war clause to have this effect.  So one might think, then, that the grant of power to Congress to regulate interstate commerce carries a similar negative implication that states cannot regulate interstate commerce (unless Congress allows them to) -- and, hence, the "dormant" (or "negative") commerce clause.

The problem is that the dormant commerce clause doctrine has absolutely nothing to do with Congress' power to regulate interstate commerce.  No one thinks that the scope of Congress' power to regulate interstate commerce has any relationship whatsoever with the scope of the dormant commerce clause doctrine (as it is currently understood or as it could be understood).  The breadth of things that Congress can regulate under its interstate commerce power and that the states can also regulate without running afoul of the dormant commerce clause doctrine is vast.

As a result, the collection of rules we call the "dormant commerce clause" does not arise from a negative implication of the commerce clause.  That would be more obvious if we called it something else (as we should).  But calling it something else would make clear its lack of textual foundation.  


Jack Balkin Interviews David Sehat on "The Jefferson Rule"
Michael Ramsey

At Balkinization, Jack Balkin: The Jefferson Rule: An Interview with David Sehat. From the introduction:

I recently spoke with historian David Sehat about his new book, The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible (Simon & Schuster 2015).

JB: Your last book was about religious freedom. Why did you decide to write a book about how the founders have been used (and misused) in American political rhetoric?

David Sehat: People in politics often refer to the Founders to justify their particular vision of religious freedom.  My first book called into question that impulse.  But as I finished that first book, the 2009 Tea Party began.  I found the historical malapropism and anachronism of the Tea Party pretty astonishing, but I knew enough to realize that what they were doing wasn't entirely new.  So I decided to write a book about how the rhetoric about the Founders began and to evaluate its consequences over time.

JB: You describe Jefferson as being the first President to really wrap himself in the founding, all the while changing its political meaning to suit his political program. He plays St. Paul to the founders' Jesus. He turns the principles of 1787 into the principles of 1798. One of the big themes of your book is that this general approach to the founders has had unfortunate consequences for American politics from Jefferson's day to the present. Why do you think that's so?

And here is the book description from Amazon:

In The Jefferson Rule, historian David Sehat [Georgia State] describes how liberals, conservatives, secessionists, unionists, civil rights leaders, radicals, and libertarians have sought out the Founding Fathers to defend their policies.

Beginning with the debate between Thomas Jefferson and Alexander Hamilton over the future of the nation, and continuing through the Civil War, the New Deal, the Reagan Revolution, and Obama and the Tea Party, many pols have asked, “What would the Founders do?” instead of “What is the common good today?” Recently both the Right and the Left have used the Founders to sort through such issues as voting rights, campaign finance, free speech, gun control, taxes, and war and peace. They have used an outdated context to make sense of contemporary concerns.

This oversimplification obscures our real issues. From Jefferson to this very day we have looked to the eighteenth century to solve our problems, even though the Fathers themselves were a querulous and divided group who rarely agreed. Coming to terms with the past, Sehat suggests, would be the start of a productive debate. And in this account, which is by turns informative, colorful, and witty, he shows us why.


Final Version of "Congress's Limited Power to Enforce Treaties"
Michael Ramsey

The revised and final version of my article Congress's Limited Power to Enforce Treaties (90 Notre Dame L. Rev. 1539 (2015)) is now published and posted on SSRN.  Here is the abstract: 

This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Congress’s power to enact laws necessary and proper to carry into execution the treatymaking power can be read to include the power to enforce treaties because treatymaking and treaty enforcement are inevitably intertwined. As the Framers understood from experience, a nation with a reputation for unreliable treaty enforcement would be impaired in its ability to make future treaties, as potential partners would regard it as untrustworthy. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. But this structural point is overstated, both because treatymaking itself is constrained by the need for supermajority Senate consent and because federal power can be exercised through self-executing treaties regardless of limits on Congress. Indeed, structural considerations cut at least as strongly the other way, for it seems unlikely after the experiences of the Articles of Confederation that the Framers would have accepted a category of treaties whose enforcement could not be assured at the national level.

Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. If Congress alone can decide what a treaty means and what its enforcement requires, Congress may use the treaty to claim powers not contemplated by the treatymakers. Congress could thus invoke the treaty while circumventing the supermajority constraint on treatymaking.

Third, therefore, courts should not defer fully to Congress in this matter; instead, they should assure that Congress’s actions do not exceed what is justified by the treaty. Although Congress has power to pass laws necessary and proper to preserve the United States’ reputation for treaty compliance, Congress must use this power in ways that do not unduly infringe federalism. In particular, this Article suggests two types of judicial limitations. Courts can make an independent assessment of the meaning of the treaty, including employing a presumption that treaties do not affect purely domestic matters. Courts can also review the necessity and propriety of Congress’s enforcement legislation, prominently including in this assessment whether enforcement of the treaty is appropriately done at the federal rather than the state level. As a result, Congress’s power to enforce treaties, while broad, need not be unlimited.

As an illustration, application of this approach in Bond v. United States would find the federal legislation (as applied to Bond) beyond Congress’s power, both because the Chemical Weapons Convention did not reach Bond’s conduct and because even if it did, state regulation was adequate to assure U.S. compliance with the Convention. As a result, although Congress has power to enforce treaties (contrary to Justice Scalia’s view), its power is sufficiently limited so that it does not pose an undue threat to federalism.

This is part of an symposium issue of the Notre Dame Law Review on Bond v. United States, also featuring excellent contributions by Duncan Hollis, Paul Stephan, Saikrishna Prakash, Edward Swaine, Roger Alford, David Sloss, and Julian Ku & John Yoo.


