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38 posts from December 2015


New Book: "Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation" by Brian Slocum
Michael Ramsey

Brian G. Slocum (University of the Pacific, McGeorge School of Law) has the forthcoming book Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (University of Chicago Press 2015).  Here is the book description from Amazon:

Consider this court case: a defendant has traded a gun for drugs, and there is a criminal sentencing provision that stipulates an enhanced punishment if the defendant “uses” a firearm “during and in relation to a drug trafficking crime.” Buying the drugs was obviously a crime—but can it be said that the defendant actually “used” the gun during the crime? This sort of question is at the heart of legal interpretation.
Legal interpretation is built around one key question: by what standard should legal texts be interpreted? The traditional doctrine is that words should be given their “ordinary meaning”: words in legal texts should be interpreted in light of accepted standards of communication. Yet often, courts fail to properly consider context, refer to unsuitable dictionary definitions, or otherwise misconceive how the ordinary meaning of words should be determined. In this book, Brian Slocum builds his argument for a new method of interpretation by asking glaring, yet largely ignored, questions. What makes one particular meaning the “ordinary” one, and how exactly do courts conceptualize the elements of ordinary meaning? Ordinary Meaning provides a much-needed, revised framework, boldly instructing those involved with the law in how the components of ordinary meaning should properly be identified and developed in our modern legal system.

Plus strongly positive reviews from William Eskridge (Yale), Steve Calandrillo (Washington) and Brian Bix (Minnesota).

(Via Larry Solum's Legal Theory Bookworm).



David H. Moore: Treaties and the Presumption Against Preemption
Michael Ramsey

David H. Moore (Brigham Young University - J. Reuben Clark Law School) has posted Treaties and the Presumption Against Preemption (BYU Law Review, forthcoming) on SSRN.  Here is the abstract:   

When deciding whether a federal statute that regulates domestic issues preempts state law, “the Supreme Court presumes that Congress does not intend to displace the traditional regulatory authority of the States.” The question arises whether this same presumption applies when the federal law at issue is a treaty. At this stage, the Restatement (Fourth) of the Foreign Relations Law of the United States replies that “[t]he case law does not clearly support any presumption regarding preemption of State law by a treaty.” This Article — part of the BYU Law Review Symposium on Treaty Law and the Restatement — demonstrates that there is (or should be) more clarity in favor of a presumption against preemption in the treaty context than the Draft Restatement suggests.


The Menial and Subservient Role that the Supreme Court has Assigned to Congress Regarding Affirmative Action by States
Andrew Hyman

Mike Ramsey recently blogged about Eric Segall’s op-ed in the LA Times defending affirmative action, in which Professor Segall pointed out that “the Equal Protection Clause does not even mention race.”  I would like to point out that even though the EPC does not explicitly address race, federal statutes certainly do.  In particular, check out 42 USC 1981:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

As someone committed to actual legal texts, I don’t really much care whether the framers of this federal statute were taking aim at race-based affirmative action, or even whether they practiced race-based affirmative action (or instead practiced affirmative action based upon other factors such as previous condition of servitude).  Justice Robert Jackson once made a very pertinent observation: “even the North never fully conformed its racial practices to its professions,” and it is very clear that 42 USC 1981 professes to ban a great deal of race-based discrimination.

I anticipate that readers may object like this: Hyman, don’t you know that federal statutes are irrelevant here because Congress only has an enforcement power under the Fourteenth Amendment via Section 5, and so Congress lacks power to decide or expand what Section 1 means?  To which my response is this: not so fast.  In some places, the Fourteenth Amendment specifically refers to things within congressional control quite apart from Section 5, such as naturalization in Section 1, and removal of disabilities in Section 3, for example.  Similarly, the Equal Protection Clause (EPC) refers to the equal protection “of the laws” which very deliberately includes both state and federal statutes.  I am not saying that 42 USC 1981 is self-executing, or even that it establishes a presumptive meaning of the EPC, but it does authorize the U.S. Supreme Court to identify and extract principles of equal protection applicable against the states.

Neither the EPC alone, nor 42 USC 1981 alone, requires the U.S. Supreme Court to ban race-based affirmative action by the states, but together they do exactly that.  Congress has a meaningful role here, and I hope some day the Supreme Court will recognize that Congress has more than a menial and subservient enforcement role under the EPC.  Professor  Segall is right that the EPC does not mention race, but the EPC is not the complete legal text at issue here.

