The Originalism Blog

More from Greg Weiner on Judicial RestraintMichael Ramsey

At Liberty Law Blog, Greg Weiner has this reply to Evan Bernick's response to his initial post: The Power of Judges, Too, Is “Of an Encroaching Nature”: A Reply to Evan Bernick (it's also in part a response to my post here).  From the core of the argument:

The Court, especially backed as it has come to be by the overwhelming weight of public opinion as to its institutional untouchability, should be subject to political restraints short of [impeachment]. Not to say that these restraints—jurisdiction-stripping, altering the size of courts, re-passing invalidated laws to provoke ongoing constitutional conversations, confining precedents to the parties to a case, declining to enforce rulings—should be everyday mechanisms. They should be part of a constitutional ecology that the courts take into working consideration.

Another part of that ecology, to be sure, should be judicial review. Especially given the esteem in which courts are held, other constitutional players would likely pay a political price for challenging them, and in recognition of that, would do so sparingly. Another part should be the elected branches’ engaging constitutional questions as they go about their business—in congressional debate, in presidential statements, and the like.

And later:

The model called for here is not judicial self-restraint. It is institutional restraint, just as the other branches are subject to institutional checks. By contrast, the use of an interpretive methodology, including originalism, as a limitation on the courts’ power is judicial self-restraint. It represents the hope that judges will stick to the method and execute it correctly—and won’t abuse the office, or err even with good intent. 

(And, as usual, interesting discussion in the comments, including further discussion between Professor Weiner and Evan Bernick).

I mostly agree with Professor Weiner's latest post (to the extent the institutional checks on the judiciary that he proposes are constitutional).  Even if some advocates of judicial engagement call for a "great degree of deference" to judges that "presumes judges’ superior capacity to correctly decide constitutional questions" (as Professor Weiner charges),  I do not.

I also share his doubts about judicial self-restraint.  But I may have a slightly different view of the question (as he poses it): "Can an interpretive theory constrain the courts?"  The originalist strategy, I would say, is not just to rely on the courts themselves.  Instead, it aims to change the legal and political culture more broadly, so that courts are understood by their chief audiences (the legal and political elite) to be acting legitimately when they follow originalism and acting illegitimately when they do not.  Thus the strategy is not purely judicial self-restraint, but cultural restraint.  Whether this is a realistic approach is a different question, but I do think that if the legal/political culture were changed in this way, it would have a profound affect on judging.  Thus I would answer: an interpretive theory on its own likely cannot constrain the courts, but an interpretive theory that becomes embedded in the legal/political culture might be able to.

RELATED:  John McGinnis objects: Judicial Restraint is a Question of Constitutional Interpretation.  He begins:

Greg Weiner and Evan Bernick have been conducting an interesting debate in this blog about the virtues of judicial restraint and judicial engagement. Rather than directly confront either position, I would like to raise a methodological point. Doesn’t judicial restraint or judicial engagement need to be rooted in the meaning of the Constitution? In other words, judges’ approach to constitutional interpretation should not be based on policy arguments about how judges should behave but on the original meaning of Constitution itself, just as our interpretation of specific provisions should be fixed by original meaning. ...

Elliot’s DebatesSeth Barrett Tillman

 The five-volume second edition of Elliot’s Debates is posted on the American Memory website. If you ever have a hankering to see the four-volume first edition, it can be found on the Hathi Trust website—along with much other early and difficult to find Americana. Highly recommended! See, e.g., https://catalog.hathitrust.org/Record/008375063 (links to volumes 1 to 4 of the first edition); see also, e.g., Professor (and former Chief Justice) Joel Parker, Habeas Corpus and Martial Law, 93 North American Review 471 (Oct. 1861),http://tinyurl.com/jewcacq (archived article) (commenting on Ex parte Merryman), https://catalog.hathitrust.org/Record/100768188 (free-standing 1862 pamphlet version of Parker's article).

As to Elliot's Debates, just a few words of warning: material in the first edition may appear in a different volume in the second edition, which is expanded and has much new material not anywhere in the first edition. There is no volume 5 to the first edition. 

 

UPDATE:  Third hyperlink was bad.  Now fixed.

Richard Primus: Is Theocracy Our Politics? Michael Ramsey

In the current issue of the Columbia Law Review sidebar, Richard Primus (Michigan): Is Theocracy Our Politics? (116 Colum. L. Rev. Sidebar 44 (2016)) (responding to William Baude’s article, Is Originalism Our Law? (115 Colum. L. Rev. 2349 (2015)). Here is the introduction:

In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists.

