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41 posts from November 2015


Frederick Schauer: Is Law a Technical Language?
Michael Ramsey

Frederick Schauer (University of Virginia School of Law) has posted Is Law a Technical Language? (San Diego Law Review, forthcoming) on SSRN. Here is the abstract:

This essay, the written version of the Nathanson Lecture at the University of San Diego, asks how much of legal language is ordinary language, and how much of it is technical language. The topic is important and pervasive, because it forces us to confront the question of how much, if at all, an interpreter of legal language should take account of the goals of particular laws and the goals of the legal system generally in deciding just what a law means. To the extent that legal language is ordinary language, it is possible for an interpreter at the first stage of interpretation to decide what that language simply means, and then at a subsequent stage (as proponents of the distinction between interpretation and construction maintain) to decide what a legal outcome ought to be. But if legal language is a technical language, then the interpretation-construction distinction collapses, and right from the beginning, as Lon Fuller most prominently insisted, the interpreter must consider just what laws in particular and law in general are aimed at achieving. So although it is obvious that certain terms are constituted by law – habeas corpus, assumpsit, corporation, trust, bill of attainder – the larger question is whether all of law and all of legal language should be understood in substantially the same way. The aim of this lecture is to open up the question of legal language as technical language for broader and deeper exploration, and to suggest that resolution of the ordinary language versus technical language question reaches into almost all of the domains of legal interpretation.


Larry Alexander: Legal Positivism and Originalist Interpretation
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Legal Positivism and Originalist Interpretation (Revista Argentina de Teoria Juridica, 2015, forthcoming) on SSRN.  Here is the abstract:      

The topic I have been assigned for this keynote address is the relationship between legal positivism and originalist theories of interpretation. Fortunately for me, there is indeed a relationship between these two things, and a strong one at that. Or so I shall contend.

My plan is as follows: I shall first give an account of legal positivism. That account will be brief, no more than a sketch, but hopefully not a caricature. But it will be sufficient for demonstrating the relationship between legal positivism and originalist interpretation.

After my brief portrayal of legal positivism, I shall turn my attention to originalist interpretation. I shall show why legal positivism supports originalism. And I shall conclude by discussing various objections to originalism, objections that nevertheless can be successfully parried.


Gerard Magliocca on the Seventeenth Amendment
Michael Ramsey

At Balkinization, Gerard Magliocca: The 17th Amendment and Federalism.  From the introduction:

In recent remarks at Princeton, Justice Scalia commented in a Q&A that federalism is dead and that the culprit was the Seventeenth Amendment, which ended the election of national Senators by state legislatures. While many conservatives hold this view and some have advocated the repeal of direct Senate elections, I think this is a false claim that rests on a misunderstanding of politics and history.

Try out a simple thought experiment. The California Legislature is controlled by Democrats, thus any Senator elected by them would be a Democrat. Does anybody think that this Democrat would be more interested in federalism than Diane Feinstein and Barbara Boxer are? I doubt it. Why is that?  Because Democrats in California share the views and interests of the national party for the most part.

And further: 

... [T]he Seventeenth Amendment didn't actually do much to protect federalism. National power increased significantly from 1791 to 1913.  (In part, this was because in many states Senators ran the political machine that elected the state legislature, not the other way around.) Likewise, there is no indication that Senators thought differently about federalism once they were elected directly by the people, if you compare, say, 1920 versus 1910.

Maybe.  I agree this is a somewhat underexamined claim by federalists.  But as to the first point, state legislators, even if aligned with the national party on most things, still have to run the state, and so (I expect) will think in practical terms about running the state in a way that modern Senators may not.  As to the second point, true, but the real growth of the federal government at the expense of the states began in the 1930s.   How much of that can be charged to the Seventeenth Amendment is a fair question, but it seems undeniable that the period after the amendment was adopted saw much greater growth of national power than the period before.  (Note: Professor Magliocca has several other interesting points but these two seem like his strongest).


