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38 posts from December 2015


Harlan Cohen: The Death of Deference and the Domestication of Treaty Law
Michael Ramsey

Harlan Grant Cohen (University of Georgia School of Law) has posted The Death of Deference and the Domestication of Treaty Law (Brigham Young University Law Review, forthcoming) on SSRN.  Here is the abstract:

How much deference do courts give to Executive branch views on treaty interpretation? The Restatement (Third) of the Foreign Relations Law of the United States tells us that courts “will give great weight to an interpretation made by the executive branch,” and earlier empirical studies suggested that deference to Executive in such cases was robust. But is that still the case? The Supreme Court’s rejection of the Executive’s view in a series of high profile cases including Hamdan v. Rumsfeld, BG Group PLC v. Republic of Argentina, and Bond v. United States should raise some doubts.

This short article investigates, taking a closer look at treaty interpretation during the Roberts Court era. First, it examines the question of deference. Supplementing anecdotal evidence with complete data sets of both Supreme Court and Circuit Court treaty interpretation cases from 2005-2014, it compares rates of agreement between the courts and the Executive branch to earlier periods. What this article finds is that, at least at the Supreme Court, there has been a significant shift. Given how rarely the Court follows the Executive’s views on the meaning of treaties, it might be fair to say that the Court does not defer at all. Second, this article looks more closely at how the Supreme Court has framed the treaty questions before it and focused, where possible, on domestic rather than international sources. The trend has had similar results to the first: increasing the Court’s interpretative authority at the expense of the Executive. Together, this article argues, these trends seem strong enough to warrant at least mention in the Restatement (Fourth). But they may even be strong enough to warrant a new approach to treaty interpretation cases that might rationalize these trends and forge from them into usable doctrine. The article sketches out how a broader “normalization” of treaty interpretation might accomplish that goal.
This is a somewhat tough issue on originalist grounds.  On one hand, the original Constitution (in my view) gives the President substantial authority over foreign affairs through the grant of "the executive Power."  This might justify a position of judicial deference.  On the other hand, the framers plainly (in my view) understood the inclusion of treaties in Article VI as making treaties the equivalent of statutes (see my article in the same BYU symposium issue).  That seems to suggest no deference (or, no more deference than in statutory interpretation).  Add to the second point the fact that there is little evidence of deference to the executive in early post-ratification treaty interpretation; deference seems rather to be a product of the early-to-mid twentieth century, when the courts inappropriately ceded foreign affairs power to the executive on multiple fronts.  So I think the non-deferential view is the better one.



Seth Barrett Tillman on Amar and Lessig
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: A Critique of Two Left-of-Centre Views of the United States Constitution: Professor Akhil Amar & Professor Lawrence Lessig.  From the introduction:

Professor Akhil Amar (Yale Law School) and Professor Lawrence Lessig (Harvard Law School) have both written on the scope of the Constitution’s office-language. Indeed, their individual views on the scope of the Constitution’s office-language are central to (some of) the leading theories they have each popularized. 

Professor Amar has written repeatedly that the Constitution’s “Office ... under the United States”-language (including its textual variants) does not reach members of Congress (although it does encompass the presidency). Amar’s views on this point are central to his understanding of the Presidential Succession Clause and the several impeachment-related clauses in the Constitution. ...

By contrast, Professor Lessig has expressed the view that the Constitution’s Foreign Emoluments Clause, which uses Office ... under the United States-language, does reach members of Congress (and, apparently, the presidency). Lessig’s views on this point are central to his anti-corruption centred analysis of the original Constitution, and to his understanding of the First Amendment and of the permissible bounds of the regulation of political speech. ...

Professor Amar and Professor Lessig cannot both be correct.