Robert Natelson on Constitutional Conventions (Updated)
Michael Ramsey

Robert Natelson (Independence Institute, formerly Univ. of Montana) is guest blogging at Volokh Conspiracy on the original understanding of constitutional conventions.  Here are the posts so far:

How the judiciary’s decisions shed light on the federal amendments convention

How the states have used conventions and the amendment process to promote reform

How the Founders inserted the amendments convention into the Constitution

How past American conventions inspired the Constitution’s ‘Convention for proposing Amendments’

Professor Natelson is the author of (among many things) State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters.

UPDATE:  Today's post: How the ‘Convention for proposing Amendments’ became the subject of popular mythology.


Originalism and Muslim Immigration (Updated)
Michael Ramsey

A number of prominent scholars (including Eugene Volokh, Eric Posner and Peter Spiro) argue that Donald Trump's plan to stop non-citizen Muslims from entering the U.S. is constitutional (though wrongheaded).  They may be right as a matter of modern law.  But they all rely on the so-called plenary power doctrine, by which the courts have given Congress essentially unlimited power over immigration.

The plenary power doctrine has no basis in the Constitution's original meaning.  It was made up by the Supreme Court in the late nineteenth century, at a time that the Court declared an array of powers "inherent in sovereignty" so that the U.S. federal government simply must have them, irrespective of whether they were granted by the Constitution.  In short, the Court did not even pretend to find a basis for the doctrine in the Constitution.

Indeed, as discussed  here before, it's not even clear that Congress has full power to decide who enters the U.S. -- certainly it does not have that power expressly.  However, Congress likely does have something close to such a full power as the sum of its other powers -- most prominently, Congress could (I assume) use its power over commerce with foreign nations to prohibit anyone operating in foreign commerce from transporting specified people to the United States.

Looking at it this way puts the Trump plan on shaky constitutional ground.  The First Amendment provides that "Congress shall make no law ... prohibiting the free exercise [of religion]."  Denying a benefit specifically to all members of a particular religion seems inconsistent with "free" [unrestricted] exercise; plainly it is under modern law, per Church of Lukumi Babalu Aye v. Hialeah, and I think as well under the original meaning.  And no one doubts that the free exercise clause limits what Congress can do under its commerce power.  In short, the Trump plan calls on Congress (or the President acting pursuant to a delegation from Congress) to do exactly what the plain text of the First Amendment says Congress cannot do.

Here is the counter.  Arguably under the original meaning the rights in the First Amendment (and elsewhere in the Constitution) apply only to U.S. citizens and to non-citizens present in the United States.  Andrew Kent (Fordham) explores this broader claim in this outstanding article from 2007: A Textual and Historical Case Against a Global Constitution.    In my view this is (or ought to be) the central constitutional question in the debate over the Trump plan: do non-citizens abroad have rights under the U.S. Constitution?  If so, the Trump plan seems plainly unconstitutional (as a matter of the original meaning); if not, then Congress indeed has something like a plenary power over immigration, although not for the reasons the Court gave in inventing the plenary power doctrine.


UPDATE:  Will Baude writes to point out that a number of important scholars have suggested that Trump's plan might violate the establishment clause.  The idea is that the clause forbids the government from favoring a religion, and denying benefits to one religion favors others.  If so, and if the establishment clause is understood as a structural provision that limits the federal government generally, rather than (or in addition to) protecting rights, then the fact that those harmed by the Trump plan are aliens outside the U.S. might not matter.  By similar reasoning, for example, the declare war clause limits the President's power to initiate war on his own, even if those harmed by the war are aliens overseas.  In this way, we might find the Trump plan unconstitutional without having to wrestle with the broader question of constitutional rights abroad.

I'm not at all an expert on the establishment clause, but finding it relevant to Trump's plan strikes me as implausible.  As I understand how the 1787-89 framers understood "establishment" of religion, it referred to the creation of a particular government-endorsed and supported Church such as the Church of England and the official religions of some U.S. states, and (I suppose) by extension it referred to the government endorsing or conferring benefits on a particular religion (or perhaps religion generally).  Trump's plan does not do this, except in the extremely speculative and indirect way of possibly encouraging some people to convert to Christianity.

Moreover, if one reads the establishment clause to prohibit penalties against a particular religion, that seems not to leave any operation for the free exercise clause.  For example, prohibiting Santeria rituals, as in Lukumi Babalu Aye, potentially encourages people to adopt a religion other than Santeria.  So (on the reasoning above) this would appear to convert that case, and others like it, into an establishment clause case.  That seems a strained way of looking at the text.  It seems more structurally sound to read the clauses as complementary: the establishment clause prohibits favoring religion, and the free exercise clause prohibits disfavoring religion.


