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40 posts from August 2016


Constitutional War Initiation and the Obama Presidency
Michael Ramsey

I have posted my new essay Constitutional War Initiation and the Obama Presidency (American Journal of International Law, forthcoming 2016) on SSRN.  It is part of the Journal's forthcoming "agora" on President Obama's war powers legacy, also including essays from Curtis Bradley (Duke) and Jack Goldsmith (Harvard), Ashley Deeks (Virginia), Ryan Goodman (NYU) and Rebecca Ingber (Boston Univ).  Here is the abstract of my essay:

This essay assesses the constitutionality of President Obama's uses of military force. It uses two baselines -- the Constitution's original meaning, and the practice of U.S. presidents between the end of the Vietnam War and the beginning of the Obama presidency. Although President Obama has been criticized for expanding the president's unilateral powers to use military force, this essay concludes that these claims may overstate. Taken as a whole, the legacy of the Obama administration may be to decrease rather than expand the war initiation powers of the presidency.

Specifically, this essay considers President Obama's use of military force under four headings: (1) the use of force against the Al Qaeda terrorist organization and its affiliates; (2) the use of force against the Islamic State; (3) the use of force against the Qaddafi government in Libya; and (4) the threatened use of force against the Assad government in Syria. It notes that the President has principally justified the first two as authorized by statute -- and, at least in the case of the Islamic State, through very aggressive readings of the authorizing statute. While aggressive statutory readings may expand the presidency's flexibility in using force, they do not expand the presidency's claims to independent constitutional power. Indeed, to the extent aggressive statutory readings substitute for aggressive claims of independent authority, they may be seen to undercut arguments for independent authority.

With respect to Libya, this essay agrees with widespread critical commentary that the President claimed independent war initiation authority beyond the powers conveyed by the original Constitution and beyond powers established by modern consistent and widely accepted presidential practice. However, it notes several limiting features of the Libya episode as a precedent for future action. Moreover, it notes that the Libya episode may be balanced by subsequent events with respect to Syria, in which the President declined to use unilateral force against the Assad regime.

To be clear, I am not retreating at all from my view that the 2011 Libya intervention was unconstitutional by just about any measure.  But as the essay explains, I think President Obama's war initiation record taken as a whole is not as aggressive, and will not set as many bad precedents, as some commentators suggest.


Reminder: Abstract Submissions for Originalism Works-in-Progress Conference Due Tomorrow
Michael Ramsey

As a reminder, anyone wanting to present a paper at the 2017 Hugh and Hazel Darling Foundation Originalism Works-in-Progress conference in San Diego next February should submit an abstract (or a draft) of their paper by tomorrow (Aug. 31).  Submissions should be emailed to Mike Rappaport (or sent to me, and I will forward them).

Anyone not presenting a paper is welcome to attend the conference.  More details, including a list of the papers selected, will be forthcoming shortly. 

Jeremy Christiansen: Originalism: The Primary Canon of State Constitutional Interpretation
Michael Ramsey

Jeremy Christiansen (independent) has posted Originalism: The Primary Canon of State Constitutional Interpretation (Georgetown Journal of Law & and Public Policy, forthcoming) on SSRN. Here is the abstract:     

Given the reach of federal constitutional law and the attention the topic garners in law reviews, law schools, and general popular discourse, a certain degree of federal-centricity is understandable in most scholarly discourse about originalism. Nevertheless, the near universal tendency of scholars to think only about the U.S. Constitution when debating originalism undermines claims by both proponents and opponents of originalism by failing to account for the massive body of originalist case law in state constitutional interpretation.

This article seeks to broaden the field of discussion about originalism by demonstrating that 38 of 50 state courts of last resort have consistently been invoking originalism, since as early as 1804. Indeed, not only have these courts expressly and consistently invoked originalism during this time period, but they also identified originalism as the primary canon of constitutional interpretation. In other words, for this super majority, originalism is supposed to be the goal of state constitutional interpretation. This is not to say that state courts are always originalist when interpreting their constitutions or that they always get a question of original meaning correct. Instead, the importance of this body of case law is for the broader debates about originalism in general. And although a full exploration of the impact of state constitutional originalism is beyond the scope of this article, there are important implications, potentially impacting topics from the traditional Bork-Scalia creation narrative of originalism, to more recent predictions about originalism’s impending demise, to assertions about originalism being partisan, to recent scholarship about originalism as law.


David Bernstein:The Courts and Tradition
Michael Ramsey

David Bernstein (George Mason University - Antonin Scalia Law School) has posted The Courts and Tradition: A Begrudging Respect on SSRN. Here is the abstract:     

This essay discusses the role of tradition in American common law and constitutional law. With regard to common law, the essay argues that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries. While other countries still often treat the common law as an autonomous discipline that should largely evolve organically from precedent, in the United States this notion has been under successful attack from legal realism and its successors, including critical legal studies and law and economics, for decades. Given that how the concept of the role of the common-law judge has changed since World War II, it’s not surprising that precedent from earlier eras plays less of a role in American jurisprudence than it does elsewhere.