David D'Amato on Libertarians and Originalism
Michael Ramsey

At Liberty Law Blog, David S. D'Amato: The Judicial Necessity of Constitutional Choice.  In conclusion:

... Even for a committed libertarian, the insistence that the Constitution “just is” a consistently libertarian instrument strains credulity on its face. What is rather clearer, perhaps, is that it ought to be a libertarian instrument—that judges should read it as protecting the natural rights of the individual; this, of course, is a philosophical claim and is distinctly at odds with the argument of most libertarian originalists.

Indeed, they tend to actively deemphasize the role of their own convictions in reaching their constitutional conclusions. [Randy] Barnett, for example, asserts that “We are not pushing a libertarian reading of the Constitution.” Yet we can hardly regard it as mere coincidence that the original meaning as conceived by the libertarian legal community aligns quite neatly, almost perfectly, with their normative commitments and political ideology. What are the chances that all libertarian policy prescriptions are so seamlessly consistent with a principled originalist method of constitutional interpretation? Or as philosopher Jacob T. Levy recently remarked, “Your views about what laws are bad shouldn’t align too closely with your theory of what laws are unconstitutional.”

So while the particular and peculiar brand of libertarian originalism is not without appeal, especially for one who is already a radical libertarian, it often appears too convenient. As Professor Mark R. Killenbeck writes, this “ ‘new originalism’ is incredibly seductive,” but its unique and delicately assembled recipe of historical and philosophical claims are ultimately a bridge too far.

Moreover, libertarian faith in the judiciary may be misplaced, with judges likely to be more statist and Progressive than most Americans. Indeed, the federal bench in particular is likely to be even more confident in the boundless benevolence of omnipotent government than either house of Congress. As Judge Richard Posner observed in a 2009 interview with Russ Roberts, “Really the Supreme Court has written a pretty blank check to the government.”

As libertarians and conservatives, we ought not needlessly bind ourselves to any particular interpretive idiosyncrasy. Our Progressive adversaries feel no such arbitrary compulsion to adhere to any fixed method of interpretation, for they accept, at least tacitly, that all such methods are themselves grounded in normative ideas. Sunstein’s book is refreshing in its acknowledgment of this fact. The Constitution has been a kind of Rorschach test, seeming to recommend whatever politico-economic philosophy or program its interpreter espouses.

As unpalatable as it may be to us as libertarians and conservatives, living constitutionalism of some variety may well be the interpretive method most amendable to libertarian ideas, affording the adaptability necessary for transitioning from the soft-authoritarian Progressivism of the present moment (which, we should note, is supported by mountains of precedent) to a free society with a limited government.

A strong statement indeed, although one might think the third-to-last paragraph somewhat in tension with the last paragraph.  I guess the question for libertarians is, are you more likely to convince legal elites of libertarianism or of originalism which (at least to some significant extent) produces libertarian results?


Constraining Executive Illegality Through an Advisory Court
Mike Rappaport

Under the Obama Administration, the executive branch has engaged in numerous actions where it has refused to follow statutes – either on the grounds that the statute implicitly allows it discretion or that the Constitution renders the statute unconstitutional.  As has often been noted, these actions are often quite questionable on a legal basis.  But there is little that can be done if no one has standing to challenge the action in court unless the Congress is willing to bring impeachment charges, which is generally politically unattractive.  In a previous post, I discussed using anti-severability provisions in statutes.  While that can help, it will not deter a very willful President.  Here, then, I have another statutory reform.

Congress should pass a law that would establish a “court like entity.”  The entity would consist of 5 judges, to serve for 10 year terms, selected from retired judges who had served on the U.S. Supreme Court or the federal circuit courts.  One of the judges would be appointed by the President with the advice and consent of the Senate.  Two would be appointed by the Speaker of the House, with the advice and consent of the House of Representatives.  And the final two would be appointed by the Senate Majority Leader, with the advice and consent of the Senate.  The appointments would be staggered, so that a new judge would be appointed each year.  The court should also be required to be bipartisan, with three members of one party and two of the other party. 

The court would have “jurisdiction”concerning all issues of federal law, especially those where it is likely that no person will have article III standing in the near future.

