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35 posts from July 2016


Cass Sunstein: Formalism in Constitutional Theory
Michael Ramsey

Cass Sunstein (Harvard Law School) has posted Formalism in Constitutional Theory (Constitutional Commentary, forthcoming) (responding to this essay by Richard Ekins) on SSRN. Here is the abstract:     

In law – and in many other social activities, including music, art, and literature – reasonable people can and do argue over the best conception of interpretation. Intended meaning is unquestionably one candidate, but there are others. To choose among plausible accounts of what interpretation entails, judges and lawyers need to think about the world and to look outward, rather than to pretend that definitions can solve the problem. They need to ask which approach would make our constitutional order better rather than worse.

3 pages.


Steven Begakis: Rediscovering Liberty of Contract
Michael Ramsey

Steven Begakis (independent) has posted Rediscovering Liberty of Contract: The Unnoticed Economic Right Contained in the Freedom of Speech (Loyola of Los Angeles Law Review, forthcoming) on SSRN. Here is the abstract:     

The Free Speech Clause of the First Amendment protects — and therefore, the U.S. Supreme Court should recognize and enforce — the liberty to form a contract, balanced against the right of the states, under their historic police powers, and the U.S. Congress, under its enumerated legislative powers, to prohibit and punish the formation of contracts that are contrary to a sufficiently important public policy.

This article demonstrates that the liberty to form a contract is secured by the text of the First Amendment, is implicit in the U.S. Supreme Court’s commercial speech jurisprudence, is justified by reference to originalist and traditionalist theory, and finds the most appropriate textual vehicle in the First Amendment. Moreover, recognizing a federal contract freedom would solve a historical and constitutional paradox — the fact that contract freedom, while fundamental to the Framers of the Constitution, currently receives no legal protection from the Court.

No court has ever recognized such a right in the First Amendment, and no scholar has ever proposed its recognition. Yet my proposal sounds strange, and is strange, because after West Coast Hotel — and especially after Lee Optical — it has become a veritable article of faith to modern theorists that Lochner was totally, irredeemably wrong. Because we moderns start with the baseline assumption that “liberty of contract” cannot be in the Constitution, our natural inclination is to think that the Free Speech Clause could not possibly protect a liberty of contract formation. But this inclination is in tension with certain historical and constitutional facts.

I'm skeptical.  This is the sort of claim for which I would like to see founding era confirmation -- that is, good evidence that people in the founding era thought of the First Amendment in this way.


Richard Primus: The Cost of Text
Michael Ramsey

Richard Primus (University of Michigan Law School) has posted The Cost of Text (Cornell Law Review, forthcoming) on SSRN (commenting on Christopher Serkin & Nelson Tebbe’s article Is the Constitution Special?).  Here is the abstract:     

Prominent scholars have suggested that the major reason why constitutional decision making departs from the wording of enacted constitutional clauses more often than statutory decision making departs from the wording of enacted statutory clauses is that the U.S. Constitution has a large share of broadly worded clauses, such that constitutional text under-determines constitutional interpretation. I suspect that two other factors do more to account for the observed difference. One is the greater role of judicial precedent in constitutional interpretation, which results largely from the mere fact that the U.S. Code is orders of magnitude more extensive and more prolix than the U.S. Constitution and therefore gives rise to many more questions of first impression. The other is that constitutional cases are more apt than statutory cases to make judges feel that there is something big to lose from a decision that is unfortunate on its merits. The desire to avoid deeply unfortunate results is a major driver of a decision maker's willingness to buck preexisting authority, including the authority of enacted texts. Put another way, judges depart from texts when the cost of adhering to those texts is high. And the propensity of American legal practice to make the highest-stakes issues into issues of constitutional law means that the costs of unfortunate decisions are liable to skew high in constitutional contexts.


Vikram Amar on the Separation of Powers Restoration Act
Michael Ramsey

At Justia, Vikram Amar  Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2016”: A Sign of the Times.  From the introduction:

A few weeks ago, the U.S. House of Representatives, on a near party-line vote, passed a bill—“the Separation of Powers Restoration Act of 2016” [ed.: text here] —that would, among other things, undo a major Supreme Court ruling of three decades ago, Chevron U.S.A. v. Natural Resources Defense Council. A version of the bill is now before the Senate Judiciary Committee.