With regard to constitutional law, this essay argues that the role of tradition was severely undermined by Brown v. Board of Education, because the defendants in Brown and their advocates tied the constitutionality of segregation to southern tradition. Tradition was also undermined when the Supreme Court decided that traditional notions of public morality,which once served as a valid “police power” rationale for legislation, were now given little constitutional weight. Indeed, in the context of gay rights, the majority, led by Justice Kennedy, has deemed traditional notions of sexual morality to amount to mere bigotry deserving of no weight, or perhaps negative weight, in constitutional decisionmaking. While conservative Justices often appeal to tradition, to the extent they rely on originalism the appeal is not so much to tradition as to history, as modern original public meaning originalism is only a few decades old and has never won the consistent approval of the Court’s majority.


Daniel J. Hulsebosch: Taking and Restoring Dignity in the American Revolution
Michael Ramsey

Daniel J. Hulsebosch (New York University School of Law) has posted Exile, Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution (Symposium on “Dignity Takings,” in Law & Social Inquiry (2016)) on SSRN.  Here is the abstract:     

Taking a cue from Bernadette Atuahene’s concept of “dignity takings” and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that loyalists suffered, and some paths toward reintegration. Their appointment as federal attorneys helped make the government conversant in the common law, British statutes, and the law of nations, which in turn supported the Federalist goal of reintegrating the United States into the Atlantic World: achieving, in other words, national dignity.

UPDATE:  Linked fixed.  Thanks to Seth Barrett Tillman for the catch.


Derek Muller: 'Natural Born' Disputes in the 2016 Presidential Election
Michael Ramsey

Derek T. Muller (Pepperdine University - School of Law) has posted 'Natural Born' Disputes in the 2016 Presidential Election (Fordham Law Review, forthcoming) on SSRN.  Here is the abstract:      

The 2016 presidential election brought forth new disputes concerning the definition of a "natural born citizen." The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad — and incorrect — pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

(Thanks to Seth Barrett Tillman for the pointer).

What I find most noteworthy about the "natural born" disputes of 2016 is the extent to which they focused on the original meaning of the eligibility clause.  To at least some extent, it seems, originalism is (a part of) our law.


Judge Neil Gorsuch: Overrule Chevron
Michael Ramsey

Concurring in Gutierrez-Brizuela v. Lynch (10th Cir., Aug. 23, 2016), Judge Gorsuch argues that Chevron deference to administrative agencies is inconsistent with separation of powers:

Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the [Administrative Procedure Act] and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. . . .

Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix. . . . Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state — and spawned along the way more than a few due process and equal protection problems of the sort documented in the court’s opinion today . . .  It’s an arrangement, too, that seems pretty hard to square with the Constitution of the founders’ design . . . .

(Via Jonathan Adler at Volokh Conspiracy).

RELATED: At Liberty Law Blog, Christopher Walker (Ohio State): Do Judicial Deference Doctrines Actually Matter? (noting Judge Gorsuch's concurrence and also this book review by Judge Brett Kavanaugh).  Professor Walker concludes:

[E]ven these raw-number findings make it hard to argue that Chevron deference does not matter in the circuit courts. Whether or not Chevron deference should be shelved is subject to considerable debate—a debate that will no doubt continue for years. But the findings of our empirical study of Chevron in the circuit courts should put to rest the argument that deference doctrines do not matter.


Barry Friedman on Justice Scalia and the Police
Michael Ramsey

At The Atlantic, Barry Friedman (NYU):  How Did Justice Scalia Shape American Policing? Donald Trump wants a Supreme Court appointee like the formidable late judge. But Scalia had a controversial and sometimes conflicted opinion on law enforcement. 

From the discussion:

[W]hen it came to the parts of the Constitution that governed policing ... Scalia often was the critical swing vote. And not infrequently he was the one writing the majority opinion.

One place Scalia’s passing might very well spell change is with regard to the Miranda ruling. ... Conservatives hate the Miranda rule, and Scalia was no exception. ...

When it comes to searches and seizures, though—the lifeblood of policing, governed by the Fourth Amendment to the Constitution—the picture of Scalia is far more complicated.

In recent years, Scalia emerged as the Fourth Amendment’s greatest champion, often ruling against the police. He was particularly steadfast in guarding the sanctity of the home, or limiting police use of new technologies. He wrote the main opinion in United States v. Jones, holding that the Fourth Amendment governed long-term GPS surveillance of a suspected drug dealer’s car. And he wrote a critical opinion saying that the police have to get a warrant before they use new technologies to gather information from inside homes—in that case the police had used a thermal heat sensor to figure out the defendant was growing pot with heat lamps. ...

[But] even though Scalia could be extremely protective of Fourth Amendment rights, the real curiosity is that he didn’t seem to think you should have any remedy if your rights were violated. He loathed the exclusionary rule—which requires tossing out evidence collected in violation of the Constitution—and played a big part in dismantling it. ...