The “court like entity” would not be an actual court.  Its judgments would not be binding, but would simply be advisory.  Since the judgments would not be binding, the appointment process and the lack of standing, which would normally render it unconstitutional, would not defeat its constitutionality.

Since the court would not have power to issue binding judgments, one might ask what is the point?  But if the members of the court were from both political parties and were well respected former judges, its decisions would have moral authority.  A decision reach by such a court with former justices and judges of both parties would make it more difficult for a President to simply ignore it.  For example, if Democratic justices and judges concluded that an action by President Obama action was unconstitutional, it would be more difficult for the Administration to dismiss it as simply partisan.

One might try to go further and establish an enforcement mechanism.  This is more difficult, both institutionally and constitutionally.  But one possibility is to provide that if the advisory court concludes that an action is unconstitutional, then the administration has the choice to reverse its decision if that is still possible.  If the action has already been completed, the administration has the choice to announce that it now accepts the advisory court’s decision.

If the administration takes neither action, then there could be a House and Senate rule that requires a reduction in some type of statutory authority that the administration cares about.  For example, the appropriations for White House operations might be reduced by 10 percent from the previous year.  As a legislative rule, the houses would have authority to ignore this rule, but such rules are often followed.  This is especially the case when a rule is enforced by a point of order that can only be waived by a supermajority, such as 3/5 or 2/3 of the house.  While a majority would probably have authority to ignore or repeal that supermajority requirement, this is rarely done.

Since a majority of each house would not be bound by the rule, there is a reasonably strong argument that the arrangement would be constitutional.  After all, the Congress can choose to reduce funding for the President if it believes the administration is behaving improperly.

William Carter: The Abolition of Slavery in the United States
Michael Ramsey

William M. Carter Jr. (University of Pittsburgh - School of Law) has posted The Abolition of Slavery in the United States: Historical Context and Its Contemporary Application (The Legal Understanding of Slavery: From the Historical to the Contemporary (Jean Allain, ed., Oxford Univ. Press, 2012)) on SSRN.  Here is the abstract: 

The Thirteenth Amendment to the Constitution of the United States of America marked the legal end of slavery in the United States. By declaring that ‘neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction’, the Amendment enshrined freedom in the country’s fundamental charter. As this chapter will demonstrate, the Thirteenth Amendment’s Framers intended to eliminate both chattel slavery and the ‘the badges and incidents’ of slavery. Those Framers, whose worldview was grounded in natural rights and abolitionist theory, knew that abolishing the property relationship of owner and owned would not by itself be sufficient to create enduring freedom. Rather, they believed that the legal practices and social customs surrounding and supporting the system of slavery must also be abolished if the freedmen were to enjoy the full benefits of citizenship. 

This chapter discusses those badges and incidents of slavery in American history and suggests lessons that can be drawn from that history to inform the movement to abolish contemporary slavery. In so doing, this chapter suggests that just as the Thirteenth Amendment’s Framers realized that slavery constituted a system of interlocking forms of subordination, so too should modern-day advocates, lawmakers, and judges recognize that abolishing slavery requires a broad and evolving understanding of the conditions that support or arise out of enslavement.


Brannon Denning & Sarah Bothma: Zone-of-Interests Standing in Constitutional Cases after Lexmark
Michael Ramsey

Brannon P. Denning (Samford University - Cumberland School of Law) & Sarah F. Bothma (Samford University - Cumberland School of Law J.D. '16) have posted Zone-of-Interests Standing in Constitutional Cases after Lexmark on SSRN.  Here is the abstract: 