Congressional efforts by Republicans to overturn Chevron (and by Democrats to preserve it) are noteworthy not just because Chevron is a very significant Supreme Court case—perhaps the most important ruling that most folks in the country have never heard of—but also because this episode is yet another instance (like the Independent Counsel Act, presidential power to issue executive orders, and executive non-enforcement discretion) in which the political parties’ views about the proper constitutional roles of the three branches of the federal government seem to depend who occupies or is likely to occupy the White House for the foreseeable future.

But is it constitutional?  As described by Professor Amar, the Act "directs federal courts not to afford agencies interpretive deference, but instead tells courts to decide the meaning of all federal law de novo (that is, without any deference to other bodies’ interpretations), unless a federal statute specifically says otherwise with respect to implementation of that statute."  Can Congress tell courts what to consider in interpreting federal law?  Professor Amar's take: 

The question of what, if any, level of deference to give to agencies when they are interpreting federal statutes really is a question of statutory interpretation, which Congress should be able to control. This Supreme Court is often intent on not letting Congress tell it what to do or not do (and sometimes wrongly takes constitutional offense when Congress is simply trying to lay down a guide for interpreting its own statutes, as in Clinton v. New York), and some might suggest that Chevron saves courts time (by relieving them of what otherwise might be difficult choices between competing reasonable interpretations), but I don’t think any workload increase generated by the undoing of Chevron creates any arguable separation of powers violation. For these reasons, I would expect in this instance the Court to accept and follow Congress’s wishes.

I'm not sure it's that easy a question.  It seems more akin to a statute purporting to abolish precedent in statutory cases.  I think courts, perhaps rightly, might think that infringes on the judicial power. 


Drew Starling & Sean Nadel on "A Newer Originalism"
Michael Ramsey

At the U.S. Intellectual History Blog (I like that there is such a thing!), Drew Starling (Ph.D. candidate in history, University of Pennsylvania) and Sean Nadel (J.D. candidate, Columbia): A Newer Originalism: Book History and Constitutional Interpretation.  From the introduction:

The recent passing of Justice Antonin Scalia has given new relevance to debates about constitutional interpretation with some questioning whether originalism will simply fade away. Though the survival of originalism, absent its most renowned advocate, is still an open question, many of the criticisms of originalism will persist. Let us suppose that Lawrence Solum and Jack Balkin are right–that originalism will outlive its now-deceased standard-bearer–must it maintain the same shape that it had during his lifetime? Towards the end of Justice Scalia’s career, some legal scholars began advocating that originalists and new originalists abandon “law-office history” in favor of the methodological rigors of intellectual history. Above all, the methods advocated have been those of James Kloppenberg, Quentin Skinner, and David Hollinger, which privilege the linguistic context and semantic content of texts and, in this case in particular, the Constitution.

While the adoption of such methods would undoubtedly better ground legal arguments from history, they alone are insufficient, especially given originalism’s shift from a focus on discovering the original intentions of the framers of the Constitution to new originalism’s focus on the original public meaning of the text. Such a shift entails a change in belief as to where meaning inheres. Theoretically speaking, for originalists, the author endowed the text with fixed meaning at the time of writing. For new originalists, the meaning of a text is determined by the ways in which particular historical or imagined historical readers would have made sense of it.

With the adoption of such a method, the history of reading and reception, to which Saul Cornell has briefly alluded, becomes key, as do the history of the book’s methodologies more broadly speaking. Book historians, following the cue of bibliographers, have long grown accustomed to the notion that ideas never travel through reified space. They are not transmitted telepathically, but are mediated by a number of actors–authors, copyists, editors, translators, publishers, compositors, and printers, just to name a few–each with his or her own intentions in doing whatever he or she does. They are also mediated by the material realities of textual transmission–the physical form that the ideas are given by which they are transmitted to readers–and the interpretive apparatuses with which they are surrounded. Increasingly historians of the book are making intellectual historians aware of the fact that the meaning of a text, formed by a reader, is not only determined by the semantic content on the page. Following bibliographer D. F. McKenzie, we may say that “forms effect meaning,” too. While readers are not passive vessels into which information is poured, their reading is constrained in many ways. To study reading, or in this case, original public meaning, is, in part, necessarily to study the material forms and interpretive apparatuses that legal documents and documents relating to the Constitution have been given.