But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the account of judicial behavior that Baude takes to show that originalism is our law may say less about the norms of judicial decision-making than it says about the norms of judicial discourse. Baude’s essay highlights something significant about the way judges talk, but it is not clear that this way of talking constrains, or ought to constrain, the substance of what judges decide.

Consider, by (partial) analogy to the way that judges talk about the Founders, the way that politicians talk about God. Invoking God is a matter of traditional and broadly accepted practice among senior American political figures. Many politicians probably feel that their role requires them to participate in that practice. But it is not clear that these invoca­tions of God by political leaders reveal a widely held theory of political authority. The fact that senior officeholders speak about God has little bearing on the substance of policymaking, and fortunately so, because there are excellent reasons why the government should not set policy on the basis of theological ideas. To be sure, one learns something about American politics by noticing how politicians speak about God, just as one learns something about American constitutionalism by noticing how judges speak about the Founders. But it might exaggerate matters to describe our politics as theocratic, and it might exaggerate matters to describe our law as originalist.

In Part I of this Essay, I describe Baude’s vision of “inclusive originalism.” In Part II, I ask how well inclusive originalism describes prevailing judicial practice. In Part III, I develop the comparison between the practice of respectful engagement with original meanings in the judicial sphere and the practice of respectful invocations of God by elected officials. The two practices are not entirely the same, of course. But it is worth noting their similarities.

And more from Part I:

Relative to some other arguments for originalism, Baude’s has con­siderable virtues. It does not rely on hard-to-defend claims about the in­herent nature of law, or of constitutions, or of interpretation. It avoids the dead-hand problem because it grounds the authority of original mean­ings not in actions that occurred long ago but in the practices of the living.  Moreover, and by the same token, Baude’s argument for original­ism does not rely on the claim that the practices of American constitu­tional decisionmakers have always been originalist. It requires only that originalism be the way that we do things now. This is a mature way to argue that some set of practices is our law: Look and see what our legal officials actually do.

To succeed, though, Baude needs to be able to survey what our legal officials actually do and describe what he sees as originalism. A different observer might find that task daunting. After all, if you look to see what judges do most of the time in constitutional cases, you will find them applying doctrine. Only rarely does a case turn on the text of the Constitution or an account of original meanings.

To his credit, Baude does not pretend otherwise. He does not claim, that is, that judges actually spend more time plumbing original meanings than observers have previously realized. Instead, he offers a version of originalism in which the fact that judges rarely traffic in arguments about original meanings is compatible with the claim that originalism is our law. He calls this model “inclusive originalism.” Under inclusive original­ism, modes of decisionmaking that the Founders would have recognized as legitimate are legitimate. Living as they did in a common-law world, Baude says, the Founders surely accepted the application of judicial prec­edent as a valid mode of legal decisionmaking. So that form of decision­making is in—not on its own bottom but because the Founders accepted it. The same goes for interpretation that tracks the evolving meaning of constitutional language, for the same reason, and for any other modality of argument that the Founders would have considered legitimate.  

This is a capacious conception of originalism. Consider, by analogy, what it would mean to describe as “textualist” a theory of constitutional decisionmaking on which judges confronting individual-rights questions should reason about what rights people have without reference to the words of particular constitutional provisions. Given the Ninth Amendment, one can perfectly well argue that the text of the Constitution directs con­stitutional decisionmakers to reason about rights in nontextual ways.  So it could make sense to describe nontextual reasoning as justified on the basis of the text, just as it could make sense to describe a largely common-law process of constitutional interpretation as justified on the basis of a Founding understanding. But someone who described judges making moral arguments about unenumerated rights as practicing “textualism” would not be using the term in a way that captures what textualism usu­ally means in American constitutional discourse

The point here is not that Baude is wrong to call his approach a ver­sion of originalism. Nobody owns the term, and Baude tells his readers clearly what he does and does not mean, and his idea shares something important with the broader family of originalist theories: It maintains that facts from the time of the Constitution’s enactment supply legitimacy criteria for constitutional interpretation today. To be sure, Baude’s ver­sion of that legitimacy claim is importantly different from the legitimacy claims on offer in some versions of originalism. For Baude, originalism is authoritative only because we accept it as a matter of prac­tice. But my use of the word “only” is meant to contrast Baude’s theory with some other forms of originalism, not to suggest that a legal culture’s acceptance in practice of a theory of interpretation is not a good reason to deem that theory authoritative within that legal culture. If Baude can show that the American legal system operates on the basis of something he describes as “inclusive originalism,” he will not have demonstrated that stronger forms of originalism are “our law,” but he will have made a good case for the thing that he claims to be demonstrating.