Richard Re on Justice Kagan on Textualism
Michael Ramsey

At Re's Judicata, Richard Re: Justice Kagan on Textualism’s Success.  From the introduction:

Justice Elena Kagan recently gave the “Scalia Lecture” at Harvard Law School. The event, which is visible online, consisted of a conversation between Kagan and Professor John Manning. For those interested in interpretive trends at the Court, this video is worth watching.  As a scholar-jurist, Kagan speaks both broadly and specifically about her approach to text. And besides being erudite and accessible, the conversation manages to be charming, too.

Kagan’s lecture reinforces a conventional wisdom on textualism’s recent success. Early on (9:10), Kagan beautifully describes the Scalian turn in statutory interpretation while acknowledging its incompleteness. Over time, anti-textualist views have fallen away, so that the center of gravity has moved toward Scalia. Yet Scalia still lies near one end of a spectrum. Both Kagan and Manning adduced evidence of this shift. But the most powerful proof of this claim is the lecture itself. When Kagan, a recent democratic appointee to the Supreme Court, gives a “Scalia Lecture” at Harvard Law School and says (8:25) that “we’re all textualists now,” she has already gone a long way toward proving that point.

But even Kagan’s nuanced lecture, like the conventional wisdom, may give an exaggerated impression of textualism’s ascendance. While certain strong versions of purposivism are all but vanquished, the Court’s most recent term and even Kagan’s own comments suggest that a more moderate, evolved form of purposive reasoning is alive and well...

RELATED: This article by Professor Re expands on his idea of modern purposivism, as reflected for example in Yates v. United States and King v. Burwell, and especially as associated with Chief Justice Roberts.

ALSO RELATED: Justice Scalia wrote for a unanimous Court in Shapiro v. McManus, a highly textualist opinion released yesterday.


Lyle Denniston on Franchise Tax Board of California v. Hyatt
Michael Ramsey

Lyle Denniston at SCOTUSblog has an analysis of Franchise Tax Board of California v. Hyatt, an interesting federalism case that has not received much attention.  He explains:

Except for the fact that no one was wearing buckled shoes, knee breeches, and lace cuffs, an argument in the Supreme Court Monday might have been a reenactment of a day at the Constitutional Convention in Philadelphia 228 years ago.  It was all about what the states gave up, and did not give up, as part of the bargaining over a new Constitution.

That is what has become of the case of Franchise Tax Board of California v. Hyatt, a prolonged, multi-million-dollar tax fight between California authorities and a Nevada inventor.  It took the Court and the lawyers back to constitutional basics, because the California agency is trying to gain immunity as a “sovereign state” from being sued in Nevada state court by the wealthy inventor, Gilbert P. Hyatt.

One heard frequently about how the states, fretting over being haled into court to pay off their debts from the Revolutionary War, wanted assurances that that would not happen.  And one heard just as often about how the states still had plenty of opportunity, as part of the Union, to protect their own interests by making compacts among themselves to respect each other’s sovereignty.

Which, the Justices and lawyers pondered, was the “plan of the Convention”?  Not what the Founders would say if they were in the courtroom today, but what did they actually say that still rings true? ...

Eric Segall on Fisher v. University of Texas
Michael Ramsey

In the LA Times, Eric Segall has this op-ed on conservative Justices and Fisher v. University of Texas (to be argued tomorrow): A conservative quandary in affirmative action case Fisher vs. Texas.  From the core of the argument:

Conservatives normally insist that unelected judges should not overturn laws (like those relating to abortion or gay rights) unless the Constitution's text or its history is clear. But the Equal Protection Clause does not even mention race. How can self-identifying textualists like Justices Antonin Scalia and Clarence Thomas therefore conclude that the 14th Amendment prohibits the use of any and all racial preferences in university admissions?

Because the text cannot resolve the issue, conservative justices have looked to Justice John Marshall Harlan's dissenting opinion in the infamous case Plessy vs. Ferguson, which upheld separate seating for whites and blacks on public transportation. Harlan argued that “Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens. In respect of civil rights, all citizens are equal before the law.”