Philip Hamburger on Adrian Vermeule on Philip Hamburger
Michael Ramsey

Philip Hamburger  (Columbia University - Law School) has posted Vermeule Unbound (Texas Law Review, forthcoming) on SSRN (responding to Adrian Vermeule's review of his book Is Administrative Law Unlawful?).  Here is the abstract:      

After espousing administrative power as a sort of unbound power, Adrian Vermeule attacks my critique of administrative power in an unbound manner. It therefore is difficult to avoid wondering whether there is a connection. On behalf of an indefensible power, is it necessary to adopt an indefensible mode of argument? Administrative power must be unlawful if this is its best defense against my book.


Does Inaccuracy in Madison’s Notes Matter?
Mike Rappaport

Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize.  While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article.  I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.

The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is.  If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem.  By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.

Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach.  Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution).  An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.

If one is looking for the public meaning, why would one care about Madison’s Notes and their possible inaccuracy?  Some people suggest logically it should not matter.  But I think that is mistaken.  Madison’s Notes could tell us a variety of things about the Constitution.  They could tell us about:

(1) the meaning of words at the time,

(2) the interpretive rules that were employed,

(3) the legal system at the time in general,

(4) the values of people at the time,

(5) how different clauses were interpreted.

The essential point, though, is that there is nothing special about this information because it comes from the drafters.  If we have similar information from equally learned and knowledgable people who were not at the convention and was published in a newspaper, that information would be equally important.  There is nothing sacrosanct about the drafters.  And the same holds for the ratifiers, even though their act make the Constitution the law of the land.  We are not looking for their intent. 

Thus, if Madison’s Notes are not accurate in certain places, that might mislead us.  But as a practitioner of the original methods version of original public meaning, that does not tell terribly upset me.  I don’t place tremendous emphasis on the Notes.  Instead, I look to all of the evidence of the time – evidence from Ratifying Conventions, from newspaper articles, from letters, from dictionaries, etc.  All of these pieces of evidence have problems, so it is not a big deal that Madison’s Notes also have problems.

The Bin Laden Raid, Originalism and Nonoriginalism
Michael Ramsey

At Opinio Juris, Deborah Pearlstein argues that if the raid that killed Osama bin Laden violated the UN Charter, it violated U.S. law: Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land.  Michael Dorf appears to take a similar view at Verdict: Are the “bin Laden” Memos the New Torture Memos? (I say "appears" because it's not clear whether he's talking about a violation of domestic law or a violation of international law).

I agree, as a matter of the Constitution's original meaning.  And I see a broader point about nonorignalism as well.

To begin, the argument is that the raid violated Article 2(4) of the UN Charter, which prohibits use of force against the "territorial integrity or political independence" of a member nation (in this case Pakistan), subject to an exception (Article 51) for self-defense.  Let's assume this argument is correct (although in fact I think it's very weak under the original meaning of the Charter).  The UN Charter is a treaty, meaning that it is part of the "supreme Law of the Land" under Article VI of the U.S. Constitution.  But it is a non-self-executing treaty, say the courts (and I agree for reasons I'll get to shortly).  At minimum that means it is not judicially enforceable in U.S. court.  According to the CIA, apparently that also means it is not binding on the President.  Professor Pearlstein disagrees:

This view embraces a fundamental misunderstanding of the doctrine of self-execution, before and even after the Supreme Court’s 2008 decision in Medellin [v. Texas]. A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without implementing legislation. Non-self-executing does not mean non-binding as law, nor could it. The Supremacy Clause is clear: “The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made … shall be the supreme law of the land.” The President would never suggest, for example, that because Bivens actions are not available to enforce some violations of the Constitution against the federal government – that the Constitution itself is not binding on the President. Quite the contrary, the President is legally bound by his obligations under the Constitution, and under “all treaties made,” no matter what subsequent enforcement mechanisms may be available.

I think this is right, although it requires a little more analysis.  (The following is based on my forthcoming article on non-self-execution).  "[A]ll" treaties are supreme law of the land, per Article VI.  The reason some are not judicially enforceable is that they are not addressed to the judiciary, but instead are addressed to other branches of government -- either expressly, or because they create obligations only other branches can fulfill.  For example, a treaty provision that calls on Congress to enact legislation would be non-self-executing (and wouldn't create any obligations on the President either, until Congress enacts implementing legislation).  So actually it is very often true that a non-self-executing treaty provision does not create any obligations for the President.