Quite an interesting essay.  (Draft noted in an earlier post here).  For another provocative take on Professor Baude's article, see here by Eric Segall.

William Baude & Stephen Sachs: The Law of InterpretationMichael Ramsey

William Baude (University of Chicago Law School) and Stephen E. Sachs (Duke University School of Law) have posted The Law of Interpretation (Harvard Law Review, forthcoming) on SSRN.  Here is the abstract:     

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call "the law of interpretation" has a claim to guide the actions of judges, officials, and private interpreters -- even if it isn't ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.

This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional "interpretation" and "construction," explaining how construction can go beyond the text but not beyond the law.

A very interesting paper, presented at the San Diego Originalism Works-in-Progress Conference last February.

Jordan Paust: Actual Commitment to Compliance with International LawMichael Ramsey

Jordan J. Paust (University of Houston Law Center) has posted Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply to Professor Moore (40 Houston Journal of International Law (forthcoming 2016)) on SSRN.  Here is the abstract:      

This reply demonstrates that claims that the Continental Congress violated a rule of customary international law and three treaties are unproven, that overwhelming views of the Founders and Framers and early judiciary were clear that Congress and the President are bound by customary and treaty-based international law, and that there was no approval by the Founders or Framers of an alleged authority of any part of the national government to violate customary or treaty-based international law. Indeed, no one declared or embraced an alleged national discretion to violate international law. Today, at least forty-three opinions of Supreme Court Justices have affirmed (1) that Congress is bound by customary international law, and (2) that the President is bound by customary and treaty-based international law. Fifteen other Supreme Court Justice opinions are supplementary, and eighteen opinions of Supreme Court Justices affirm various exceptions to the last-in-time rule that guarantee the primacy of certain types of treaty-based rights and duties in the face of conflicting newer congressional legislation.

This is a reply to this paper by David Moore (BYU):  Constitutional Discretion to Violate International Law (noted here, and previously presented at the San Diego Originalism Works-in-Progress conference).  The debate over the views of the Continental Congress is interesting.  My view is that the reply's claims about the Supreme Court are overblown.  See International Law in the Supreme Court: Continuity and Change.

Samuel Bray: Hendiadys in the Constitution Michael Ramsey

Now published, in the current issue of the Virginia Law Review: Samuel Bray (UCLA), “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution (102 Va. L. Rev. 687 (2016)). Here is the introduction (footnotes omitted):

For more than two centuries, no clause of the U.S. Constitution has been more central to debates over federal power than the Necessary and Proper Clause. For an interpreter today, it is inevitable to wonder if everything worth saying has already been said. Yet the Clause remains at the heart of major debates in this country, including the recent landmark case of National Federation of Independent Business v. Sebelius. In that case the Court eventually got around to upholding the Affordable Care Act under the taxing power, but only after holding that the individual mandate could not be justified under the Necessary and Proper Clause. The individual mandate, the Chief Justice wrote, might be ""necessary' to the Act's insurance reforms," but it was "not a "proper' means for making those reforms effective." Necessary, but not proper. Whether the conclusion was right or not, it was exactly the kind of close reading that one would expect a court to give to the Clause, since it authorizes only congressional actions that are "necessary and proper." Or does it?

This Article attempts to shed new light on the original meaning of the Necessary and Proper Clause, and also on another Clause of the U.S. Constitution, the Cruel and Unusual Punishments Clause. The phrases "necessary and proper" and "cruel and unusual" can be read as instances of an old but now largely forgotten figure of speech. That figure is hendiadys, in which two terms separated by a conjunction work together as a single complex expression. The two terms in a hendiadys are not synonymous, and when put together their meanings are melded. (Hendiadys is pronounced hen-DIE-u-dus.)

(Draft previously noted on this blog here.)

About that Washington Post EditorialMichael Ramsey

Ed Whelan at NRO sharply criticizes this Washington Post editorial on Supreme Court nominations: The danger of Trump, Sanders and Clinton’s Supreme Court lists and litmus tests.  (The "danger" is that they are further "politicizing the judiciary").  He highlights especially this odd passage: 

The judiciary is different from the other two, more political, branches of government, and politicians, in their search for short-term victories, should not be so eager to erode that difference. Judges are not immune to ambition or political ideology, but Americans have long expected and should still expect that judges be guided by other values: careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, a healthy amount of modesty and allegiance to the notion that their rulings must bear a rational relationship to the laws they interpret and the precedents they have set. A world in which judges must at the very least address these expectations is far better than a world in which they are assumed to be wholly political actors who need offer no justification beyond, “I promised to rule this way.”