Harlan, however, was objecting to formal governmental rules intended to confer second-class citizenship on a distinct group of minority citizens. No reasonable person can believe that the University of Texas, by trying to increase the diversity of its classrooms, is trying to bestow second-class citizenship on anyone or any group. Unlike the state of Louisiana in Plessy, Texas is trying to bring the races together, not keep them apart, and all racial groups are welcome. Currently, the University of Texas is roughly 50% white and 50% people of color.

Conservative justices also usually privilege the original meaning of the constitutional text, giving weight to how lawmakers or the people at the time understood it. At the time the 14th Amendment was adopted, and shortly thereafter, the federal government had in place race-conscious programs to help newly freed slaves and other people of African descent. Any reliance on history in Fisher therefore undercuts the theory that the 14th Amendment was meant to enforce complete color-blindness, and supports the argument that programs designed to alleviate past racial discrimination are constitutional.

Mike Rappaport took on this argument (pretty effectively, I thought) a couple of years ago in this article: Originalism and the Colorblind Constitution.

SOMEWHAT RELATED:  Professor Segall and Judge Posner have this response to criticisms (from John McGinnis and Ed Whelan) of their New York Times column on Justice Scalia.  Ed Whelan comments further here.  Based on their response, it seems they are mostly contesting Justice Scalia's narrow view of the establishment clause.  They say:

On the basis of [Justice Scalia's] Establishment Clause opinions and his jurisprudence generally, we doubt that he would vote to invalidate the posting of a sign on the White House lawn stating: “We are a CHRISTIAN country and if you don’t like it, GET OVER IT.”

I'm not sure that's right.  As they quote Scalia later, “the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion.”  But the sign in the Posner/Segall hypothetical favors one religion over another, not religion over non-religion.  Scalia might consider that to be a difference of constitutional magnitude.  In any event, Posner and Segall don't make originalist arguments regarding the meaning of the clause.  Perhaps the clause's original meaning would allow the hypothetical sign (or, more likely, would allow government support for religion over non-religion, as Scalia favors).  In that case, their quarrel is with the framers, not with Scalia.


John McGinnis on the 21st Amendment
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Merriest Amendment and Constitutional Theory.  From the introduction: 

[December 5] was the 82nd anniversary of the [21st Amendment], repealing Prohibition, which had been imposed by the Eighteenth Amendment just fourteen years earlier. Repeal was a happy day, not only for those who drink alcohol but also for the many people saved from a culture of violence that the illegal business of evading Prohibition generated.

Beyond its good social consequences, the repeal of Prohibition has implications for constitutional theory. Many critics of our Constitution contend that the amendment process, which requires two thirds of Congress and three quarters of the states for enactment, is too strict. Moreover, critics claim that its excessive stringency has become even clearer as more states have joined the union. This argument is often used to support the claim that originalism needs to be discarded, since we need judges to update a Constitution whose amendment process is inadequate.

But Prohibition and its repeal provide a riposte to that claim. As Mike Rappaport and I argue in Originalism and the Good Constitution, the rapid consensus that the Eighteenth Amendment was a mistake supports our position that the amendment process is not too strict.  As stringent as Article V is, it still permitted enactment of a provision that was quickly admitted to be a costly failure, illustrating the dangers of a less stringent amendment process. And at the time there were forty-eight states in the union—just two fewer than we have today.


Jeremy Telman: Originalism: A Thing Worth Doing . . .
Michael Ramsey

D. A. Jeremy Telman  (Valparaiso University Law School) has posted Originalism: A Thing Worth Doing . . . (Ohio North University Law Review, Vol. 42, 2016, forthcoming) on SSRN.  Here is the abstract:      

Originalism in constitutional interpretation continues to grow in its reach, its sophistication, its practical applicability and its popular support. Although originalism first developed in the 1960s as a doctrine of judicial modesty, originalist judges are now far more confident in their ability to discern the Constitution’s original meaning and thus willing to strike down legislative enactments inconsistent with that meaning. Two aphorisms by the leading practitioners of originalism sum up originalism’s journey. Justice Scalia, writing in the 1980s, conceded that originalism was merely “the lesser evil” and consoled himself with the Chestertonian dictum that “a thing worth doing is worth doing badly.” Justice Thomas places fewer limitations on his own belief in originalist method and adopts as his motto “any job worth doing is worth doing right.” The challenge for contemporary originalism is that it is not the sort of thing that G.K. Chesterton thought was worth doing badly, but it also may be the sort of thing that is very difficult to do right.

(Via Larry Solum at Legal Theory Blog, who has additional comments).