Article 2(4) of the Charter is a little different, because it does not appear to create obligations only for Congress.  It's reasonable to conclude that Article 2(4), addressing military decisions within the President's core constitutional power, involves matters textually committed to the President (and to Congress if a declaration of war is involved) not subject to judicial review.  It is, in a sense, a political question.  Does that mean the Charter provision is part of U.S. law binding on the President, but just nonjusticiable?  I think so.  The framers were clear that giving treaties the status of supreme law made them the equivalent of statutes for domestic law purposes (for citations, see my forthcoming article).  Thus the President's take-care obligation should extend equally to them, to the extent treaty provisions govern something within the President's executive power to implement -- as Article 2(4), as applied to the bin Laden raid, does.  (There's a wrinkle here about whether Congress' post-9/11 AUMF authorizes the President to violate treaty law, which I'll ignore for simplicity).  In sum, if the raid violated Article 2(4) the President was bound (as a matter of domestic law) not to authorize it, just as if it violated a U.S. statute.

But let's be clear: this is a textualist/originalist argument (though Professors Pearlstein and Dorf don't say so).  I don't see nonoriginalism being able to reach such a clear conclusion.

The core goal of most versions of nonoriginalism is to update the founding document in light of modern practice, values and circumstances.  Here there have been substantial changes in circumstances.  In the eighteenth century, treaties were typically bilateral, focused on particular issues of mutual interest; there were not very many of them, and getting out of them did not entail enormous structural costs, particularly when they were violated by the other party.  In the post-World War II era, however, multilateral treaties are more common.  They (the UN Charter in particular) aren't based on mutual promises between two nations, but rather serve as a framework for international interaction among many nations with sharply differing outlooks about many things including the value of compliance.  Whether the President should be inflexibly bound, as a matter of domestic law, to comply with every aspect of such treaties in all instances is doubtful as a matter of realistic foreign relations, and in any event it's a wholly different question from the issues of treaty compliance faced by the framers.  There's a strong argument that, at least when vital U.S. interests are at stake, modern circumstances require the President to have some flexibility.

Further, the principal concern underlying inclusion of treaties in the supremacy clause wasn't U.S. compliance with treaty obligations; it was states complying with treaty obligations.  As is well known, states routinely violated U.S. treaty obligations in the Confederation period, creating all sorts of problems for the national government, which wanted the treaties enforced but lacked power to enforce them.  Article VI of the Constitution was designed to fix that problem. It's less well known -- but highlighted in this outstanding article by David Moore -- that the founding generation was willing to have the national government violate international law obligations when practicality suggested it.  And in any event, Congress under the Constitution can violate a treaty (even a self-executing treaty) by passing a later-in-time statute, so it's unclear why we should be so concerned not to give the President similar flexibility.

Finally, U.S. courts, including the Supreme Court, have said (in dicta) that non-self-executing treaties are not only not judicially enforceable but are not federal law absent implementation by statute.  The Court said in Medellin, for example, that "This Court has long recognized the distinction between treaties that automatically have effect as domestic law [meaning self-executing treaties], and those that . . . do not by themselves function as binding federal law [meaning non-self-executing treaties]."  (552 U.S. at 504).  I agree with Professor Pearlstein that this distinction is inconsistent with the text and original understanding.  But I do not see how it is necessarily inconsistent with the modern Constitution, updated to take into account modern values and circumstances.

The response from nonoriginalists, I take it, would principally be that inflexible compliance with international law by the President is a core value that should be constitutionalized (this seems to be Professor Dorf's point).  But that is ultimately a policy judgment with which one might reasonably disagree.  So I don't see how nonoriginalism reaches such a firm conclusion about the bin Laden raid (and I note that commentators are quite willing to use textualist/originalist arguments when it suits them).  And assuming the CIA is operating in a nonoriginalist world, its conclusion therefore seems defensible.

UPDATE: At Just Security, Marty Lederman also argues that the Charter, though non-self-executing, is binding on the President as a matter of domestic law.


Calabresi on the Goodness of Federalism and Presidentialism in the U.S. Constitution
Mike Rappaport

While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States.  In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution.  Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system and its use of a presidentialist executive.