My thoughts: this is the worst sort of oversimplification and denial.

(1) I wonder if the editorial writers have seen this post by Mark Tushnet, or even this post by Erwin Chemerinsky.  Do they know that leading liberal law professors think of the Court (on big constitutional issues) in purely political terms where their side, they hope, is about to "win"?

(2) I'm sure that every person on Trump's list, and every person Clinton or Sanders would nominate, and every Supreme Court Justice in modern memory, and virtually every member of the federal judiciary, is "guided by ... careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, [and] a healthy amount of modesty..."  But these admirable values do not decide hard, politically salient cases.  The disputes that matter to society as a whole turn on (a) judicial philosophy regarding the role of courts and the nature of interpretation, and (b) depending on the conclusion in (a), social morality.  And so all the hard questions on nomination and confirmation turn on the latter points, not on the take-for-granted values the Post identifies.  Anyone who thinks otherwise does not understand how the Court works.

(3)  Similarly, no judge in the country is or would ever be a "wholly political actor[ ] who need[s to] offer no justification beyond, 'I promised to rule this way.'"  This is as simplistic a false-dichotomy as one can imagine.  Of course judges/Justices will offer justifications, and those justifications will (in hard cases) sound in the considerations noted in points (a) and (b) above -- judicial philosophy and social morality.  What Trump and Clinton and Sanders are getting at in their lists and tests is: what are the right judicial philosophies and social moralities for Justices?  Or put another way, what kind of a judge -- philosophically --  is this potenial nominee?  The idea that judges are either not political, or else would vote a particular way because they promised to do so, trivializes the choice.  It isn't that the nominee promises a particular outcome; it's that the nominee embodies a particular approach to judging that one finds either appropriate or inappropriate.   And the evaluation of that approach is never on the wholesome-yet-empty criteria the Post proposes (because all plausible nominees meet those), but on how the nominee views the role of the judge and the shape of the best society.  So in selecting nominees, why would we not want to think about their views on these subjects?  And in selecting among presidential candidates, why would we not want to know what their views are?

(4)  Ed Whelan is rightly aghast at the Post's proposition that judges' rulings "must bear a rational relationship to the laws they interpret and the precedents they have set."  Again, surely all plausible nominees meet this extraordinarily low bar.  (Do the editorial writers understand that a "rational relationship" is a term of art for  the lowest possible standard in constitutional adjudication?)  Surely a judge's rulings should have much more than just a "rational relationship" to the law they are supposedly applying.  But assuming the Post's equivocal language is meant to acknowledge the substantial discretion judges have in reaching their conclusions in hard cases:  what does the Post think judges are going to use to decide among the various options, all having such a "rational relationship"?  The right answer is, as above, the judges' views on the judicial role and/or on  social morality.  

(5) The short answer to the charge of politicizing the judiciary is: if you make the judiciary a decider of political morality, it will be politicized.  Justice Scalia made this point in 1998 in A Matter of Interpretation.  The Post editorial writers should ask themselves: (a) how many times have they applauded or criticized a judicial result based on whether the social morality it reflected accorded with their own, and (2) how many times have they applauded a judicial result because it reflected a proper understanding of the judicial role in a constitutional democracy even though  the outcome conflicted with their own social morality?  If, as I suppose, the answers are "many times" and "never," we can see who really is to blame for the politicization of the judiciary.  Trump, Clinton and Sanders are just responding to a reality created by others.  As Whelan puts it, "The primary cause of 'politicizing the judiciary' is the widespread belief that judges have free rein to read the Constitution and federal statutes to impose whatever result they want." 

(6) If one really wants a de-politicized judiciary, the key is to reduce the judiciary's political role.  There are at least two paths for doing so.  One is a strong version of judiciary restraint.  If judges did not rule against the elected branches except where judges of all jurisprudential approaches would agree, the role of courts in governing modern society would be greatly reduced and it would not matter so much who was nominated.  (The downside is that we would lose an independent check on the elected branches).  The second path is a strong commitment to originalism/textualism, so that judges are not pursuing their own versions of social morality but are trying to discern the choices made by earlier lawmakers.  If we have true courts of law, not courts of policy, again the nominees will not matter so much.  (This path is a lot harder than pure judicial restraint, but it maintains a check on the elected branches).