And after an extended discussion of the "book history" of The Federalist, 

In conclusion, editional differences make a difference. If one is to read The Federalist as an aid to understanding the original public meaning of the Constitution, one must, first, understand the original public meaning of The Federalist, itself.  While the methodologies of intellectual history certainly can go a long way in aiding our ability to reconstruct historical meanings of texts, they alone are insufficient. Many intellectual historians have begun to heed the calls of book historians, who have claimed that the historical meanings of texts cannot be understood by an examination of their semantic contents alone, rather we must also consider the material forms that texts were given, and the ways in which forms shaped readers’ horizons of expectation when approaching texts. To understand the original public meaning of The Federalist is not only to understand the words written by its authors, but it is, necessarily, to understand the words read by its readers, the meanings of which were informed by the different forms that the text took in its various editions. What, then, are we asking? Of course, we do not expect lawyers, judges, and justices to become historians. However, it is important that members of the legal profession pay attention to the ways in which forms, both of original historical documents and of modern editions, affect the ways in which texts are read. Engaging with the histories of publishing, reading, and reception may deepen our understanding of the original meaning of texts, what readers could possibly have known about them and their authors, and how such information would have shaped their reading. Nevertheless, this is not a one-way street. Historians can also do more to make their work relevant and useful, both theoretically and thematically.  If legal professionals and historians take up the challenge, and if originalism does, indeed, survive its most renowned advocate and practitioner, then, perhaps, it can be reborn on a more epistemologically sound footing.

A great post.  Via Jeremy Kessler at Balkinization.



Alex Loomis: The Power to Define Offences Against the Law of Nations
Michael Ramsey

Alex Loomis (Harvard Law School JD '17) has posted The Power to Define Offences Against the Law of Nations on SSRN. Here is the abstract:   

Congress has the power to “define and punish...Offences against the Law of Nations.” Everyone agrees this clause empowers Congress to punish universally recognized offences under international law, piracy being the clearest example. But Congress has the power to “define” offences against the law of nations too. Surely punishing an offence presupposes defining it. So what does “define” add?

This paper provides an answer. The Constitution’s text and structure, early constitutional history, and modern foreign relations doctrine all suggest Congress has the power to define offences against the law of nations that preexisting international law does not proscribe. Congress may pass laws prohibiting private conduct that violates international law, as well as any private conduct that, while itself not illegal under international law, the United States has a duty to punish. Any ambiguity about the United States’ obligation to punish the conduct in question does not restrict Congress’s power to define and punish. Congress likely even has the power to create new offences against the law of nations in order to foster changes in customary international law.

A really outstanding student note.  It all seems persuasive, except I do not agree with the proposition in the last sentence of the abstract (and have taken the contrary position in an amicus brief).


Laurence Tribe: A Multidimensional Reappraisal of Separation of Powers Doctrine
Michael Ramsey

In the Yale Law Journal Forum, Laurence H. Tribe: Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine (126 Yale L.J. F. 86 (2016)).  From the introduction:

The time is ripe for a reappraisal of the separation of powers as the organizing principle of our federal government. Most of the relevant doctrinal architecture has been constructed over the past seven decades. Perhaps because of Justice Robert H. Jackson’s incomparable brilliance as a writer, the two-dimensional landscape famously described in his concurring opinion condemning President Truman’s seizure of the U.S. steel industry has dominated discourse about the interaction of the three federal branches. Charting presidential conduct on the vertical axis of a map whose horizontal axis measures Congress’s position ranging from approval to disapproval gave Jackson an elegantly simple and memorable way to classify presidential actions from the most strongly defensible to the most constitutionally vulnerable.