Steve Calabresi has a new article out that ably defends the U.S. Constitution.  Calabresi acknowledges the problems with federalist and presidentialist systems, but argues that the U.S. Constitution avoids these problems with distinctive features that have not been employed by other countries that have adopted these systems.

Federalism.  The main problem with a system of federalism is that it can too easily lead to secessionist movements, as is illustrated in many places in the world today, including the UK and Canada.  Calabresi argues that two features of the U.S. constitutional system mitigate these problems.  The U.S. employs a large number of states and those states do not reflect cultural and political views.  By contrast, imagine the U.S. system if it had four states – the Northeast, the South, the Midwest, and the West.

Secessionist movements would be much stronger in the latter world for two reasons.  Under our current system, a bunch of states need to form together to establish a secessionist movement and that is more difficult with a large number of states.  Moreover, some of the states are mixed culturally and politically and that makes it less likely that the states will join or agree with the movement.  While the U.S. had a devastating secessionist movement leading to the Civil War, the fact that there were border states (and many of them did not secede) is one of the reasons the Union was preserved.

Presidentialism. The main problem with a presidentialist system is that it can devolve into a presidential dictatorship.  As Calabresi states, “the sad fact is that almost every other democracy in the world that sought to copy the U.S. presidential system has degenerated at some point or another into a presidential dictatorship.”  Sad, indeed.

But again the problem is that those countries “have rarely copied other critical features of our constitutional system that check and balance presidential power.”  Calabresi identifes four critical checks and balances.

First, “American presidents are elected for only a four-year term with a two-term limit, and midterm elections must be held two years into a four year presidency and again six years into an eight-year presidency.”  Those midterm elections constitute a critical check on a new president, as I argued in this piece.

Second, the American system has a strong congressional system of oversight. Congress has the subpoena power and the Senate can confirm or reject presidential appointments.

Third, American presidents cannot declare states of emergency or propose national referenda (unlike the Weimar Republic or the President of France).

Fourth, U.S. presidents are subject to judicial review by a life-tenured federal judiciary headed by the Supreme Court "whose members today serve an average of twenty-six years in office."  The Supreme Court is "almost always dominated by the appointees of prior presidents that often belonged to the opposite political party from the incumbent president.”

The lesson that Calabresi teaches in this essential article is that it is not individual features of the system that are important, but the overall system and the checks and balances that it establishes.

Allegiance and Illegal Immigration
Andrew Hyman

The Constitution says that immigrants are entitled to birthright citizenship only if they are "subject to the jurisdiction" of the United States.  Mike Ramsey has  written here at this blog that, “[T]here is no sense in which children of illegal aliens are not ‘subject to the jurisdiction’ of the United States.”  But, as I have mentioned before, this word “subject” can be defined in many different ways (see this dictionary).

The best definition of the word “subject” in this context is “owing allegiance”.  Earlier this year, Professor Rob Natelson wrote a piece in the American Thinker explaining that the U.S. Supreme Court adopted this “allegiance” definition in 1884 and has never repudiated it.  The concept of "allegiance" was traditionally used to determine whether a person is a “subject” of the crown.

In England there were four different kinds of allegiance, as detailed by Lord Coke in Calvin’s Case.  The pertinent one here is called “local allegiance” or in Latin “ligeantia localis”.  So our question about illegal immigration should boil down to whether an illegal immigrant to the United States owes a local allegiance to the U.S. according to accepted legal doctrine in 1868.  If you look at that last link I just gave, Lord Coke explained that “ligeantia localis” occurs “when an alien that is in amity cometh into England….”  I very much doubt that someone is in amity who jumps ahead of line and sneaks across the U.S. border while evading American law enforcement.  I could be mistaken about this.  It could be that such a person is technically in amity as long as he carries no weapon, or is not a soldier, or something like that, but I doubt it.  As far as I know, there is no sense in which illegal aliens have ever come into the United States in "amity", unless taken by force (such as during the illegal slave trade).