It's not clear to me if either of these approaches is possible.  But if the Post is serious about a de-politicized judiciary, it could start advocating for one or the other of these approaches. To pursue the ridiculous notion that we can take politics out of the judiciary just by picking judges that are "guided by ... careful thinking, reverence for the facts of specific case," etc., is either extraordinarily naive or shockingly dishonest.  For this reason I much prefer Tushnet and Chemerinsky (and Trump, Clinton and Sanders): they understand what is at stake and are willing to say it.

(To be clear, I do not think potential nominees should promise particular results in specific cases.  Obviously Trump's list doesn't raise this concern; arguably some of Clinton's and Sander's statements might.  But think Clinton and Sanders are best understood as saying they would nominate someone who is has the type of judicial philosophy that would likely lead to a particular result, not that they would extract such a promise expressly.)

SOMEWHAT RELATED:  At Liberty Law Blog, John McGinnis: Trump, Clinton, and the Supreme Court.

Michael Novotny: The Framers Intended the Sixth Amendment to Cover Speedy Sentencing Michael Ramsey

Michael Novotny (Independent) has posted Don't Hurry Me Up to Make Me Wait! The Framers Intended the Sixth Amendment to Cover Speedy Sentencing on SSRN. Here is the abstract:  

This paper takes an originalist perspective, in honor of the late Justice Scalia, to argue that the Framers intended the Sixth Amendment — not the Due Process clause — to apply to speedy sentencing. Speedy sentencing is embodied in over 300 years of American-criminal law principles. During the framing of the Constitution, the Framers drafted the Speedy Trial clause with several core values in mind: “unreasonable delay . . . threatens to produce . . . ‘oppressive . . . incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the [accused’s] defense [or appeal] will be impaired by’ dimming memories and loss of exculpatory evidence.” When putting these values to practice, the text of the Speedy Trial clause must be read with the “meaning ascribed at the time of [its] ratification.” As a result, this paper first provides a factual scenario — as presented in Betterman v. Montana — to analyze the legal issues presented by the Speedy Trial clause. Next, the text of the Speedy Trial clause is dissected. Finally, this paper examines the text in the context of the Sixth Amendment’s history and tradition.

Sometimes “People” = “Legislature”Seth Barrett Tillman

This is a response to Professors Saikrishna Bangalore Prakash & John Yoo, People ≠ Legislature, 39 Harvard Journal of Law & Public Policy 341 (2016) (noted on this blog  here).

Professors Prakash and Yoo’s position is that “[a]s used in the Constitution, ‘Legislature’ refers to a multimember lawmaking body that is distinct from the people.” Prakash & Yoo, supra at 355. I have to admit, that my own intuition is consistent with their view. But I am not sure that my intuition counts for much. The Framers and ratifiers spoke to this issue, albeit unevenly, but what many wrote does not easily square with Prakash & Yoo’s position.

For example, the (unamended) Constitution of 1788 committed the selection of Senators to the state legislatures, and it left the selection of presidential electors to the discretion of the state legislatures. Compare U.S. Const. art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof ....” (emphasis added)), with id. at art. II, § 2, cl. 1 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ....” (emphasis added)).

Yet, notwithstanding the centrality of the state legislatures to both constitutional processes—selection of senators and selection of presidential electors—John Jay, in Federalist No. 64, wrote: “the president [is] to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the state legislatures.” The Federalist No. 64 (emphasis added). Jay’s statement is more than somewhat perplexing: under a plain reading of the constitution’s text—at least through our modern eyes—the “people” play no direct role in choosing presidential electors. It is almost as if Chief Justice Jay were saying ... “People” = “Legislature.”

Furthermore, Jay was not alone in making this apparent “mistake.” In Federalist No. 68, Alexander Hamilton stated that “the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government ....” The Federalist No. 68 (emphasis added); see also Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. Va. L. Rev. 601, 614 n.45 (2003). Nor was this a lone misstatement by (future Secretary of the Treasury) Hamilton, who repeated this apparent error elsewhere in Federalist No. 68, and also in Nos. 60, 69, and 77. See id. at 614 nn.46–49.

The Federalist’s third author, James Madison, agreed with his two co-authors. At the Virginia ratifying convention, (future President) Madison stated: “[The President] will be the choice of the people at large.” 3 Elliot’s Debates 487 (2d ed. 1836) (emphasis added). Additionally, at the Virginia ratifying convention, Governor Edmund Randolph stated: “The electors must [!] be elected by the people at large.” Id. at 486 (emphasis added).