In addition to satisfying Article III’s standing requirements, the U.S. Supreme Court has long included, as one of its non-constitutional “prudential” standing rules, a requirement that plaintiffs demonstrate that their claim is within the “zone of interests” protected by a statute or constitutional provision. In a recent case, Lexmark International, Inc. v. Static Control Components, Inc., the Court disavowed zone-of-interests standing in statutory cases. After Lexmark, courts need only determine whether a particular statute authorizes a plaintiff’s cause of action. If it does, the Court held, then courts are not free to prevent a plaintiff from bringing a claim out of prudential concerns. This paper asks whether zone-of-interests standing should be retained in constitutional cases, an issue not before the Court in Lexmark. We conclude that it should not be; the Court should pursue Lexmark to its logical conclusion and eliminate zone-of-interests standing entirely. After charting the course of the zone of interests test in statutory cases from its inception to the Court’s disavowal of it in Lexmark, we examine the role it has played in constitutional cases in the Supreme Court and in the lower courts. We argue that (1) zone-of-interests standing rests on a constitutionally-dubious foundation; (2) existing doctrines better perform whatever useful functions the test was thought to serve; and (3) that the practical difficulties that bedeviled the Court’s application of the test in statutory cases remain and multiply in constitutional cases. We also consider, but reject, arguments that the test is useful for preventing courts from being flooded with certain constitutional claims or that it ought to be retained, but only for a few constitutional claims, like dormant Commerce Clause challenges.

I agree.  Die, zone of interest test, die.


Nathan Chapman: The Jury's Constitutional Judgment
Michael Ramsey

Nathan S. Chapman (University of Georgia School of Law) has posted The Jury's Constitutional Judgment (Alabama Law Review, Vol. 67, p. 189, 2015) on SSRN. Here is the abstract:   

Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?

This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the facts of a case and offer solid, though mixed, support for the longstanding doctrine against the jury’s right to nullify statutes on the basis of its own constitutional view.

The Article furthermore makes a case for the jury’s unique “constitutional competence.” Composed of a diverse group of lay people, the jury brings popular values to bear on the application of constitutional law. By deferring to the jury’s reasonable constitutional judgments, courts make room for popular constitutional norms on a case-by-case basis without forgoing the responsibility to “say what the law is.” The resulting constitutional construction is a middle ground between judicial supremacy and judicial abnegation that promises a more symbolically and substantively democratic constitutional law.

Via Larry Solum at Legal Theory Blog, who says "very interesting & recommended."


Happy New Year, Christmas, Hanukkah, etc.
Andrew Hyman

I’ve enjoyed contributing here for a couple years, every once in a while.  My thanks to Mike Rappaport, Michael Ramsey and the Center for the Study of Constitutional Originalism at the University of San Diego School of Law for that continuing opportunity.

Borrowing from the preamble of the Massachusetts Constitution, I wish you the power of enjoying in safety and tranquility your natural rights, and the blessings of life, prosperity, and happiness. May you continue to support an equitable mode of making laws, as well as an impartial interpretation and a faithful execution of them; that everyone may, at all times, find our security in them.


Joshua Tate: Magna Carta and the Fundamental Right to Due Process
Michael Ramsey

Joshua C. Tate (Southern Methodist University - Dedman School of Law) has posted Magna Carta and the Fundamental Right to Due Process (Magna Carta: 800 Anos de Influência no Constitucionalismo e nos Direitos Fundamentais (Zulmar Fachin, Jairo Néia Lima, and Éverton Willian Pona eds., 2015), pp. 129-137) on SSRN.  Here is the abstract:  

The 800th anniversary of Magna Carta has been marked by much pageantry and celebration. Some scholars have taken this opportunity to point out that the myth of Magna Carta is far greater than what the actual 1215 Charter managed to accomplish. Nevertheless, Magna Carta did make a meaningful and concrete contribution to due process in 1215, as shown by certain provisions that are seemingly overlooked by critics eager to downplay the Charter's importance. This Article highlights two lesser known clauses of Magna Carta that had real contemporary significance in guaranteeing the availability of jury trial for some categories of civil litigation. The ringing promises of Clauses 39 and 40 may have inspired great jurists and founders of nations, but the more humble Clauses 17 and 18 – specifying the proper location and manner of hearing certain civil cases – must also be taken into account in assessing the Charter's importance.