John McGinnis on Originalism and Precedent
Michael Ramsey

At Liberty Law Blog, John McGinnis: Originalists Need a Distinctive Theory of Precedent. Discussing the recent dormant commerce clause decision, he observes: 

None of the justices [in Comptroller v. Wynne] offer an adequate reconciliation of originalism and precedent. Characteristically, Justice Thomas is untroubled by the enormous amount of precedent on the dormant commerce clause that his opinion rejects, but he has never shown why originalism must wholly reject the relevance of precedents. Justice Scalia accepted some precedent in the case—the notion that state laws that are facially discriminatory against citizens of others states are unconstitutional—but rejected the more flexible dormant commerce doctrine that the Court has long employed. His approach to precedent here is also characteristic– characteristically ad hoc. He has never found rules for precedent that are integrated with his theory of originalism rather than with his jurisprudential desire for clear rules.

Justice Samuel Alito’s opinion was no better in its analysis of precedent and original meaning. ...  Justice Alito was content to note that the dormant commerce clause can be traced back to some dicta in Chief Justice John Marshall’s opinion in Gibbons v. Ogden and has been followed in scores of opinions. These correct observations do not offer a rule for precedent that best advances originalism.

And in conclusion:

But I am not faulting the justices alone. Originalist scholars have not devoted as much attention as they should to determining the content of such rules.  If originalism is going to be successful, ... a lot more work needs to be done. A mature orginalism is an orginalism that comes to terms with precedent.

As Professor McGinnis notes, he and Mike Rappaport have done the most to assess the relationship between originalism and precedent.

My preliminary thoughts on the matter can be found in this article.  It sketches an approach I would described as "strong and narrow" -- that is, that precedents should have very strong binding force, but only as to their particular holdings and not as to their (arguable) implications.  (The article does not not make a case for using this approach; it only outlines what this approach would look like and argues that it is feasible.)  The article's approach is similar, I think, to what Justice Scalia adopts for the dormant commerce clause (but as Professor McGinnis says, Scalia does not embrace that approach across the board).


More from (and on) Michael Paulsen
Michael Ramsey

It seems to be something of a Michael Stokes Paulsen week.

Here is part 2 of his Public Discourse summary of constitutional law: Citizens, Unite! Part Two of Your Constitutional Primer.  (Part 1 is here).

And here is a further guest post at Volokh Conspiracy: Taking impeachment seriously as a constitutional “check”.

Meanwhile, in National Review Ed Whelan reviews (very favorably)  the Paulsens' book: A New Book Revitalizes Our Understanding of the Constitution, with particular attention to questions of judicial supremacy: 

We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning. This mistaken concept of judicial supremacy is often confused with the power of judicial review — the ability of courts to review the constitutionality of laws and regulations that they are asked to apply. It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision.

Thus, Abraham Lincoln, in his first inaugural address, famously defended his rejection of the Dred Scott ruling: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Lincoln’s actions as president were faithful to his words. In defiance of the dual holdings of Dred Scott, he signed into law a bill that outlawed slavery in the federal territories, and he instructed the State Department to issue passports to free blacks (thus recognizing them as citizens). Lincoln also refused to obey Chief Justice Taney’s order, in Ex parte Merryman, to release a prisoner from military custody.

The Court did not propound the myth of judicial supremacy until 1958. But when it did so (in Cooper v. Aaron), it tried to concoct a venerable history. It falsely contended that Marbury v. Madison — the landmark 1803 ruling that expounded the power of judicial review — “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” Even more brazenly, without any mention of Lincoln’s compelling refutation (or of Thomas Jefferson’s and Andrew Jackson’s similar contestations), the Court asserted that the concept of judicial supremacy had “ever since [Marbury] been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”


The Constitution: An Introduction, an impressive book by the father-son duo of Michael Stokes Paulsen and Luke Paulsen, dispels with admirable clarity this and other common and “thoroughly engrained misconceptions about the Constitution, constitutional history, and constitutional law.” 

Daniel Crane: Debunking Humphrey's Executor
Michael Ramsey

Daniel A. Crane (University of Michigan Law School) has posted Debunking Humphrey's Executor on SSRN.  Here is the abstract:

The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s statutory design that ostensibly justified the Commission’s constitutional independence. It was to be non-partisan and a-political, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This article reconsiders Humphrey’s Executor from a different angle. At the end of a one hundred years natural experiment, the Commission bears almost no resemblance to the Progressive-technocratic vision articulated by the Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative. Rather, it is essentially a law enforcement agency beholden to the will of Congress. This finding has potentially important implications for agency design, constitutional doctrine and theory, and understanding of agency functioning.



Michael Paulsen on Constitutional Law (UPDATE: And on Judicial Supremacy)
Michael Ramsey

At Public Discourse, Michael Stokes Paulsen: Everything You Need to Know About Constitutional Law.

It’s final exam time at the nation’s law schools. That means it’s time for professors to concoct fiendish hypotheticals for essay exams and for students to cram, trying to sort out the various three-part, two-pronged, quadruple-somersault doctrinal “tests” and “tiers of scrutiny” with which the Supreme Court’s judicial decisions have cluttered the Constitution, and prepare to spit back the doctrinal gobbledygook in some equally incoherent form on the test.

This is what passes for “Constitutional Law” in our law schools these days: a hopeless mash-up of confusing half-truths, quarter-truths, and outright untruths, taught as “law.” For the desperate law student, I offer this super-duper two-part mini-review of everything you really need to know about constitutional law: part one today, and part two tomorrow.

UPDATE -- RELATED:  Professor Paulsen is guest-blogging on his new book at Volokh Conspiracy, with his open posts focusing on judicial supremacy:

The myth of judicial supremacy

Lincoln versus judicial supremacy

The constitutional case for interposition and nullification