The question whether the child of a resident illegal alien is subject to the jurisdiction of the U.S. is not easy.  As Professor Natelson says (at the link above), “Anyone who tells you this is an easy question is not telling you the truth.  It is an extraordinarily difficult question.”  And the answer to that question is certainly not provided by the ambiguous quote from Jacob Howard that recently appeared at this blog.  Professor Natelson is correct that "anyone who reads Senator Howard’s comment in context can see that it actually is ambiguous."

Podcast: Is the death penalty unconstitutional?
Michael Ramsey

At the National Constitution Center's Constitution Daily website, John Stinneford (Florida) and Elizabeth Wydra (Constitutional Accountability Center) debate whether the death penalty is unconstitutional (with originalist-oriented arguments on both sides).


Heather Gerkin and Richard Primus on Mary Bilder on Madison
Michael Ramsey

At Balkinization, two great posts on Mary Sarah Bilder's outstanding book Madison’s Hand: Revising the Constitutional Convention:

Heather Gerkin: James Madison as an Unreliable Narrator (describing this conference on the book).  

While the book is understated and even-handed, it is sure to kick up controversy. That’s because it raises an important question: What do we make of the fact that Madison is an unreliable narrator? What do we make of the fact that the notes on which so many have relied were altered in self-interested ways? That Madison papers over controversy and shows what Professor Bilder calls a “discomfiting willingness” to conceal his responsibility for mistakes? That his story apparently changed not only due to his own effort to paint his place in history, but due to Jefferson’s pernicious influence?

I suspect that many will be shocked by Madison’s conduct, and these revelations certainly ought to spawn a spirited methodological discussion among originalists. Those who dislike originalism will also be tempted to pounce. The “read the mind of the Framers” variant of originalism is now passé, but still. If the views of one person are this hard to untangle, how do we gauge the views of a nation? Moreover, the book makes clear there is a gap between original public meaning and the true intent of the Framers, as things were passed for reasons that we might not guess from the text.

And Richard Primus pounces: Madison's Journal and the Appeals of Originalism.

I suspect that Gerken is correct that something in Bilder’s point will bother many originalists, even public-meaning originalists.  Not all originalists—I’m confident that some public-meaning originalists who are thoughtful and self-aware about their originalism won’t be rattled, precisely because they understand that on an original-public-meaning view there’s no reason to care whether Madison was an unreliable narrator of the Convention.  But I do think that many originalists would in fact by rattled by Bilder’s book and by the more general point it represents.  So it’s worth thinking a bit about just what the problem might be. Why would originalists care that the journal is in many respects unreliable?


Here’s a hypothesis offered as a partial explanation—only partial, to be sure. It’s that internalizing what we ought to know about the limits of Madison’s journal would mean admitting something deeply inconvenient about originalism—not about any particular theory of originalism, but about many of the reasons why originalism is appealing in the first place.  And by treating Madison's journal as if it were a stable narrative, we act in accordance with those same things that make originalism appealing.

Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask in the glory of the Founders, (3) the (Levinsonian) Protestant-democratic promise that we can go to the real, popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars, and (4) the sense, when one is immersed in the original sources, that one is in some way inhabiting the heroic world of characters whose stories are central to American national identity.  The idea that Madison’s journal is unreliable can threaten all four.  It threatens (1) in a diffuse but powerful way, by destabilizing a text that people as a matter of practice treat as if it were stable authority.  It threatens (2) because the idea that Madison deliberately shaded his story recasts him as a villain, or at least an angle-playing pol, rather than a statesman.  It threatens (3) because it reminds us that reconstructing history is difficult; it requires a lot more work than reading a text or two, and that recognition threatens to throw us back into the arms of a professional elite—a scholarly one—that has the skills and has invested the time to be able to say, with the sort of authority that Bilder’s book can command, when an old text can be trusted and when it cannot be.  And it threatens (4) because it reminds us that the long-ago heroic world of the Founders is considerably less accessible to us than we might have hoped.

I think Professor Bilder's book is an enormous contribution, and so, I expect do most originalists (see here from Larry Solum).  I think it is not common to regard Madison's notes as canonical, particularly as to some abstract principles from which specific guidance can be deduced.  Indeed, I'm tempted to say that people who think otherwise have a cartoonish view of originalism.