Lash on the Fourteenth Amendment
Mike Rappaport

In my view, the hardest part of the Constitution’s original meaning to understand is the 14th Amendment.  While we have made great progress in understanding this provision, we unfortunately do not yet have a satisfactory theory of the Clause. 

One of the scholars who has written about the Amendment is Kurt Lash.  Kurt has written several articles on the Amendment that culminated in the publication of a book.  On the Liberty Law Blog site, Kurt has written several posts defending his interpretation of the Amendment.  Kurt defends a view that I used to hold, but no longer do so – that the Privileges or Immunities Clause of the 14th Amendment protects against state infringement of the constitutionally enumerated rights of citizens of the United States.  Here I thought I would explain some of the strengths and weaknesses of this view, and identify why I now adopt a different interpretation.  (I should note that while I have read the articles on which Kurt’s book is based, I have not yet read the book.)   

Adequate theories of the original meaning of the 14th Amendment must do several things.  Two of the most important are to give effect to the text of the Privileges or Immunities Clause and to explain how the Amendment established an equality requirement that rendered the black codes, which discriminated against former slaves, unconstitutional. 

One of the strengths of Kurt’s theory is that it gives a straightforward account of the text of the Privileges or Immunities Clause.  The Clause provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  Under Kurt’s view, these “privileges or immunities” refer to the rights enumerated in the U.S. Constitution.  This is a very plausible reading of the language.  And Kurt provides some evidence in favor of it from the historical record. 

Another attractive feature of this reading is that it provides a clear indication of what these rights are.  Other interpretations of the Clause have struggled to define precisely what rights are protected.

The problem for this view concerns the second requirement of an adequate theory of the 14th Amendment: that it explain how the black codes were unconstitutional (and more generally how the Amendment imposes an equality requirement).  Presumably, Kurt believes that the Equal Protection Clause imposes that equality requirement.  But there are serious problems with this interpretation as a matter of the original meaning.

As John Harrison, Chris Green (and many other authors) have argued, the Equal Protection Clause does not really do what modern interpretations say it does.  The text of the Clause – which provides that no state “deny to any person within its jurisdiction the equal protection of the laws – does not prohibit states from passing “unequal laws.”  Instead, it identifies what was at the time a well known legal category – the protection of the laws – and requires that it be equal.  The protection of the laws referred largely to remedial matters – the laws and institutions that protected people’s rights (but for the most part not the rights themselves).   Thus, the Clause prohibited states from not protecting the rights of the former slaves (and other groups).  Moreover, there was a good reason for imposing this requirement: it specifically prohibiting southern sheriffs from looking the other way when militant groups lynched blacks. 

But under this reading, the Equal Protection Clause does not require that a significant portion of substantive rights be equal.  It is largely up to the states to decide what rights should be protected.  And therefore there is no prohibition against state laws discriminating against the rights of blacks. 

If the Equal Protection Clause had this meaning, then this is a serious problem for Kurt’s theory.  Since the Privileges or Immunities Clause under his view does not protect the equality rights of citizens, Kurt appears to be left with no provision that imposes that equality requirement.  And that would constitute a serious defect in an interpretation of the 14th Amendment.  

Kurt has emphasized that the Comity Clause is included within the Privileges or Immunities of citizens of the United States, but that Clause protects against discrimination against out of state citizens, not against racial discrimination.  Ryan Williams has argued that the 14th Amendment Due Process Clause imposes an equality requirement, but Ryan’s argument has been disputed by Chapman and McConnell, and has not been generally accepted. 

Ultimately, Kurt’s theory requires that there be some basis for the equality requirement of the 14th Amendment.  While perhaps Kurt will find historical support for such a requirement in the future, until he does his interpretation of the 14th Amendment suffers from this serious defect.