Now I expect that Prakash and Yoo would argue that the Chief Justice, Secretary, President, and Governor—all were mistaken. But what if they were not mistaken? What if their statements reflected the original public meaning of “legislature” as used in the Electoral College Clause (Art. II, § 2, cl. 1)?

Prakash and Yoo also state: “Consider an absolute monarch with power to make laws. An executive sovereign would not be a ‘Legislature’ in its eighteenth-century sense.” Prakash & Yoo, supra at 355. Here, they are not talking about how “legislature” is used in any specific clause in the Constitution of 1788, but how it was used in every day language of the time. It strikes me that their claim is objectively falsifiable. In the famous exchange between Lord Granville, President of the Privy Council, and Benjamin Franklin, in 1775, just before the start of the Revolution and War of Independence, Granville stated: “You contend that the king’s instructions to his [colonial] governors are not laws .... They are ... so far as they relate to you, the law of the land, for the king is the legislature of the colonies.” 9 Encyclopedia Britannica 713 (1879) (emphasis added and original emphasis removed). I do not suggest that Granville’s legal position was correct, but I think he knew how to use the word “legislature,” which here refers to the King, and not to a multimember elected or appointed body. If you want a more immediate American source: Congressman William Findley, who had been an anti-federalist member of the Pennsylvania ratification convention, stated on the floor of the U.S. House of Representatives: “[Montesquieu] ... demonstrates the absurdity of the legislature sitting in judgment on offenders against their own laws, even in an absolute monarchy where the king is the legislature ....” 6 (part 2) American Register 85, 90 (1809) (emphasis added) (available on Hein Online). See e.g. Nathanael Vincent, Antidote 114 (1779) (using “universal legislature” to refer to the Christian deity).

Finally, any number of clauses in the Constitution of 1788 use the term “legislature.” In regard to some of these clauses, e.g., Article V, practice since 1789 has been that the state legislative houses act alone, without participation of state governors, even where governors are part of the normal law-making process. In respect to other clauses, e.g., the Elections Clause (Art. I, § 4), practice has been that the entire law-making apparatus of the State is to be used, including both the state legislative houses and state governors. Prakash and Yoo discuss this dichotomy. See Prakash & Yoo, supra at 350ff. But they do not tell us which line of practice and judicial authority drawing on that practice is incorrect. Does the Constitution’s use of “legislature” refer to just the state legislative chambers or does it also permit the use of the entire regular law-making apparatus, including governors? If the Constitution permits states to use either route, or if some clauses require one process and forbid the other, then perhaps Prakash and Yoo’s reliance on intratextualism—across clauses and articles—is misplaced because the Constitution of 1788’s usage in regard to “legislature” varies (or may permissibly vary) across provisions.

I do not suggest that Prakash and Yoo’s position is frivolous. They have some decent arguments. But they do not deal with obvious counter-authority (e.g., The Federalist and ratification debates), and they make empirical claims—claims central to their argument—that are (in my opinion) plainly wrong (e.g., the 18th century meaning of “legislature”).

Arizona State Legislature v. Arizona Independent Redistricting Commission is not a thing of beauty and joy forever. In terms of judicial craftsmanship, it is probably one of the Court’s weaker decisions. Some of its arguments, as Prakash and Yoo point out, can be criticized: they are methodologically unsound, and they are based on contestable policy assumptions. But that does not mean that the Court’s decision was wrong. The U.S. Constitution should not be used to strike down state law based on little more than closely held personal intuitions about 18th century English usage. Nor should state law be invalidated for reasons that leave us thinking we are correct on a mere balance of the probabilities, i.e., 50% + epsilon. If unconstitutionality beyond a reasonable doubt is too high bar, we still need something approaching Thayer-type certainty. In my view, Prakash and Yoo have not met that bar.

Heritage Foundation Event on Justice Scalia's LegacyMichael Ramsey

Via Josh Blackman, here is video of the Heritage Foundation' s event  The Legacy of Justice Scalia: Remembering a Conservative Legal Titan’s Impact on the Law.  Professor Blackman comments:

On Thursday, May 19, the Heritage Foundation hosted an event on Justice Scalia’s legacy. Noel Francisco gave a touching keynote. My discussion on Justice Scalia’s dissents, and the separation of powers, begins at 28:20. After I speak, Stephanos Bibas spoke about Scalia’s criminal procedure cases, and Rick Garnett discussed the freedom of religion. It was a heartfelt and thoughtful tribute to Nino.