Some commentary on Justice Scalia has accused him of following his policy preferences despite his purported attachment to originalism.  As this essay illustrates, criminal procedure is one area that is hard to square with that thesis.  If one is looking for pro-police or anti-police tendencies, Scalia seems all over the place.  But thinking in terms of originalism, his record is neither "conflicted" nor "a curiosity."  To take two of Professor Friedman's examples, Miranda and the exclusionary rule are judicial inventions; that, and not partiality to the police, accounts for Scalia's hostility to them.  But the Fourth Amendment, given its original meaning, plausibly imposes material limits on modern police practices, and so Scalia was much more sympathetic to such claims.

Ironically, Professor Friedman concludes:

Merrick Garland, President Barack Obama’s pick for the Court ... is a former prosecutor whose rulings typically are pro-police. In a Garland-for-Scalia swap, the police actually might have more license, rather than less.

(Via How Appealing).


Ian Bartrum: Wittgenstein's Poker
Michael Ramsey

Ian Bartrum (University of Nevada School of Law) has posted Wittgenstein's Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism on SSRN. Here is the abstract:   

The last two decades have seen an explosion in scholarship exploring the intersection between linguistic indeterminacy (usually vagueness), as analyzed within the philosophy of language, and legal interpretive theory. This essay claims that such indeterminacies are an inevitable, and even valuable, part of contested language games—such as our contested constitutionalism—which employ linguistic uncertainty to further different communicative or political ends. It further suggests that two particular types of constitutional indeterminacy—intentional contemporary ambiguity and incidental evolutionary vagueness—present substantial problems for public meaning theories of originalism. Resolving an intentional ambiguity seems to require at least some recourse to authorial intentions, which are beyond the scope of public meaning originalism; and historical usages can offer little guidance when new constitutional problems reveal a latent textual vagueness.

When combined with the problems of intentional vagueness—which the New Originalists already concede to modern construction—these types of indeterminacy seriously undermine the practical value of public meaning originalism as an interpretive method. Indeed, many—if not most—of our non-trivial constitutional disputes are contests over just these sorts of textual uncertainties. In all of these cases, then, the New Originalist must either resort to intentionalist theories—with all of their well-known epistemological and jurisprudential problems—or concede the question to modern judicial construction. This, in turn, means that public meaning originalism’s claims about the existence of “empirical” constraints on our constructive practices can inform only a small, and relatively uncontroversial, set of actual constitutional controversies.

An interesting and challenging paper.  Without dismissing the problems of indeterminacy in public meaning originalism, I would make two quick points.  (1) Most originalist approaches do not suppose that there will be 100% certainty on most questions; the inquiry is rather which of two competing interpretations more probably reflects the original meaning.  (2) Although public meaning originalism focuses on the meaning of the text, that does not prevent originalists from consulting historical sources, both as to the common usage of words and as to the goals and interpretations of the enactors.  These points, among others, make the inquiry more manageable than it might appear.

Also see some of my further thoughts on originalism and indeterminacy here.


Originalism, Changing Meanings, and Stable Meanings
Mike Rappaport

One of the criticisms of originalism by historians is that originalism fails to take into account that word meanings change over time.  In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed.  Therefore, originalism is problematic because it assumes that traditional word meanings are stable.

Unfortunately, this charge by historians turns out to be largely mistaken.  If some originalists assume that word meanings were stable, then that would be an argument against those originalists.  But it would not condemn originalism generally, since nothing in originalism requires that word meanings be stable.  And in fact, I believe very few, if any, originalists assume that words meanings are unchanging.

How does originalism properly address the issue of changing meanings?  If an originalist were seeking to interpret a constitutional term, then the originalist would look to the meanings that existed at the time of the Constitution.  If the traditional meaning continued to exist at that time, then that would certainly be one possible meaning.  But a good originalist would also look and see if a new meaning had developed.  If a different meaning had developed, then of course the originalist would consider that as another possible meaning.

If there were two possible meanings, that would mean the term was ambiguous.  The originalist should them employ the interpretive rules at the time to resolve the ambiguity.  One consideration in choosing between the two meaning is which one was more common.  Another would involve the evident purpose of the provision.  A third would be the structure of the document.  There are, of course, others.

The criticism of originalists for assuming stable meanings are often wide of the mark.  It is sometimes claimed that the originalist argument, which maintains that the Executive Power Vesting Clause provides the President with a limited foreign affairs powers, assumes stable meanings.  But this is not true.

This originalist interpretation argues that the language vesting the executive power in the President provides him with the powers that executives, such as the King of England, typically enjoyed in the 18th Century, minus the executive powers that were given to the Congress (such as the power to declare war) and minus the executive powers that were limited in other ways (such as the power to appoint executive officers, which was to be exercised only with the advice and consent of the Senate).

While this interpretation relies on the traditional meaning of executive power, it does not simply assume that meaning continued.  It shows that this meaning fits the structure of the Constitution, providing for an interpretation that fully accounts for the foreign affairs powers of the federal government.  And it also shows that the traditional understanding of executive power continued to be used in the Philadelphia Convention itself as well as after the Constitution was adopted by officials as different as Thomas Jefferson and Alexander Hamilton.

Stable meanings certainly make the job of originalist interpretation easier.  But good originalism does not assume that they exist and originalist interpretation can be done without them.