The resulting classification scheme became a convenient triptych describing the geography of a “flatland” constitutional universe—one constructed in a two-dimensional space, carved into three simple zones. Missing from that triptych has been an analytical guide for navigating what is in truth the multidimensional universe of relevant constitutional values and relationships. This Essay sets out a proposed approach to developing such a guide.

And in conclusion:

I do not doubt that Justice Jackson was right as a descriptive matter when he noted the fluid and highly contextual ebb and flow of executive power—but I do believe he erred as a normative matter when he focused his gaze downward to search for legal answers solely in this shifting tide. If instead he had followed the impulse that guided him in West Virginia Board of Education v. Barnette—if he had looked up at the firmament that he had invoked in that decision less than a decade before Youngstown—he could have seen how “the fixed star[s] in our constitutional constellation” might help mark the lawful shape of presidential power.

(Via Michael Dorf at Dorf on Law, who has extensive insightful comments).


Ethan Blevins: A Fixed Meaning of 'Religion' in the First Amendment
Michael Ramsey

Ethan Blevins (Pacific Legal Foundation) has posted A Fixed Meaning of 'Religion' in the First Amendment on SSRN.  Here is the abstract:   

A Fixed Meaning of 'Religion' in the First Amendment is one of very few attempts in First Amendment literature to advocate for a fixed meaning of "religion" in the First Amendment based on original intent and understanding. Despite its seeming importance as a threshold issue, the Supreme Court has never clearly defined this key word. This article’s novel definition focuses on the worship of supernatural agents. The definition aims to remain true to the original understanding and intent behind the term while creating a workable test for a pluralistic society. The article analyzes and criticizes the major scholarship proposing a definition and then offers a novel approach. While the debate may seem initially like an academic one, defining religion is key to determining the nature and scope of religious freedom.


Renée Lerner: The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury
Michael Ramsey

Renée Lettow Lerner (George Washington University Law School) has posted The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury (Magna Carta and its Modern Legacy 77-98 (Robert Hazell and James Melton eds., Cambridge University Press 2015)) on SSRN. Here is the abstract:

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.

Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.



North Carolina Law Review Symposium on Magna Carta
Michael Ramsey

The North Carolina Law Review has published papers from this symposium: Celebrating 800 Years of Magna Carta.  They are:

Magna Carta: The First Eight Hundred Years, by Alfred Brophy, William P. Marhsal & John V. Orth (94 N.C. L. Rev. 1409 (2016))

Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter, by Mary Sarah Bilder (94 N.C. L. Rev. 1545 (2016))

Magna Carta's American Adventure, by A. E. Dick Howard (94 N.C. L. Rev. 1413 (2016))

The Magna Carta Betrayed?, by Jed S. Rakoff (94 N.C. L. Rev. 1423 (2016))

Magna Carta and the Forest Charter: Two Stories of Property What Will You Be Doing in 2017?, by Paul Babie (94 N.C. L. Rev. 1431 (2016))

The Myth of Magna Carta Revisited, by R. H. Helmholz (94 N.C. L. Rev. 1475 (2016))

Blackstones's Magna Carta, by Wilfred Priest (94 N.C. L. Rev. 1495 (2016))

“The Whole of the Constitutional History of England is a Commentary on this Charter", by Charles Donohue Jr. (94 N.C. L. Rev. 1521 (2016))

Magna Carta for the World? The Merchants' Chapter and Foreign Capital in the Early American Republic, by Daniel Hulsebosch (94 N.C. L. Rev. 1599 (2016))

The Past Is Never Dead: Magna Carta in North Carolina, by John V. Orth (94 N.C. L. Rev. 1635 (2016))

The Conservative Magna Carta, by Mary Ziegler (94 N.C. L. Rev. 1653 (2016))

Magna Carta for the Masses: An Analysis of Eighteenth-Century Americans' Growing Familiarity with the Great Charter in Newspapers, by Sally E. Hadden (94 N.C. L. Rev. 1681 (2016))